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UP TO DATE I am proud of the last few issues of The Defender. We hope the articles
are helping you with your practice and providing some interesting
WITH HCCLA EVENTS reading. If you would like to contribute an article, please contact me at
1ST COURT OF APPEALS We will try to include it in a future issue.

In this issue…
301 FANNIN Joseph Ruiz writes about the DWI “Disconnect Defense”, while Jake Gatlin

02.06.20 :: 2ND ANNUAL HOUSTON

takes a clinical look at substance use disorders and treatment options.
Chris Hesse discusses the (hopefully) rare occasion of representing a
lawyer on a criminal case.
Judith Snively also gives us a District Clerk update. Danny Easterling

recaps new changes in DWI and Marijuana laws, and David Mitcham
explains new DA policies for prosecuting Marijuana cases. While Kim
HOUSTON TEXAS 77024 Ogg’s administration has been transparent about new policies, getting
discovery in a timely manner is far more critical. A lawyer cannot effectively HCCLA NEWS ROUND UP

represent a client without discovery – and a thorough investigation. Jeff
Wax provides helpful tips on how to use an investigator.

The feature story by Robb Fickman highlights another important issue –

Visit the calendar at judicial misconduct. In Lonesome Dove, based on a cattle drive in the late CROSSING THE RUBICON
1800s, Woodrow Call who plays the role of Charles Goodnight exclaims,
outlines HCCLA’s history of dealing with bad judicial behavior.
There are many fine judges in Harris County. Unfortunately, some are
illegally revoking bonds, and others are not always patient, dignified and DEFENDING THE LAWYER CLIENT
courteous to our members as required by the Judicial Canons. Canon 3(B) BY D. CHRIS HESSE
(4) also holds judges responsible for the conduct of their court personnel.
In the military, if a soldier acted like some coordinators, they would be
placed on permanent KP (Kitchen Police) duty, peeling potatoes. There is
enough stress in this profession. Courtesy and mutual respect go a long
way. Remember the Bible says, “Be ye kind one to another.”
If you find yourself having an issue with a judge or court staff, first consult PERSUADING JURORS TO ACCEPT
the HCCLA Judicial Ambassador to try to resolve the problem. You can A DISCONNECT DEFENSE
also notify a Board Member (see page 4). Document the problem and BY JOSEPH RUIZ
names of people involved. If the conduct continues, HCCLA can and will
take action, as noted in Robb Fickman’s article. PROFESSIONAL INVESTIGATORS
Finally, if you have an ethical question, call the HCCLA Ethics Hotline at
(713) 518-1738. All calls are confidential, and the hotline has proven to
be a great asset to our members. Remember: You can show your client a
copy of the offense report, but you may NOT give them a copy.

Thank you to all who contributed to this issue of The Defender.

Happy Holidays!


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 BY DAVID MITCHAM
Marvin Zindler for 31 years. He was also rated by Super Lawyers

(2014-18). Mr. Pelton is a Past President of HCCLA (1985-86), NEWS FROM THE
Founder and Chairman of HCCLA and TCDLA Ethics Committees
(since 2011), a recipient of the Jim Bowmer Award for Professionalism
from the Texas Bar College (2012); HCCLA Richard “Racehorse” Haynes Lifetime
Achievement Award (2016); TCDLA President’s Awards (2011-18); and a United States
Congress Proclamation 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.


the defender MARVIN O. TEAGUE

past presidents

a word from your president

1971-2018 WILL GRAY

Neal Davis
ROBERT PELTON “May you live in interesting times,” goes the Chinese Regarding the CJC, the building was opened in
CANDELARIO ELIZONDO curse. And this year has no doubt been interesting 1999. In the 20 years since, it has flooded twice
for our Harris County criminal justice system. We and been closed twice. Post-Harvey, it has reached
have been waging a multi-front battle that will the point that the CJC lines are longer than ever.
affect how we practice criminal law for many years, Defendants, lawyers, witnesses, and families
if not decades, to come, with the Managed Assigned languish in the rain, heat, or cold for half an hour to
Counsel Program for court appointments and the up to an hour to get their day in court. It is an utter
2019-2020 reconstruction of the Criminal Justice Center. disaster and not fixable, especially in the long term.
KENT A. SCHAFFER I have appointed a committee, which Chris Tritico
Hccla officers & board
Additionally, skirmishes abound involving several
DAN COGDELL member complaints about newly-elected judges’ is chairing, to endorse building a new Criminal
JIM SKELTON behavior, ranging from revoking bonds without Justice Center. We have successfully campaigned
GEORGE J. PARNHAM a hearing or due process to being disrespectful, to have criminal judges open the stairwells, but of
PRESIDENT BOARD OF DIRECTORS GARLAND D. MCINNIS unprofessional, and hostile towards our members. course that does not fix the larger problem.
Regarding the Managed Assigned Counsel (MAC), Regarding judicial complaints, we will be notifying
it will involve a central authority rather than judges
judges that we take seriously their unlawfully
PRESIDENT ELECT JIMMY ARDOIN DANNY EASTERLING appointing private lawyers to indigent defendants. revoking bonds without notice or a hearing. We are
MARK THIESSEN STACI BIGGAR WAYNE HILL The Texas Indigent Defense Commission (TIDC) in the process of drafting a resolution for the judges
LORI BOTELLO RICHARD FRANKOFF has voted to fund $2.9 million over several years so they know we mean business. We will demand
VICE-PRESIDENT CHRISTOPHER DOWNEY W. TROY MCKINNEY for the county courts to set up a MAC. No proposal them to stop engaging in the illegal activity. If the
CYNTHIA HENLEY was put forth for the district courts and none was judiciary’s illegal conduct continues, the HCCLA
STANLEY G. SCHNEIDER Board will take action to stop it. We have done it
voted on, so there is no funding for them yet. It is not
WENDELL A. ODOM, JR. before, as Robb Fickman explains in his article
clear whether district courts will reach a consensus
ROBERT J. FICKMAN on a MAC. in this issue. This has included successfully filing
PATRICK F. MCCANN complaints for illegally revoking bonds when a
TREASURER RAND MINTZER Two-thirds of the county’s 22 felony judges would
MARK BENNETT defendant did not have a lawyer. We will not hesitate
JUSTIN C HARRIS TODD OVERSTREET need to support a Managed Assigned Counsel
to file complaints again.
DAMON PARRISH II JOANNE MUSICK (MAC) proposal for those courts to join an amended
PAST PRESIDENT JED SILVERMAN NICOLE DEBORDE version of the grant. In September 2019, the It is an honor to represent the best criminal defense
DOUG MURPHY J. JULIO VELA EARL D. MUSICK Houston Chronicle contacted all the felony court bar in the United States. It is crucial that HCCLA
SARAH V. WOOD CHRISTOPHER L. TRITICO judges to poll their support for a MAC program. support our members so they can continue to be the
T.B. TODD DUPONT, II Seven said they did; the remaining 15 declined to best. To that end, rest assured your Board and I are
CARMEN M. ROE comment or did not respond. The TIDC seems to doing everything we can for you.
JOANNE MUSICK be open to many of the thoughts we have advanced
TYLER FLOOD as your representatives on the differences between
felony and misdemeanor appointments.
6 7


2019 HCCLA

new members
Celenne Beck
Damaris Carol Betancourt
Sylvia E. Carrion
Kimberly Cleary
Lori DeAngelo
Cameron Dellis
Tong Jin
Charles Pelowski
David Rushing WHEN

Ronnie Yeates

new student members

Bradley Haggard WHERE
Noah Andrew Feldman
Jacob Julio Vela

new affiliate members PREFACE

Private Investigator HCCLA has
Jeff Wax
Atlantic International Associates always tried to
maintain a positive and
professional relationship
2 1 2 0 WA L K E R S T with the judiciary. For many
HOUSTON TEXAS 77003 years we would quietly approach
the judiciary when we thought they were
hello, baby! violating their Judicial Canons. Ultimately,

Sponsor the Party! we realized that in some cases our informal
visits were not enough. We were going to have
to file judicial misconduct complaints against some
judges. What follows is a brief history of HCCLA’s judicial
Leonardo Jose Ruiz H C C L A . O R G / H O L I D AY misconduct complaints.
11.11.19 @ 8: 1 1 a m 7 lb s. 1 1 oz.
8 9


HCCLA’S FIRST JUDICIAL Campbell sua sponte raised Walker’s Walker hired counsel. Campbell who engaged in unethical or illegal unique for two reasons. First, it was his way. Judge Jones then
MISCONDUCT COMPLAINT: bond to $100,000 and had him taken reinstated the illegally revoked actions. So we moved forward. the first complaint we had ever filed immediately instructed the bailiff
DISTRICT COURT JUDGE into custody. bond only after Walker had complied against a sitting appellate judge. to take her into custody.
JOAN CAMPBELL with Campbell’s illegally imposed It is noteworthy to mention that Second, although the complaint was
Walker had not violated any condition bond condition. after the complaint was filed, in a signed by then HCCLA President There was no lawful basis for
In the mid-2000s, it was custom of bond. To the contrary, Walker had relatively short period, ALL district Patrick McCann, he was not alone. the defendant’s bond revocation.
and practice for District Courts to complied with all bond conditions. Three months later, Walker got some court judges discontinued the long- Mark Bennett and I gathered I happened to be in the courtroom on
illegally revoke bonds when clients Thus, there was no legal basis for good news. On August 25, 2006, standing illegal practice of revoking signatures from about 100 members the day this occurred. I approached
on bond had not hired counsel. Judge Campbell to revoke Walker’s his case was dismissed. Thus, even bond for not hiring counsel. who wanted to show their support the bench and respectfully advised
HCCLA leadership repeatedly talked bond. He spent the weekend in jail, though the charges were dismissed, for this particular complaint. Judge Jones that he could not legally
to the judiciary. We encouraged them even though there was no legal basis Walker spent 10 days in the Harris While it might not seem like a big take someone into custody simply
to stop the illegal bond revocations. for him to be in custody. County Jail. deal now, at the time, this was a because her lawyer was late. Judge
No amount of talking seemed to get big step. HCCLA was founded in Jones was not interested.
them to follow the law. On Monday, May 8, 2006, the late
Victor Blaine appeared in court on
He spent 10 days in 1970. It took 36 years for HCCLA
to cross the Rubicon and file its first
DISTRICT COURT JUDGE To the court coordinator’s credit, he
The HCCLA Board passed an behalf of Walker. Mr. Blaine sought jail, not because he complaint, sending a clear message recognized the questionable bond
important resolution drafted by Troy the reinstatement of Walker’s bond In 2008, Judge James Keeshan was revocation and put the defendant’s
broke the law, but to the Harris County Judiciary:
sitting as a visiting district court judge
McKinney. The resolution warned and Walker’s immediate release from Abuse of power by any member of case back on the docket for Monday
the District Courts that if they illegal custody. That did not occur.
because his judge the Harris County Judiciary would in Montgomery County. Keeshan when Judge Ritchie would return.
continued to illegally revoke bonds, After revoking the bond, Campbell broke the law. no longer go unanswered. HCCLA ordered a Writ of Attachment and To Judge Ritchie’s credit, when he
HCCLA would take action. The went on vacation and left the visiting would actively pursue judicial had an HCCLA member taken returned to the bench on Monday
resolution was disseminated to all judge no instructions. Walker That is why HCCLA filed its first misconduct complaints against into custody. Troy McKinney and and learned of Judge Jones’ illegal
District Court judges. HCCLA fairly remained in jail for the next week, judicial misconduct complaint abusive judges. I appeared in court with a Writ bond revocation, he immediately
apprised the judiciary of the law and notwithstanding the fact there was against Judge Joan Campbell. of Habeas Corpus that afternoon. reinstated the defendant’s bond.
warned that those who violated it We were supported by the
no legal basis for his incarceration. In 2006, before the complaint was
would face legal consequences.
On Monday, May 15, 2006, Mr. filed, there was a ham-handed THE JUDICIAL Montgomery County criminal The HCCLA Board voted to file
a judicial misconduct complaint
On November 8, 2006, HCCLA filed Blaine returned to court seeking attempt to bully HCCLA out of filing MISCONDUCT defense bar. There was no lawful
basis for Keeshan’s arrest of our against visiting Judge Robert Jones.
it first Judicial Misconduct Complaint the release of Walker. By this time, it. I had an otherwise innocuous back
COMPLAINTS THAT member. Keeshan released our On August 31, 2011, then HCCLA
against then Judge Joan Campbell, Campbell was back on the bench. hall conversation with Judge George member from custody. The HCCLA President Earl Musick signed
248th Criminal District Court. Upon request by Victor Blaine, Godwin, the former presiding judge Board filed a judicial misconduct and filed the complaint. HCCLA
As President of HCCLA, it was my Campbell reinstated Walker’s of the 174th Criminal District complaint against Judge Keeshan. was later advised that the State
duty to sign and file the complaint $10,000 bond and released him from Court. In the middle of a friendly Commission on Judicial Conduct

with the State Commission on illegal confinement. conversation, without any segue, had issued a private sanction against
Judicial Conduct. Godwin stated that any attack by In August 2007, HCCLA filed a Judge Jones. Thereafter, Judge
Walker was illegally confined in the ROBERT JONES, VISITING
the defense bar on his brethren or judicial misconduct complaint Robert Jones was no longer serving
The case that gave rise to the Harris County Jail from May 5-15, “sistren” of the judiciary, would be DISTRICT COURT JUDGE
against Judge Denson. as a visiting judge in Harris County.
complaint against Campbell was 2006. He spent 10 days in jail as the viewed as an attack on all of them.
In 2011, Judge Robert Jones was
State of Texas v. Walker, Cause No. direct result of Campbell’s illegal Godwin’s speech was soon dubbed
sitting as a visiting judge for Judge
1065585. The basis for the complaint revocation order. It is illegal for the “Judicial NATO Speech”.
SHARON KELLER, COURT Herb Ritchie. On a Friday
was her illegal revocation of judges to revoke a defendant’s bond HCCLA leadership concluded that the WILLIAM HARMON,
speech was a not-so-subtle attempt OF CRIMINAL APPEALS
Walker’s bond. for not hiring a lawyer. Yet that is afternoon Judge Jones called a HARRIS COUNTY CRIMINAL
precisely what Campbell did. to bully HCCLA out of filling a In October 2007, HCCLA filed female defendant to the bench. COURT AT LAW NO. 2
Walker’s family made his $10,000 legitimate complaint. The defendant was present and
a judicial misconduct complaint
bond. On Friday, May 5, 2006, You might say the proof was in had not violated any condition
Judge William Harmon had a large
Walker timely appeared in court. the pudding. Between Campbell’s That did not work. If anything, against Justice Sharon Keller. The MADD plaque on display on his
Godwin’s comments confirmed our basis of the complaint was her of bond. Judge Jones asked the bench. The MADD plaque was on
Judge Campbell called Walker to the illegal bond revocation on May 5th
deeply felt belief, that as lawyers we refusal to accept a last-minute death defendant where her lawyer was. public display and large enough to
bench. Upon learning that Walker and bond reinstatement on May She responded that she believed
were duty bound to stand up to judges penalty appeal. This complaint was be seen from the jury box.
had not yet hired a lawyer, Judge 15th, only one thing happened - he was in another county and on
10 11


Judge Harmon’s display of the In 2017 and 2018, there were 1, 2019, the Commission notified With these ongoing complaints in to litigants and lawyers. The professional manner. Most of us are
MADD plaque was in clear violation investigations regarding the courts’ HCCLA that these judges had mind, it seems prudent to make certain requirement that judges be patient, respectful of the judiciary and seek
of the Judicial Canons. A number of systematic denial of Personal received private sanctions. The that all judges and lawyers are aware dignified and courteous to all lawyers no conflict. Most of us try to be
HCCLA leaders as well as a number Recognizance Bonds. Commission offered no reason for its of certain relevant provisions of the is mandatory, not optional. honest and polite advocates. All we
of DWI lawyers approached Judge decision. Texas Code of Judicial Conduct. ask is that the judiciary and their staff
Harmon and asked him to remove A federal lawsuit was filed against Judges who routinely treat defense treat us with the patience, dignity and
the plaque from his bench. It was the Harris County Criminal Courts. The Commission recently drew CANON 2: counsel in a rude and hostile courtesy the Canons require.
suggested that the plaque would be Federal District Court Judge strong, well-deserved condemnation Avoiding Impropriety manner are violating the clear
more appropriately displayed in the Lee Rosenthal found that over from the Houston Chronicle for its dictates of Canon 3B(4). Judges I am certain HCCLA would be
and the Appearance of
judge’s chambers. Judge Harmon an extended period of time the lack of transparency. who are routinely rude and hostile delighted to never file another
Impropriety in All of the to our members are acting in direct judicial misconduct complaint.
refused to remove the plaque. Harris County Criminal Courts had
systematically denied PR Bonds. Judge’s Activities violation of the Canons and subject While we approach the judiciary in
Attorney Tyler Flood filed motions to a misconduct complaint.
Judge Rosenthal issued orders that A judge shall comply with good faith, we will also continue to
for the removal of the plaque. required the county judges to stop be vigilant in holding the judiciary to
What followed was a retaliatory and the systematic denial of PR bonds on FOR FUTURE JUDICIAL the law and should act at all
times in a manner that
Finally, the Canons provide that court
staff subject to the court’s direction,
the standards required by the Texas
ugly attack by the court on Tyler
Flood and his clients. Tyler’s cases
misdemeanor cases.
MISCONDUCT promotes public confidence in are also required to be “patent,
Code of Judicial Conduct.

were all immediately set for trial, Information obtained during this COMPLAINTS the integrity and impartiality
of the judiciary.
dignified and courteous” to litigants
notwithstanding the fact in most time indicated that Harris County and lawyers. A judge should make
of the cases discovery was far district courts had also engaged in The HCCLA Board regularly certain that their bailiffs and court
Judges who ignore the law,
from complete. a practice of systematically denying receives and investigates misconduct
particularly regarding bond matters, staff all comport their conduct with
PR bonds. The HCCLA Board complaints against the judiciary. the Canons. A judge who allows their
may run afoul of this Canon and
The HCCLA Board voted to file considered this matter. The Board takes all complaints bailiffs to daily shout at and verbally Robert Fickman
be subject to a judicial misconduct has practiced
a Judicial misconduct complaint seriously. Historically, the Board
complaint. Judges who illegally abuse defendants, is not complying
against Judge William Harmon. In an unprecedented decision, the has only filed a judicial misconduct with the Canons. criminal
HCCLA Board voted to file judicial revoke lawful bonds may be violating defense in
On April 14, 2015, then HCCLA complaint after conducting a due State and
misconduct complaints against all of Canon 2.
President Carmen Roe filed the diligence investigation. Federal Court
complaint. The complaint was based the above-named judges.
Recently, there have been a series CANON 3: CONCLUSION for 36 years.
on the retaliation against Tyler Flood He is AV-rated
In May 2018, then HCCLA President of complaints regarding ongoing Performing the Duties of No matter what our role, participating by Martindale-
and the court’s public display of the
MADD Plaque.
Tucker Graves signed complaints judicial misconduct. Judicial Office Impartially in the criminal justice system is Hubbell, a Past
against the 6 named judges. Sarah and Diligently stressful. We should recognize President of HCCLA, past
Board Member of TCDLA, and a longtime
In January 2016, the MADD plaque Wood authored the complaints. THE THREE PRIMARY
that we all have stressful jobs

ADJUDICATIVE vocal critic of the criminal justice system.

was unceremoniously removed The complaints were based on the COMPLAINTS ARE AS FOLLOWS RESPONSIBILITIES
and we should work to treat each He received the HCCLA President's Award
from the bench. In February 2016, other with courtesy, patience and in 2018; and HCCLA Torch of Liberty

district court judges systematic
HCCLA was advised that the State denial of PR bonds. Certain district court judges are (4) A judge shall be patient, professionalism. Defense counsel, Award in 2019 for his many years fighting
Commission on Judicial Conduct judges, prosecutors, bailiffs, clerks, to eliminate Harris County's "Plea Mill" and
not following the law and are dignified and courteous to systematic denial of PR Bonds.
issued a private sanction against In letters dated September 5, 2019, sua sponte revoking lawful litigants, jurors, witnesses, probation officers, coordinators and
Judge William Harmon. the State Commission on Judicial personal recognizance bonds; lawyers and others with whom court reporters all have stressful
Conduct notified HCCLA of its jobs. If we all treat each other with a

2 Certain district court judges are the judge deals in an official

decision on the 6 complaints. capacity, and should require little more kindness and a little more
routinely treating defense
similar conduct of lawyers, and respect, we can make the courthouse
The notification stated that on August counsel in a rude and hostile a much more pleasant place to work.
CABANISS, MICHAEL 26, 2019, the Commission ruled manner; and of staff, court officials and others
MCSPADDEN, JEANNINE subject to the judge’s direction After practicing criminal law in state

that each of the named judges
BARR, CATHERINE EVANS received a Public Admonishment Certain county and district courts and control. and federal court for 36 years, I can
AND GEORGE POWELL for their misconduct. Later, are daily allowing or encouraging attest to the fact that most defense
(HARRIS COUNTY DISTRICT their bailiffs to address all clients Per Canon 3, a judge shall be
without explanation, the Commission patient, dignified and courteous lawyers do their best to represent
COURT JUDGES) changed its rulings. On November in a rude manner. their clients in a conscientious and
12 13
Generally: When an attorney licensed to practice law
The Ethical Rules


in Texas has been convicted of an Intentional Crime or
has been placed on probation for an Intentional Crime
Two documents govern our ethical responsibilities as
with or without an adjudication of guilt, the Chief
lawyers. The first is the Texas Disciplinary Rules of
Disciplinary Counsel shall initiate a Disciplinary Action
Professional Conduct (TDRPC). The second is the Texas
seeking compulsory discipline pursuant to this part. The
Rules of Disciplinary Procedure (TRDP). “Professional
completion or termination of any term of incarceration,
Misconduct” is defined in TRDP Rule 1.06 and covers,
probation, parole, or any similar court ordered supervised
in part, certain crimes:
period does not bar action under Part VIII of these rules
as hereinafter provided. Proceedings under this part are
4 Engaging in conduct that constitutes barratry as
not exclusive in that an attorney may be disciplined as a
defined by the law of this state . . .
result of the underlying facts as well as being disciplined
upon the conviction or probation through deferred
7 Conviction of a Serious Crime, or being placed
on probation for a Serious Crime with or without an
adjudication of guilt.
Tex. Rules Disciplinary P. R. 8.01

DEFENDING THE 8 Conviction of an Intentional Crime, or being placed

It is also important to point out TRDP 8.02. “Conclusive

Lawyer Client
on probation for an Intentional Crime with or without
Evidence: In any Disciplinary Action brought
an adjudication of guilt.
under this part, the record of conviction or order of
deferred adjudication is conclusive evidence of the
Tex. Rules Disciplinary P. R. 1.06(W)
attorney’s guilt.”
Barratry can be prosecuted as a crime in this State under
by D. Chris Hesse Tex. Penal Code Ann. sec. 38.12 (West 2013). However,
Tex. Rules Disciplinary P. R. 8.02
it’s exceedingly rare to see an attorney accused and
We’ve worked hard to get our law degree…3 years of Say nothing of the lawyers who are accused of crimes. Finally, look at TRDP 8.05 to get a comprehensive picture
prosecuted for such a crime.
grueling study and the hardest week-long test ever! Their law licenses now face serious jeopardy. I have of what “Compulsory Discipline” is:
While we’ve dreamed of giving up the law and living on had the honor of defending a fellow lawyer from such a A “Serious Crime” is defined in TRDP Rule 1.06 as
a beach somewhere, we simply cannot give it up. It’s in criminal accusation. I considered it an honor since that “. . . barratry; any felony involving moral turpitude;
Disbarment: When an attorney has been convicted of an
our nature to fight for others. The law is our mistress and lawyer, who did not practice criminal law, held me in Intentional Crime, and that conviction has become final,
any misdemeanor involving theft, embezzlement, or
our mistress is jealous. such high regard. They chose me to defend them when so or the attorney has accepted probation with or without an
fraudulent or reckless misappropriation of money or
many other great lawyers were at their disposal. Many of other property; or any attempt, conspiracy, or solicitation
adjudication of guilt for an Intentional Crime, the attorney
While we may never admit it, we all do it to some extent. us have defended a colleague from criminal accusations. shall be disbarred unless the Board of Disciplinary
of another to commit any of the foregoing crimes.”
When we receive our monthly Texas Bar Journal we And we took special care since, deep down inside, we Appeals, under Rule 8.06, suspends his or her license
may first look to the Disciplinary Actions section to knew that “but for the grace of God, go I.” We strived to practice law. If the attorney’s license to practice law
Tex. Rules Disciplinary P. R. 1.06(AA)
see if anyone we know is there. Is there someone from extra hard for this special lawyer client. has been suspended during the appeal of the criminal
our geographic area? If we find somebody familiar we conviction, the Chief Disciplinary Counsel shall file a
An “Intentional Crime” is defined in TRDP Rule 1.06 as motion for final judgment of disbarment with the Board
look at why they were disciplined. Then we think to In many circumstances the lawyer client tries to take “(1) any Serious Crime that requires proof of knowledge
ourselves, “sure sucks to be them.” We note how they charge of their own defense. They want the helm and of Disciplinary Appeals. If the motion is supported by
or intent as an essential element or (2) any crime affidavits or certified copies of court documents showing
were disciplined and ponder ways to avoid such action they second-guess. It’s difficult for them to avoid the involving misapplication of money or other property
against ourselves and ways to avoid getting our name urge. They are acutely aware of certain aspects of the that the conviction has become final, the motion shall be
held as a fiduciary.” granted without hearing, unless within 10 days following
listed there for all our colleagues to see. It’s the height of law, much more than the average citizen. Defending
professional embarrassment. the lawyer client can be challenging in that regard. the service of the motion pursuant to Rule 21a of the Texas
Tex. Rules Disciplinary P. R. 1.06(T) Rules of Civil Procedure, upon the attorney so convicted
It is similar to the concept of “doctor, heal thyself!”
Some of us may have received notices from the State Medical doctors have often joked that having another or his or her attorney of record, the attorney so convicted
Of vital importance, as the criminal defense attorney, files a verified denial contesting the finality of the
Bar of Texas (SBOT) indicating a grievance had been MD as a patient can be taxing.
is knowing whether the crime your lawyer client stands judgment, in which event the Board of Disciplinary
filed against us. Those notices ask for a response.
accused is an “Intentional Crime.” Intentional crimes Appeals will immediately conduct a hearing to determine
If we were lucky, the grievance was dismissed out of While I won’t go into detail about the circumstances of
subject the lawyer client to “Compulsory Discipline” the issue. If no Disciplinary Action is pending at the
hand by the SBOT contemporaneously with the notice my lawyer client defense, this article points out some
pursuant to TRDP 8.01: time the conviction becomes final, disbarment shall be
of the grievance. Either way, we shuddered with some important issues we should be aware of before defending
trepidation. At best: “thank God I dodged that bullet.” the lawyer client. Remember, a colleague’s law license is initiated by filing a Disciplinary Action.
At worst: “when will I find time to respond to this?” on the line.
Tex. Rules Disciplinary P. R. 8.05
14 15
It’s apparent that “Intentional Crime” covers any are deferred probations. The point is Class C accusations Prostitution: Holgin v. State, 480 S.W.2d 405 Following are not crimes of moral turpitude:


“Serious Crime” which includes a mens rea element of must be treated just as seriously as any other crime. (Tex. Crim. App. 1972); Husting v. State, 790
S.W.2d 121 (Tex. App.–San Antonio 1990, no pet.) Felony drug possession: In the Matter of Lock,
“intentionally” or “knowingly.” If the “Serious Crime”
your lawyer client is accused of does not have intentionally Article 55.01 of the Texas Code of Criminal Procedure 1
54 S.W.3d 305 (Tex. 2001).
authorizes an expunction of a Class C deferred under
or knowingly alleged in the charging instrument, then
you are safe. However, realize that deferred adjudication certain circumstances. But avoid falling prey to thinking 7

Purchase of a child: In the Matter of Thacker,
881 S.W.2d 307 (Tex. 1994).
2 Delivery of marijuana: Hernandez v. State, 976
probation for a “Serious Crime,” having an element of “we can plead to a deferred disposition now, and in 6 S.W.2d 753 (Tex. App.—Houston [1st Dist.]
months after the crime, get this whole thing expunged. Indecent exposure: Polk v. State, 865 S.W.2d 627 1998), pet. ref’d).
intentional or knowingly, will subject your lawyer client
to Compulsory Discipline. Don’t make this mistake! No one will ever know.” I would shun a gamble with 8
(Tex. App.— Fort Worth 1993, pet. ref’d).
your lawyer client’s license this way. What if someone Misprision: Duncan v. Board of Disciplinary
learned, before the expunction, that your client had
9 Failure to stop & render aid: Tate v. State Bar 3 Appeals, 898 S.W.2d 759 (Tex. 1995) (crimes
The Misdemeanor Class “C” plead to a deferred Class C triggering “Compulsory of Texas, 920 S.W.2d 727 (Tex. App.— Houston involving moral turpitude are those that involve
Discipline?” Not a good risk! [1st Dist.] 1996, writ denied). dishonesty, fraud, deceit, misrepresentation,
“Compulsory Discipline” has also been prescribed for deliberate violence, or that reflect adversely on a
Theft: Milligan v. State, 554 S.W.2d 192 (Tex. person’s honesty or trustworthiness.)
Class C crimes. For example, in the Texas Bar Journal, 68
Tex. B.J. 753 (Sep. 2005), on June 30th, 2005, the Board The Felony Involving 10 Crim. App. 1977).
of Disciplinary Appeals signed a judgment of disbarment
against one Thomas Ronald Adkins of Houston, because
Moral Turpitude
11 Aggravated Assault by a man on a woman: 4

Aggravated assault with SBI: Turton v. State
Bar of Texas, 775 S.W.2d 712 (Tex. App.—San
he plead guilty to Class C theft in 2004. The Board defined Jackson v. State, 50 S.W.3d 579 (Tex. App.— Antonio 1989, writ denied)(not on its face a felony
What is a felony “involving moral turpitude?” It’s Fort Worth 2001, pet. ref’d); Ludwig v. State, 969 involving moral turpitude—look at the
this theft as an “Intentional Crime” under the Texas Rules interesting to note, as criminal defense practitioners,
of Disciplinary Procedure. The Board further noted that S.W.2d 22 (Tex. App.— Fort Worth 1998, pet. circumstances of the offense).
we may consider all felony convictions as “crimes of ref’d); Hardeman v. State, 868 S.W.2d 404
the criminal conviction was “not fully probated, although moral turpitude” with which we can impeach someone (Tex. App.— Austin 1993), pet. dism’d, 891 Misdemeanor possession of marijuana: Bell v.
probation was available.” Misdemeanor theft, even a
Class C, falls squarely within the definition of “Serious
on the witness stand to suggest they are untrustworthy.
See, Tex. R. Evid. 609. Put simply, though, crimes of
S.W.2d 960 (Tex. Crim. App. 1995). 5 State, 620 S.W.2d 116 (Tex. Crim. App. 1980).
Crime.” It also is included in the definition of “Intentional moral turpitude usually involve some sort of dishonesty Juvenile delinquency: Rivas v. State, 501 S.W.2d
Crime” since it requires proof of knowledge or intent.
(There is no such thing as a reckless or negligent theft).
or deception. But because the TRDP does not define the
term, we must look to case-law to determine how “moral
12 Assault by a male on a female: Trippell v. State,
535 S.W.2d 178 (Tex. Crim. App. 1976); 6
918 (Tex. Crim. App. 1973).
Furthermore, even if Mr. Adkins had accepted a deferred Zamora v. State, No. 13-10-146-CR (Tex. App.—
turpitude” has been interpreted: Corpus Christi 2010, no pet.) (not for pub.); Unlawfully carrying a weapon: Trippell v. State,
adjudication probation under Article 45.051 of the
Code of Criminal Procedure, he still would have been Hardeman v. State, 868 S.W.2d 404 (Tex. App.— 7
535 S.W.2d 178 (Tex. Crim. App. 1976).
subjected to “Compulsory Discipline.” Article 45.051 of 1

Sexual assault of a child. In the Matter of GMP,
909 S.W.2d 198 (Tex. App.— Houston [14th
Austin 1993, pet. dism’d).
Gambling: Neill v. State, 258 S.W.2d 328 (Tex.
the Code applies to Class C cases prosecuted in municipal
or justice courts, whereas Article 42.12 “Community
Dist.] 1995, no pet.).
13 Communicating a false alarm: Op. Tex. Att’y 8
Crim. App. 1953).
Supervision” Sec. 5. “Deferred Adjudication, Community Gen. DM 96-140 (1996).
Supervision” applies to deferrals of felonies and Class 2 Failure to identify (giving false information):
Misdemeanor DWI: Shipman v. State, 604

Lester v. State, 366 S.W.3d 214 (Tex. App.— Murder and indecent exposure: Polk v. State,
A and B misdemeanors. Article 45.051 “Suspension of
Sentence and Deferral of Final Disposition” states: “On
Waco 2011, pet. ref’d). 14 865 S.W.2d 627 (Tex. App.— Fort Worth 1993,
S.W.2d 182 (Tex. Crim. App. 1980); Janecka v.
State, 937 S.W.2d 456 (Tex. Crim. App. 1996).
a plea of guilty or nolo contendere by a defendant or on a pet. ref’d).
Lying to a police officer: (filing false report) Lape
finding of guilt in a misdemeanor case punishable by fine 3
v. State, 893 S.W.2d 949 (Tex. App.— Houston
Swindling: Sherman v. State, 62 S.W.2d 146 10 Public intoxication: Ochoa v. State, 481 S.W.2d
only and payment of all court costs, the judge may defer
further proceedings without entering an adjudication of
[14th Dist.] 1994, pet. ref’d); Robertson v.
State, 685 S.W.2d 488 (Tex. App.— Fort Worth
15 (Tex. Crim. App. 1933).
847 (Tex. Crim. App. 1972).

guilt and place the defendant on probation for a period Reckless conduct: Patterson v. State, 783 S.W.2d
not to exceed 180 days.”

1985, no pet.) (“no clear cut criteria” for
moral turpitude.”) 16 Bank fraud: Searcy v. State Bar of Texas, 604 11 268 (Tex. App.—Houston [14th Dist.] 1989,
S.W.2d 256 (Tex. Civ. App. - San Antonio, 1980). pet. ref’d).
TEX. CODE CRIM. PROC. ANN. art. 45.051(a)
(West 2015) 4

Mail fraud: State Bar of Texas v. Heard,
603 S.W.2d 829 (Tex. 1980). 17 Theft, shoplifting: Milligan v. State, 554 S.W.2d
192 (Tex. Crim. App. 1977). 12 Assault: Valdez v. State, 450 S.W.2d 624 (Tex.
Crim. App. 1970).
TRDP 8.05 draws no distinction between Article
Tax evasion: In re Humphreys, 880 S.W.2d
42.12 Sec. 5 deferrals and Article 45.051 deferrals.
Consequently, Class C deferred dispositions fall squarely

402 (Tex. 1994) (whether a case involves moral 18 Public lewdness: Escobedo v. State, No. 10-05-
00056-CR (Tex. App.— Waco 2010, no pet.) 13 Disturbing the peace: Garza v. State, 532 S.W.2d
624 (Tex. Crim. App. 1976).
turpitude is a question of law); In the Matter of
within TRDP 8.05. TRDP 8.05 covers any deferred (not for pub.)
Birdwell, 20 S.W.3d 685 (Tex. 2000).
probations, regardless of whether the deferral is a Criminal Trespass: Hutson v. State, 843 S.W.2d
“deferred disposition” or a “deferred adjudication.” Both 14 106 (Tex. App.—Texarkana 1992, no pet.).
16 17
Criminal Mischief: Gonzalez v. State, 648 S.W.2d
15 Compulsory Discipline


740 (Tex. App.—Beaumont 1983, no pet.)
Not to Be Confused with
Soliciting bonding business: Op. Tex. Att’y Gen. Discretionary Reporting of
16 GA-299 (2005) (violations of Tex. Occ. Code
Unprofessional Conduct
by Jake Gatlin, LCDC
Sec. 1704.304 (soliciting bonding business in


a police station, jail, prison, detention facility, or
other place of detainment). This article has specifically focused on the criminal
allegation and how that allegation can trigger


“compulsory discipline,” in the sense that the Chief
Significantly, there are several cases listed above
Disciplinary Counsel has a mandatory duty to initiate a
involving an attorney disciplined by the State Bar of
Disciplinary Action pursuant to TRDP 8.01. It is not to be

Texas. For example, in Tate v. State Bar of Texas, 920
confused with the more general concept of “Professional
S.W.2d 727 (Tex. App.— Houston [1st Dist.] 1996, writ
Misconduct” in which an attorney can violate any of
denied), Tate was charged with felony failure to stop and
the Texas Disciplinary Rules of Professional Conduct,
render aid. Tate hit three boys with his pickup, killed
and another attorney would have an affirmative duty
one of the boys, and then left the scene of the accident
to report such misconduct, pursuant to the provisions
without rendering aid. He eventually received four years
of TDRPC 8.03. Please note that such affirmative duty
confinement for three counts of failure to stop and render The Underlying Problem Consequences
to report applies to “…conduct that raises a substantial
aid. He was subsequently disbarred for a felony involving Most people simply want to satisfy their Initially, painful consequences of substance
question as to that lawyer’s honesty, trustworthiness or
moral turpitude. As far as the State Bar was concerned, abuse may arise, including problems with
fitness as a lawyer…” Id. TDRPC 8.03, therefore, gives natural instincts of material and emotional
leaving the scene of an accident involving injury was a security, companionship, and sex. And when physical, emotional, and mental health. Other
the potentially reporting attorney discretion in deciding
crime of moral turpitude. problem areas may include interpersonal
when a violation of applicable rules raises a “substantial” these needs are threatened, they may resort to
question as to honesty, trustworthiness, or fitness. a variety of outlets to change the way they feel. relationships with family, friends and
Comment 2 to TDRPC also brings up this “substantial” These compensating “remedies” may include employers. These and additional problems
Summary of Avoiding question and notes that “A measure of judgment is, any combination of work, relationships, such as financial impacts or encounters
Compulsory Discipline therefore, required in complying with the provisions of attention, hobbies, media, gambling, food, with the judicial system may be sufficient
this Rule,” as well as, “The term ‘substantial’ refers to the tobacco, sex, alcohol and drugs. deterrents for a user to stop or moderate on
seriousness of the possible offense and not the quantum their own. Of course, one wouldn’t know if an
If your lawyer client faces a felony involving moral
People generally drink alcohol and use drugs individual’s one-time bad decision indicates
turpitude, charged as “intentionally” or “knowingly,” of evidence in which the lawyer is aware.” Id.
because they like the effects. They may they have a full-blown substance use disorder.
and the evidence is overwhelming against them, consider
It is clear, when reading TDRPC 8.03, and TRDP 8.01 be partaking simply to relax, release their However, for an alcoholic or addict whose
plea bargaining down to a misdemeanor involving moral
in conjunction, that there is discretionary reporting inhibitions, or fit in. They may need mood- life has become unmanageable, they may
turpitude. As long as the misdemeanor involving moral
when it comes to any type of professional misconduct, altering substances to face the challenges of be in the grip of a progressive, chronic,
turpitude is not barratry, theft, embezzlement, or fraudulent
or reckless misappropriation of money or other property but there is no discretion given to the Chief Disciplinary day-to-day living. Mood-altering substances and sometimes fatal illness. This disease
may be used to cope with the underlying is characterized by physical cravings and a

(or any attempt, conspiracy, or solicitation of another to Counsel to initiate Disciplinary Action when it comes to
“compulsory discipline.” effects of parental lack of nurturing, fear of warped mental obsession.
commit any of those crimes), then your client does not fall
abandonment or a spectrum of trauma. Or,
under the definition of “Intentional Crime.” Consequently,
they steer clear of “Compulsory Discipline.” Finally, some individuals may also be genetically The Solution
predisposed to substance abuse. However, there is a solution to substance abuse
be wary of any misdemeanor “Intentional Crime.”
and dependence. The medical and psychiatric
Treat all misdemeanors falling under the definition of
Over time, “social or recreational use” of community classify alcoholism and addiction
an “Intentional Crime” very seriously, even a Class C.
Chris Hesse is a Houston native, who mood-altering substances by at-risk individuals as progressive illnesses, rather than a moral
now resides and practices in Amarillo, may progress toward substance dependence issue or lack of willpower. The modern
Texas. He is an ACS-CHAL Forensic and even uncontrollable addiction. The grave recovery movement began in 1935 with
Lawyer-Scientist, who focuses primarily health and social consequences of chemical the introduction of 12-step support groups.
on DWI cases. Chris represents clients
dependency often lead to: institutionalization, Today, many levels of care are available
at trial, on direct appeal, and on post-
conviction habeas corpus. tragedy or death. The progression may be through licensed treatment centers. Treatment
interrupted by a “moment of clarity” or an combined with support groups can address
intervention by the abuser’s family, associates, the underlying issues causing the behavior
employer or the criminal justice system. This that leads to substance abuse. And, statistics
112 W. 8th Ave., Ste. 617 / Amarillo, Texas 79101
may lead to a lifelong commitment to recovery. show better success rates when medical and
Tel: (806) 350-6785 / Fax: (806) 350-6786
18 19
by Joseph Ruiz


behavioral health care are supported by effective ▪ Those who take part in an IOP and sober living
recovery programs. These programs apply concepts housing are twice as likely to avoid relapse than
of personal accountability, self-awareness, behavior

jurors to
those who only lived in drug-free housing.
modification, support community, and service. ▪ This same group is 10 times more likely to avoid
relapse than those who take part in neither sober
Candidates for treatment who resolve to get well living or outpatient treatment.
after “hitting a bottom” may enter recovery programs

accept a
▪ Studies have found that 50 to 70 percent of
on their own and learn to practice new principles of participants in an IOP reported abstinence at
thought and behavior. Many substance abusers are follow-up.
court-ordered to enter treatment. Those experiencing
▪ According to the APA, the American Psychiatric
more severe consequences often require higher levels

Association, when compared with inpatient care,
of care. The continuum of care for substance use
IOP services have at least two advantages:
disorders when combined with support groups may
▫ Increased Duration of Treatment
involve parts of this sequence:
▫ The opportunity to engage and treat the

chemically dependent while they remain in
▪ Medical Detoxification
their home environments, which affords them
▪ Residential Treatment the opportunity to practice newly-learned
▪ Partial Hospitalization Programs behaviors in the real world.
▪ Intensive Outpatient Treatment
▪ Sober Living Environment Conclusion Overview of the Defense & Ground Zero
▪ Aftercare Groups Research evidence from the NCBI study indicates
that not only is Intensive Outpatient Treatment as The DWI practitioner is familiar with the concept of the
▪ 12-Step Programs disconnect defense – the idea that if most, or all, of the evidence
effective as residential care in substantially reducing
▪ Faith-Based Programs & Communities in a DWI case fails to match up with a really high alleged BAC
current substance use, but is also as effective in
helping clients achieve longer term abstinence. (.16 or higher), there must be a problem with the reliability of
Research offers compelling evidence for successful the breath or blood result and the jury should, therefore, acquit
Furthermore, Intensive Outpatient Treatment is more
outcomes when alcoholics, addicts, and substance accessible and cost effective. the accused1. While this sounds like a feasible, logical, and
abusers engage in a comprehensive treatment commonsense defense in theory, the reality is that persuading
program over a period of at least 18 months to 4 years. 1 Dennis McCarty, PhD, et al; “Substance Abuse Intensive jurors to accept the disconnect defense is a monumentally
This foundation can instill new principles, thinking, Outpatient Programs: Accessing the Evidence”; National difficult task. We lawyers spend countless hours attending
Center for Biotechnology Information (NCBI); National
and behaviors leading to a lifetime of recovery from
Institute of Health (NIH); June 1, 2014. CLEs, scouring treatises, expert witness transcripts, scientific
alcoholism and drug addiction. peer-reviewed articles, appellate decisions, CLE materials, and
the like. However, I believe that having a mastery of the legal
Intensive Outpatient Programs – and scientific concepts that arise in a DWI trial, alone, won’t be
Industry Statistics enough to get us there. Specifically, we need to be able to take

Jake Gatlin is a Licensed

Why engage in an extended continuum of care Chemical Dependency off our lawyer hats and put on our private citizen hats in order
Counselor and serves
including intensive outpatient programs? as the Clinical Director of
to be able to effectively persuade jurors to reject the State’s
According to the National Center for Biotechnology First Step To Recovery, purported science. We need to be able to connect with jurors on
Information (NCBI)1, Intensive Outpatient Programs LLC. First Step To Recovery a basic human, visceral level in order to move them towards that
(IOPs) are an important part of the continuum of care provides Intensive Outpatient NOT GUILTY verdict. This requires the dedicated trial lawyer
Treatment to adults either
for alcohol and drug use disorders. IOPs allow those directed by the criminal justice to pursue a greater understanding of human nature, psychology,
who have gone through medical detoxification and system or those seeking help to overcome substance abuse and how we all make decisions2. Combining knowledge of the
who no longer need 24-hour supervision to receive of alcohol and drugs. Jake has over 20 years of experience as psychology of influence and persuasion with the knowledge
a chemical dependency treatment professional at all levels
psycho-social support, facilitated relapse management of care including detox, residential, partial-hospitalization, of the legal and scientific intricacies involved in a DWI case
and coping strategies, and individual symptoms and outpatient, and aftercare. Jake has worked with both will give us all the best chance at success when we present our
needs addressed. The value of IOPs has been verified adolescents and adults. Jake has also held the positions disconnect defense to the jury.
of Community Liaison for the Mayor of Houston’s Drug
through a number of industry studies, and IOPs are Prevention Program, Founder/President of the Partnership
proven to substantially reduce alcohol and drug use for a Drug-Free Houston, and Vice-Chairman of the Dual So why do we need to make this investment of time learning
of those who attend consistently. Diagnosis Task Force. ▪ 713.462.3900 ▪ about things not directly in the legal or scientific arena?
7676 Hillmont #201, Houston, Texas 77040 Look no further than the comments following our local news
coverage of any criminal case in general, and high-BAC DWI
cases in particular. There we will find incredible, unfiltered
20 21


statements that should give us a sense of the
pulse of our community’s jury pool. We can
make the mistake of chalking this up to them
being fanatics or internet trolls, or we can face
the reality that these same folks are gladly
appearing for jury duty, looking to further
their agenda. If even one of these persons gets
on our jury, our disconnect case likely just
turned into a “let’s-connect-the-dots-for-the-
state” case.

Ultimately, in order to persuade a jury to accept

our disconnect defense, we’ve got to be selling it to the
right jury, and, by that, I mean a group of individuals
that will at least be receptive to our message, even if just
for a limited window of time. Dr. Cialdini’s research
teaches us that the best communicators capitalize on
what he calls privileged moments for change in which
an audience becomes receptive to a message before
they actually experience it – “pre-suasion.” While we
can’t hope to change a person’s attitudes, beliefs or
feelings about a subject, we can alter a person’s focus of
attention just before requesting something from their misstatement of the law is incompetence or a ploy days in your client’s life. The jury needs to know there us. The psychological studies show that a person’s need
them, thereby increasing our chances of successfully to gain an unfair advantage, the potential jurors will not is a real human being sitting there at the defense table. to reciprocate is intensely strong. We should, therefore,
persuading them. Let’s turn to how this concept can play appreciate it. Meanwhile, we’ve elevated ourselves as Before getting into the substance of our voir dire, how do let the panel know that, before getting into their personal
out in jury selection. credible authorities on the law, shrouding us with more we emotionally disarm the potential jurors in order for feelings about serious topics, we think it’s only fair that
persuasive power and appeal. At all times during the them to be completely open with us? After all, without we be completely open and honest with them about us.
Voir Dire trial, defense counsel must strive to be the most credible doing this, how can we possibly expect to get the internet In the spirt of total transparency, share with them the
Discarding the Role of Underdog by person in the courtroom. trolls out using strikes for cause, thereby allowing us to worst thing and best thing going on in your life right
Establishing Rapport, Trust, & Credibility not squander our precious peremptory strikes? Perhaps now7. As an example, I tell the potential jurors about
We’ve all seen the State’s first PowerPoint slide. It has during the judge’s or government lawyer’s voir dire, how we recently lost my father after a 2-year battle
Prior to beginning our portion of the voir dire, we are their fancy seal and it says “The State of Texas vs. John some of the jurors were open and honest about biases with AML Leukemia as the worst thing, and how my
underdogs to say the least. Heading into trial on my .161 Doe - DWI.” We need to battle for that authoritative and are already locked down for cause. If so, great, but, wife and I finally got pregnant after several years and 5
blood draw with a T-bone accident, I knew it would be credibility. Our slide shouldn’t mention the State of more often than not, there is a lot of head nodding and IVF cycles as the best thing. This completely changes
an uphill battle, no matter how favorable the video3.

Texas at all. It should instead say “The Jury Trial of Mr. people going through the motions and not really being the atmosphere in the courtroom. You’ve humanized
Because of the high BAC, we aren’t supposed to win this John Doe” and have our firm logo on it. I believe this at open about their feelings. People going along to get yourself, whereas the government’s lawyer probably got
case, which means we really have nothing to lose. But we least places more of their focus on themselves, our client, along aren’t going to fight for your client’s freedom. I up there like a robot and didn’t say anything meaningful
have to have the mindset that we are absolutely going to and us instead of it being all about the State of Texas guarantee that most persons with biases haven’t said a about themselves. In less than 90 seconds, we have, at
win. I suggest getting into the prosecutor’s head leading word at this point. This is the moment when you have the very least, made the panel much more receptive to
up to the trial date. Check in to see what the court’s To establish rapport, we should talk like a prospective to use the rule for reciprocation to your advantage. our subsequent narrative of the issues involved in the
trial docket looks like ahead of time. Let the prosecutor juror rather than like a lawyer. For example, there is no It’s a simple enough principle: those who have given case. And, at best, they’re now flat out rooting for us
know that you’re really excited to try this case. Put need to impress them with legal jargon like voir dire. benefits to someone are entitled to benefits from them to win. This is the moment where we discard the role
them on their heels a bit. They’re the ones with all the We should simply refer to it as “jury selection” when in return5. Dr. Cialdini explains that “requesters who of underdog and move forward knowing that we’re now
pressure to win. conducting our voir dire. When it’s our turn, we should hope to commission the pre-suasive force of the rule for the favorites.
take a brief moment to re-introduce ourselves and our reciprocation have to do something that appears daring:
Listen extremely carefully during the government’s voir client, placing both hands on the client’s shoulders, letting they have to take a chance and give first without a formal Brainstorming what you will say in your introduction
dire. If they in any way misstate the law, we should not the panel know that you’re honored and proud to be here guarantee of compensation6.” The idea is that if we’re will take a lot of emotional energy and introspection.
hesitate to object. If the judge sustains the objection, representing Mr. John Doe4. Impress upon them that the completely open and vulnerable with the panel, they will It forces you to connect with yourself and to find your
the prosecutor’s credibility has taken a big hit. Whether next couple of days will be some of the most important feel obligated to reciprocate and be open and honest with unique voice, which is so hard to do in the modern,
22 23


distracted world we live in today. In order to persuade calculating lawyer. In this manner, hopefully, we’ve with PowerPoint should be to use mostly cartoons, charts, I think you are automatically guilty of DWI if you drink
a jury of the righteousness of our cause, we must find stricken all of the jurors that could not possibly consider and pictures to help them understand and reinforce key ANY amount of alcohol and then get behind the wheel of
our true, authentic voice. This will make us a relatable the disconnect defense, and are now left with peremptory concepts. The few slides that do have text should consist a vehicle, and cause an accident.
human being instead of a paid mouthpiece or a slick challenges that we can use to further solidify our final of no more than 3 scaled questions, touching on sensitive
lawyer. Get in touch with the real you and be vulnerable jury. topics in the case that concern you. Everything else A) Strongly disagree
enough to show the jury the real you. As a caveat, should be mostly pictures accompanied by short phrases.
this all has to come from an authentic place; otherwise, I hate to admit it, but I was resistant to adopting the use of The 3 questions should all have a consistent grading, B) Disagree
the jurors will smell it from a mile away and sense an PowerPoint in trials. I feared that it could interfere with i.e., favorable answers would be A or B and problematic
C) Agree
attempt at manipulation. connecting with the panel. Now I couldn’t imagine not or even strike-for-cause-type answers would be C or D.
using it. I’ve included the winning PowerPoints I used This way, when you’re deciding on how to exercise your D) Strongly Agree
Once you get jurors openly discussing their feelings in voir dire and the closing argument for the disconnect peremptory strikes, all other things being equal between
about the important issues, and sharing personal life acquittal I recently won. This was my first time ever using potential jurors, you have something objective on which
experiences, make sure to connect on a personal level a PowerPoint8. As we all know, everyone is attached to to base your decision. If the prosecutors object, argue it’s not an improper
with the person that just opened themselves up to you. their phones and tablets. We live in a world where people commitment question, but rather a question to test the
For example, if someone shares that they lost their son are literally getting addicted to their screen time. Let’s Heading into my .161/blood draw/T-bone accident trial, jurors’ understanding of the presumption of innocence.
or daughter in a drunk driving accident and they can’t be give potential jurors what they want: screen time while I was obviously concerned about the prospect of a juror Obviously, at the end if you’re struggling with whom to
fair, take a few moments to acknowledge their strength they’re in court! I notice most prosecutors using slides voting guilty automatically if the evidence showed my strike, you want to err on the side of the As and Bs being
and courage in sharing, and to feel their pain. Don’t with lots of text on them. That’s because they’re using client drank some amount of alcohol, then drove, and on your jury. They’ve demonstrated by their responses
just quickly move on from them because you’ve locked their PowerPoints as a crutch. Potential jurors aren’t was subsequently involved in an accident. I recommend that they are much more likely to be receptive to the
them down for cause. Be a human being rather than a interested in reading legal concepts. Instead, our goal asking the entire panel to raise their hands if they’ve ever disconnect defense. Of course, you also want to look for
been involved in a car accident. You should get 95% of innocent explanations for how this accident happened,
their hands up. Then follow up with how many have been i.e., awkward intersection layout, texting, GPS, sleep
involved in an accident where alcohol was not in any way deprivation, distracting passengers, etc.
involved. You’ll probably still have 95% of the panel
with their hands up. It’s an easy way to point out that Remind jurors that our client’s innocence is the only
being involved in an accident doesn’t necessarily mean presumption in any criminal case. In other words, there
someone is intoxicated (you can reinforce this concept can be no presumption that a breath or blood test is
when you cross-examine the officer. He will readily admit always reliable, valid, and accurate, or that the result
that alcohol is NOT a contributing factor in most accident necessarily corresponds to John Doe (switched vial
scenes the police respond to). You can follow up with theory in a blood case). Further, it’s not up to us to prove
several jurors regarding what did cause the accidents they that a result is inaccurate and/or falsely attributed to our
were involved in. After this “pre-suasive” discussion, client. Rather, the Government has the burden to prove
you can then present a couple of slides that ask how beyond a reasonable doubt that their result is accurate
the potential jurors feel about the following statements: and is, in fact, indicative of our client’s blood and not

someone else’s. In other words, at the end of the case, a

I think you are automatically guilty of DWI if you drink juror should never be telling defense counsel, “you didn’t
ANY amount of alcohol and then get behind the wheel prove the result was inaccurate.”
of a vehicle.
In a disconnect defense case, everything comes down to
A) Strongly disagree whether the jury believes the government’s “science”,
i.e., the BAC result. Therefore, the credibility of the
B) Disagree
government’s expert witness will be a huge factor that
C) Agree goes into the jury’s decision-making process. Because
of this, I recommend using 3 different PowerPoint
D) Strongly Agree slides to prime the jury to closely scrutinize what an
expert testifies to and not just take what they say at face
value simply because they’re an expert. Try to come
up with something in the news or pop culture than can
be analogized to the breath or blood expert in order
24 25


to reinforce the idea that just because an expert says Okay - I Agree There Is A Disconnect, Also look at the entire batch run to see if there are .000s to a trial by jury, because the jury is the accused citizen’s
something does not necessarily make it so. We shouldn’t But Why? or other BACs around .08 or under. In my .161 case, last line of defense. For the final slide, put up a picture
just ignore our commonsense and let someone else think 7 of the 30 citizen samples tested reflected a BAC of of the statue of liberty, the constitution, or American flag.
As trial lawyers, we must be a surrogate for the jury.
for us because of their credentials. After all, expert .000, while 2 others were at or below .08. If you have When the State’s “science” is riddled with commonsense,
Know that the above question will be in their minds as
witnesses are there to help the trier of fact understand a truly exculpatory video/disconnect case, arguing that reasonable doubt due to the overwhelming majority of
they sift through the evidence. At this summer’s Rusty
the evidence or determine a fact in issue9, not completely your client’s sample was accidentally switched suddenly the other evidence being consistent with sobriety, the law
Duncan seminar, Troy McKinney shared some tips on
replace the jury as the factfinders. The jurors must be becomes much more plausible with this one document demands a verdict of NOT GUILTY, because we err on
presenting a disconnect defense. He took something as
empowered by reminding them they are the sole judges in evidence. In fact, you can argue it’s the only logical the side of freedom in America.
simple as a picture of a Great Dane and a Chihuahua
of the facts proved. explanation for why there is such a huge disconnect
standing next to one another to create a big dichotomy.
between what we can see and hear on video versus the
The slide has an arrow pointing to the Great Dane with 1 See Mark Thiessen’s articles on the Disconnect Defense, including
An example that proved effective for me was putting up lab’s number.
the caption saying “I have a government DNA test
an image of the gigantic plume of chemicals covering the
report that says this is a Chihuahua. Do you believe it?” conquering-giant-blood-tests-using-disconnect-defense
greater Houston area following the ITC chemical plant Remember that we don’t have to prove human error
It then says “Do you have to know why the report is 2 Thank you to Mark Bennett for recommending we all read Influence:
fire in Deer Park with the short caption “ITC’s Expert: happened. In fact, how could we ever prove it happened?
wrong to know that is must be wrong?” This example The Psychology of Persuasion and Pre-Suasion: A Revolutionary
Air Quality Poses No Danger.” If you live in Deer Park The analyst will always testify that they’ve never Way to Influence and Persuade, both by Robert B. Cialdini, Ph.D.
can be a very powerful way to present a disconnect
and have been training for a marathon, are you going accidentally switched vials. Rather the government must 3 In this case, the client did extremely well on SFSTs, his speech was
defense, especially where there isn’t anything specific
to listen to that expert and go for a 6-mile run in those prove beyond a reasonable doubt that this didn’t happen. not slurred, his eyes were not bloodshot, and no one on scene
in the breath or blood discovery that you can use to
conditions, or are you going to question the narrative Note that jurors don’t have to agree as to why they are smelled alcohol on him.
discredit the result.
and the expert’s motivations and biases? You’d want choosing to not give weight to the reported BAC result. 4 Thanks to Jed Silverman for this tactic.
proof. A lot of people have been watching Chernobyl on Some can say they don’t know why it’s wrong, they just 5 Pre-Suasion, page 153.
While this is a great default position when one has an
HBO. Many of the Soviet Union’s government experts’ know it must be wrong, given all the evidence of sobriety. 6 Id. at 154.
exculpatory video performance, and still allows for a
responses to that disaster would be great fodder for this Some can say they are unsure whether the sample the 7 Thanks to Mark Thiessen for this introduction. See Eleven Essential
viable disconnect defense, in order to further increase
type of example. By focusing attention on experts early lab received was viable for analysis (chain of custody, DWI Tactics, Voice for the Defense, June 2014.
our chances of securing an acquittal we should strive to
and often, i.e., what Dr. Cialdini calls the frontloading short draws, bad venipuncture technique). Others can 8 Thanks to Brent Mayr and Sean Darvishi for so graciously sharing
give the jurors cold, hard facts that they can hang their
of attention, we’re creating an environment where jurors say the sample must have been accidentally switched, PowerPoints with me to get started.
hats on to give the reported BAC result no weight in their
will be empowered to closely scrutinizing the state’s star i.e., human error in the lab. Each juror can have different 9 TEX. RULES EVID. 702.
decision-making process10. Otherwise, the government
witness later during the trial rather than blindly accepting reasons for their reasonable doubt, so long as they each 10 To this end, I recommend hiring Amanda Culbertson to do an expert
will argue the excellent video performance is due to review of your discovery packets. She’s always able to find issues
everything they say as truth. have at least a reasonable doubt that goes toward whether
tolerance rather than innocence. that you can use to strengthen your disconnect defense.
the government proved intoxication.
Regarding the constitutional principles that apply in all
In my experience, jurors place a lot of weight on issues
criminal cases, including the various burdens of proof, In closing argument, acknowledge that what you’re
I highly recommend Brent Mayr’s ring the bell analogy
surrounding breaks in the chain of custody of the blood
asking the jury to do is hard and it will require a lot of Joseph Ruiz was born in Spain and raised
sample. Just because case law says that breaks go to in Houston, Texas. He and his wife of
PowerPoint slides. Once again, we’re giving potential courage, but it’s the right thing to do. Imagine that all 6 years are expecting their first child
the weight of the evidence rather than its admissibility,
jurors a visual aid that will help them better learn these your jurors live next door to police officers and after the in November. He graduated from
doesn’t mean we shouldn’t be making a huge deal of

concepts. While I used to use the NCDD staircase, I trial they will eventually talk to them about the work they Vanderbilt University in 2001 before
the issue on cross-examination. While the lab typically
really like Brent’s example, because it equates proving did in that courtroom. They must be empowered to have obtaining his J.D. from the St. Mary’s
is extremely thorough in documenting chain of custody University School of Law in 2004. He
a criminal case beyond a reasonable doubt to ringing the the guts and independence to stand up for the people.
once they receive it, the police department that handled began his career working in civil litigation
bell at the carnival (nearly impossible). Also, within the There should be no shame in them telling their cop
the sample prior to it getting to the lab normally does before transitioning towards his true calling
PowerPoint, you can change the text as needed to fit your neighbors that they had to find the client NOT GUILTY - criminal defense. He is a member of the Harris
not. By establishing that the lab’s analysis is only as
case theory. For example, in my case with the switched because the government’s evidence just didn’t add up. County Criminal Lawyers Association, the Texas Criminal Defense
good as the integrity of the sample they receive from
vial theory, under the beyond a reasonable doubt column, Show a slide of one of the disconnect pictures used in Lawyers Association, and the DUI Defense Lawyers Association.
the police agency, we can successfully undermine the Mr. Ruiz tried 300 jury trials in traffic, municipal, and JP courts
I inserted “I have no reasonable doubt in my mind that voir dire and add the caption “The government wants
result. For example, if the sample was stored at the police before moving into the state court arena, where he’s tried over
the test was valid and accurate, and that it’s Mr. Doe’s you to believe Mr. Doe’s BAC was a .18 at the time of
department for a few days before being sent out, where 40 cases to verdict. He has secured numerous acquittals and has
blood.” By doing so, I’ve already focused the panel’s driving, even though he had the normal use of his mental obtained over 500 dismissals for his clients. Most recently, he
exactly was it? Under what conditions was it stored?
attention on the idea that the reported blood result may and physical faculties and didn’t smell like alcohol???” secured a not guilty verdict in Harris County for a young man in a
Was it refrigerated? If it was mailed to the lab, was in
not even correspond to my client’s blood. Remind them that they individually, and collectively, are .16 blood draw/accident, which led to a .266 blood draw dismissal
sent in a cooler? The blood analyst will readily admit
the exclusive judges of the facts proved and the weight to on the eve of trial the following week. Before that, he won a
that they have no knowledge or control over the quality contentious trial in Brazoria County for a client charged with deadly
give the evidence, including the government’s purported
of the sample they receive from law enforcement. conduct after accidentally shooting someone with an AR-15. When
BAC results. We don’t do trials by police officer or trials
Garbage in, garbage out. he’s not competing in the courtroom, he enjoys competing on the
by expert witnesses for a reason. The accused is entitled basketball court.
26 27

You are responsible for recommendations made to


should take the time to schedule a face-to-face meeting with
the investigator during which s/he should seek constructive your client and for the ultimate selection of an
input from those of us who are proficient in fact-finding. investigator just as you are for the direct legal
Simultaneously, s/he should provide the investigator with services you provide throughout your
all available relevant information including documents, involvement in the case. Accordingly,
reports, and statements, which the investigator needs to it is to your benefit to

read, evaluate and assimilate before their investigation
commences. Failure to provide such relevant information
will guarantee a duplication of efforts.

interview a
prospective investigator
before deciding whether you make a

How to Choose One, and

referral to him or her. In evaluating your investigator,
you should review his/her experience in serving other
Just as attorneys attorneys. Ask for references. You should also ask for a

How to Use One – specialize, so do investigators.

It is important to ensure that the individual
sample of the types of reports s/he might furnish you and
review them for content, quality, objectivity, attention to

whom you hire to conduct your investigation has the detail, grammar, clarity of thought, insight and especially
technical competency, objectivity, intuitiveness, personality, usefulness. Because the investigator may be working
creativity and the requisite background and skills to design with and for your client, attempt to assess what kind
By Jeff Wax and carry out the type of investigation that will provide of impression he or she will make upon that client.
you with substantive information. You want an investigator A negative impression may undermine your relationship
This is particularly true in a case that who will "leave no stone unturned". You should understand with your client. The selection process is complete when
requires obtaining answers to questions that that some investigative agencies might be unsuitable for you have successfully matched your firm's long-range needs
the average attorney would be unable to ascertain due to your needs because they lack the knowledge to properly with the investigator's capacity to undertake wide-ranging,
time constraints, lack of contacts, or even because of not and effectively conduct a law-related investigation. For creative discovery.
F. Lee Bailey began his knowing where to look. that reason, many large law firms employ several different
career as an investigator. Undoubtedly investigators. I cannot stress enough that it is essential to
that experience helped him in his more noteworthy Some law firms have turned over investigative find the investigator with the right qualifications every time When Do You Use An Investigator?
vocation. Most lawyers realize the need for a superior responsibilities to paralegals, expecting them to abandon you make a referral. This is the key to obtaining results that Following are several cases from our files, which illustrate
investigation but actually deal with this vital aspect of their LEXIS for a trench coat. Although paralegals may are efficacious to your case. the value of investigator’s services. An individual from
their work with the same enthusiasm they show towards have other skills that will allow them to work well with Georgia had allegedly absconded with a large sum of
going to the dentist. Perhaps this reluctance is due in part investigators, in general, they do not have the resources Taking the time to assiduously evaluate your own needs money entrusted to him by his employer. The employer’s
to the unsavory mystique, which has relentlessly haunted available to the qualified, licensed professional investigator before locating and interviewing a qualified investigator attorney contacted me when he believed the subject
the professional private investigator since the days of Sam nor the “street sense” that professional licensed investigators will be well worth the effort. Simply stated: exercise might have moved to an area within the state where
Spade and The Maltese Falcon. have garnered from many years “in the trenches”. due diligence in the selection process. Undoubtedly, the I provide investigative services. Although there were active
most desirable quality an investigator must possess is warrants for the suspect’s arrest and the Georgia authorities
Nearly all attorneys who have actively practiced law in the Investigative methods have changed exponentially over the honesty. When an individual’s credibility has been called were willing to extradite, law enforcement agencies
state of Texas for a few years have no doubt met a private years. Many investigators now routinely use sophisticated into question it should send a message to you to become were not particularly interested in continuing to look for
investigator in one situation or another. Oftentimes, he or technology as a means of retrieving secondary source data concerned with the integrity of the information you have this individual.
she has been the person hired to assist in the discovery in almost every investigation. Access to this information is received, not to mention the desirability of your investigator
process in preparation of cases for trial. In many instances, available only to those investigators who have met stringent as a potential witness in your case. After determining that local law enforcement agencies had
however, within the adversarial process, the opposing side requirements and have been properly vetted. However, many little, if any, substantial information to offer, we proceeded
has employed an investigator who successfully uncovered lawyers are unfamiliar with the information these resources When you decide that a certain case warrants the use of with our investigation. We uncovered a trail of assumed
more information than the lawyer who relied upon his yield. For example, the Social Security Number has grown an investigator, you should consult with your colleagues names and fictitious addresses left by the suspect to
own resources and the client’s assistance in establishing increasingly important in recent years as an investigative if you are not certain whom to engage. More often than confuse authorities. Over time, however, using myriad
the facts. Thus, this valuable support to the active tool as have the various methods used in obtaining this not, other attorneys will share the names of competent investigatory resources we determined the suspect
practitioner can be of inestimable value valuable data. investigators’ whom they have employed in the past, and had moved to San Pedro, California. We subsequently
when dealing with complex facts. can objectively critique those investigators’ respective ascertained his place of employment and his current address.
Every attorney should become familiar enough with basic levels of proficiency, thoroughness and overall quality of Based upon our information California authorities arrested
investigative techniques to properly and cost-effectively work. It is advisable to undertake this process when hiring the suspect on a fugitive warrant and he was returned to
manage the investigation of their cases. In all but the a professional investigator just as it is when employing any Georgia to stand trial and ordered to make full restitution to
most conventional cases, the attorney other expert witness. his former employer.
28 29


In another instance, I became involved in a conspicuously
dubious rape case. In this matter, the state had charged the

defendant with aggravated sexual misconduct based solely specific information
upon the statements of the complainant and her female you want and define your
companion who had been with her and the defendant at the needs in writing. Be sure to set a timetable
time of the alleged incident. The complainant stated the for completion and a maximum allowable budget. On
defendant at gunpoint forcibly raped her on their first date. more protracted investigations or complicated cases, give
My investigation revealed that the complainant and assignments in phases. Sometimes a set of facts you
defendant had been engaged in an intimate relationship for discover early in the case will make the remainder of the

at least a month before the alleged incident. Pursuantly, investigation unnecessary.
we located several corroborating witnesses who refuted
the complainant's allegations. Further, we unearthed Assign any follow-up investigation as soon as possible.
information about the complainant being involved in Don't wait until contacts fade and witnesses develop
an automobile accident on the date of the purported amnesia. Be sure to point out any flaws or omissions, since
crime in which she was driving the defendant’s vehicle. any feedback you can provide will most likely enhance
results. Despite popular belief, an investigator's job is based
Since he did not have insurance, the defendant asked her to
pay for the damages to his car and the owner of the other car upon relentless determination and thankless drudgery. BY DANNY EASTERLING
involved in the collision. When she refused, he threatened
to reveal the details of her promiscuity as well as that Unfortunately, you don’t always get what you pay for. An NOW A DEFERRED ADJUDICATION questions regarding the constitutionality, as well as the
of her companion’s to their parents. It was this threat investigator’s hourly billing rate is not always a measure For the last 16 years, the Legislature has been application and collection, of this new ��” structure.
that prompted and motivated the complaint of rape against of quality. Some investigators are under the misconception considering a bill to allow Deferred Adjudication for The statute reads as follows:
the defendant. that the attorney merely passes the cost on to his client. DWI cases. The 86th Legislature passed a version,
Therefore, an investigator’s invoice, which simply states now Tex. CCP. Art. 42A.102, that operates as follows: TEX.TRANS.CODE § 709.001
When the aforementioned facts were disclosed to the “For professional services rendered: $3,000” should be Deferred is available only for �����; offenders with a TRAFFIC FINE FOR CONVICTION OF
prosecutor, he agreed voluntarily agreed to dismiss, with rejected. Use investigators who maintain careful time and BAC of under .15, and this may be non-disclosed upon CERTAIN INTOXICATED DRIVER OFFENSES
prejudice, the criminal charges against the defendant. expense records in a form suitable for sharing with your receiving a discharge and dismissal. Unfortunately for (a) In this section, “offense relating to the operating
Resume fraud is a type of deception that is appearing with clients. This is expected of lawyers and unquestionably enhancement purposes, DWI deferred is treated like of a motor vehicle while intoxicated” has the
increasing frequency. One notable case involved Janet must be required of investigators. a conviction similar to assault-family violence cases. meaning assigned by Section 49.09, Penal Code.
Cook of The Washington Post. Cook was a reporter who The bill provides an ignition interlock device is required
won a Pulitzer Prize based on a fabricated story. Later Insist upon detailed invoices, which itemize each on DWI deferred unless the judge waives it following an (b) Except as provided by Subsection (c) , in addition
investigation revealed the truth and exposed the fact that expenditure and service. Your investigator should always alcohol/controlled substance evaluation. to the ��; prescribed for the ����; offense,
she had falsified her credentials at the time she applied for be cost-effective and have your budget in mind. Be certain a person who has been ���� convicted of an
her position at The Post. to ask for the investigator's list of fees for any flat-rate The lobbyists for TCDLA have consistently ���� offense relating to the operating of a motor
services or expenses (such as mileage, photographs, online against this “false” type of deferred since it can still be vehicle while intoxicated shall pa������

Background investigations on employees become even data research fees, etc.). Find out how much you are being used as a future enhancement.
more important in the light of the increasing number of charged for travel time as opposed to field investigation. (1) $3,000 for the ��� conviction within a
lawsuits that have resulted in judgments against employers Simply stated, be sure you understand all of the costs ALL SURCHARGES ARE REPEALED 36-month period
who made no effort to check the credentials of a new involved. Chapter 708 of the Texas Transportation Code is (2) $4,500 for a second or subsequent
employee. In the typical scenario, the employee becomes repealed. conviction within a 36-month period; and
involved in a crime against a fellow employee or customer. While a commendable investigation can shape the outcome
(3) $6,000 for a ��� or subsequent conviction
The subsequent investigation reveals a history of violence, of a case, your choice of a proficient investigator will HB 2048
if it is shown on the trial of the offense that
criminal activity, deception and other forms of illegal and indubitably shape the outcome of the investigation. This bill eliminates the Drivers Responsibility Program
an analysis of a specimen of the person’s
unethical conduct that could have been discovered if the as of September 1, 2019, meaning any unpaid
blood, breath, or urine showed an alcohol
employer had taken the initiative to diligently examine the surcharges on the effective date will no longer be an
concentration of 0.15 or more at the time
employee’s past before they were hired. In some such cases, obligation, and every driver with a suspension on the
the analysis was performed.
the courts have awarded significant judgments against the Jeff Wax is a Mitigation Specialist and effective date will have it lifted. It is estimated that a
employers based on their negligent hiring practices. Criminal Defense Investigator at
million Texas drivers will have surcharge suspensions
Atlantic International Associates in (c) If the court having jurisdiction over an offense
Cypress, Texas. The focus of Jeff’s work lifted on their license. As written, the bill provides for
that is the basis for a ��; imposed under this
In summary, I suggest that when you consider a case for is in conducting life history and fact what is basically a new ��” for DWI type convictions on
section makes a ����that the person is
investigation you should be as explicit as possible. Define investigations for defendants facing or after September 1. There is no provision for a driver’s
indigent, the court shall waive all ��� and costs
the scope of the investigation and set limitations. In a tort capital punishment and juveniles facing license suspension going forward in any circumstance,
life sentences in the state of Texas. He can be imposed on the person under this section.
action, for example, if liability rather than damages is your and the bill provides for an indigency determination to
reached via email at texaslegalinvestigations@
focus, say so. Make sure your investigator understands the be made by the sentencing judge. There are obvious
gmail. com or by phone at (207) 838-7260.
30 31



by Danny Easterling HEMP, MARIHUANA & THE
All criminal defense lawyers need Nicolas Hughes from the Harris County Of course not. The lab needs to prove
to be aware of a huge change in Public Defender’s Office summarized this the origin.
the law and implications it has for problematic issue:
defending Marijuana and/or THC cases. I got a lab manager to admit, in

The governor signed HB 1325 on June 10, “I think this problem is larger than writing, that the laboratory’s standard
2019 legalizing hemp production in Texas. simply ‘is this product hemp or is
it marijuana’ but also a question of
operating procedure does not have the
capability of distinguishing between
Hemp is the same plant as marijuana whether the labs could ever differentiate types of Cannabis products under the DAVID
(Cannibis sativa) and is legally
differentiated from marijuana by THC.
between Cannabis products as required
by the law. There are legal parts of
old standards.” MITCHAM
The important definition now reads: the plant (seeds, stalks), illegal parts Nicolas reports that he filed a complaint REDEFINITION OF MARIHUANA A
of the plant (leaves, flowers), and
“hemp” means the plant Cannabis super double-plus illegal parts of the
with the Texas Forensic Science
Commission which resulted in him being
sativa L. and any part of that plant, plant (resinous extractive from the selected to serve on a task force. The The Law in the State of Texas mandating the proof plant, whether growing or not, with a THC concentration
including the seeds of the plant and specialized hairs called trichomes). Task Force Group for Analytical Methods necessary to prove criminal possession of marihuana was of not more than .3 percent on a dry weight basis.
all derivatives, extracts, cannibinoids, Products/derivatives/anything derived for Marijauana will be addressing these substantially altered as a direct result of new legislation
isomers, acids, salts of isomer, from the legal parts of the plant are important issues going forward. passed during the last session of the legislature. This Hemp and the THC contained in hemp are now excluded
whether growing or not, with a delta-9 legal, illegal parts of the plant are change in State law, redefining the legal definition of from the definition of a “controlled substance” for
tetrahydrocannabinol concentration deemed marijuana (misdemeanor on All of this brings us to the moral debate what, in fact, constitutes “marihuana” has resulted in a the purposes of the Texas Controlled Substance Act
of not more than 0.3 percent on a dry up), and super double-plus illegal parts of whether tremendous amounts of our modification to the policy of the Harris County District and is not prosecutable as “Marihuana”. The growth,
weight basis. of the plant are treated as other THC tax dollars and resources should be spent Attorney’s Office (HCDAO) with respect to the filing production, sale and use of Hemp will be regulated by
(state jail felony and up). on the testing and prosecution of our
and prosecution of marijuana charges. the State as a legal consumer product.
No labs in Texas have a quantitative citizens who possess an herb (plant based
method for THC, the sort of method a The method that labs use here (and I or extract).
laboratory would use to determine the think everywhere across the state) is On June 10, 2019 Governor Abbott signed into law, Marijuana, as defined by the Controlled Substance Act
concentration of THC in a sample. Until summarized as follows: House Bill 1325 which immediately became effective section 481.002 (26) “means the plant Cannabis Sativa
they do, lab analysts will not be able to Danny Easterling as of that date. The new law created the State of Texas’ L. whether growing or not, the seeds of that plant and
testify that they can distinguish between 1. Look for plant material. If there is a partner at Hemp Production Plan enabling Texas farmers to legally every compound manufacture salt, derivative, mixture
a substance that meets the legal definition is identifiable plant material, try to Easterling & grow and harvest the hemp plant as a legislatively or preparation of that plant or its seeds.” The term
Easterling P.C

of hemp and any other THC product. The identify it under a microscope. approved agricultural commercial crop. “Marihuana” does not include Hemp.
burden of proof on this issue is always on and has been in
2. Detect the presence of THC in practice for 39
the State and never shifts to the defense. the product. years. He is Board Texas criminal jurisprudence was impacted by this new Therefore, if the THC concentration of the Cannabis
Certified in Criminal law because Hemp and Marihuana are the same exact Sativa L. plant is less than .3 percent, then the plant
Any crime labs will have to purchase new Here’s the problem. Literally every part Law, a Past President plant, to wit: Cannabis Sativa L., with the sole difference is Hemp and not a controlled substance. If the THC
instrumentation and change certain testing of the plant contains THC. Hemp seeds, of HCCLA in 1999-2000 and HCCLA being the amount of delta-9 Tetrahydrocannabinol concentration is over .3 percent the plant is Marihuana
procedures to be able to supply that new stalks, leaves and flowers contain THC. Lawyer of the Year in 2003. He is certified (THC) content in any given plant at issue. The definition and is contraband.
evidence to the courts before criminal So what happens if you have a product for appointment to Capital Murder and First
Degree felony cases, AV Preeminent Rated by
of Hemp in the new law necessarily redefines marihuana
cases involving marijuana or THC could derived from the Cannibas plant that
Martindale Hubbell and Superb Rated 10 by in the following manner: Pursuant to the new law, a properly certified laboratory
successfully be brought to trial. contains no identifiable plant material
- say a seed cake or oil? Is testing for AVVO. He has been voted by his peers every test result is now going to be necessary in order to
Many district attorney offices across THC good enough to differentiate
year for the past 17 years as a Texas Monthly Hemp is defined by section 121.001 of Texas Agriculture prove, in a Court of Law, whether the plant substance in
the State may postpone any such magazine "Super Lawyer." He currently code to mean Cannabis Sativa L. and any part of that question is either contraband marihuana or legal Hemp.
between what sort of Cannibas product serves on the Board of Directors of the Texas
prosecution until the labs can provide the we are talking about under the law? Criminal Defense Lawyers Association.
required evidence.
32 33


HARRIS COUNTY DISTRICT ATTORNEY’S Pending cases filed prior to June 10, 2019 will be reviewed
by the Harris County District Attorney’s office in order to
OFFICE FILING POLICY determine a just resolution consistent with the law and
As a consequence of the foregoing and in order to follow the with a proper regard to the tenants of fundamental fairness.
law as now enacted by the Texas Legislature and the Office The Chief Prosecutor in the Court where such cases are
of the Governor, the Harris County District Attorney’s pending may be consulted by Defense Counsel as to the
Office will not accept criminal charges for misdemeanor State’s position in any particular case.
Possession of Marijuana (4 oz. and under) without an
admissible lab test result proving that the evidence seized PRACTICAL CONSIDERATIONS
contains a THC concentration of over .3%.
These changes in the Law raise certain practical concerns m a k e E -F il re
Felony marijuana charges will be evaluated for filing wor k t o
ther e a
for the criminal defense practitioner in advising their A s w e a ll a b le process,
purposes on a case by case basis at the discretion of the r at the
Ha r r is
n d ly a n
d wo r k
Chief Prosecutor on duty at the Intake Division of the clients as to what course of action they should employ, n a b usy yea ( D C O ) . fr ie s o f fi li n g s fo r
e e ff ic e rn
if they are detained and suspected of misdemeanor It h a s b le r k ’s O s t il l r e t u
District Attorney’s Office. Based on the available evidence t y D is t r ic t C v e y , c r im in a l om Janu
and the amount of felony contraband in question and in the marihuana possession. Coun
u r r ic a ne Ha r
t e d in r e je c t io n r a t e fr b e lo w
of H lo c a the r is
In li g h t s a r e s t il l A lt h o u g h f t h is y e a
proper instance, such charges may be taken while lab test is t r ic t c le r k
ourth o u s e
eptem b e r o
Presently, securing a properly authorized and certified deputy d nd the c t h rough S can be
results are still pending. Or, in the alternative, the filing of lo c a t io n
s a r o u
e y o u w t h a t it
o n s fo r
lab test result for THC content is very problematic as the several li k e t o g iv % we kno m on reas
felony charges may be postponed pending the results of . We w
o u ld wha t 5
most c o m
c o m p le x are and er. The
a properly conducted laboratory test certifying the THC forensic labs in Texas, by and large, do not have the current o f w h ere we d e p u t y fu r t h s fo ll o w s :
capacity to conduct such tests and produce such admissible a roadm
A s id e fr o m r e t u r n are a
r. e correct;
ms, ther
content of the evidence submitted. w e o ff e
lab results. However, it is reasonably foreseeable that s e r v ic e s t h e courtroo t is m is s in g o r in
c le r k s in CO t h a umb e r ng does
d is t r ic t of the D 1 he case n n t h e fi li
MISDEMEANOR MARIHUANA sometime in the future the forensic science industry will
r depar
t m e n t s
in t h e c
r im in a l T
e D e fe n d
a n t ’s n a m e o
o n fi le .
DIVERSION PROGRAM rise to the lucrative occasion and come up with a laboratory are othe
im p o r t a
n t r o le 2 T h
atch the
cas e in fo r m a t io n
name w
analysis protocol that can comply with the requirements p la y a n not m in g o f the a se
ystem . e spe ll take, p le
The Harris County Misdemeanor Marihuana Diversion of the new State Law. In that event, law enforcement ju s t ic e s If t h s p e ll e d a t in
Program (MMDP) will remain in effect in the following personnel may be able to provide sufficient evidence to adverten
t ly m is ment so s
t in t h e fi li n g c o m
E - F il in g Cou r fa c t in t w it h
manner: When a peace officer detains a suspect on meet the criteria of probable cause and the HCDAO may , t h e Supreme e n t e r t h is c le r k c a n a s s is
0 1 7 in a l t r ic t
suspicion of possession of misdemeanor marijuana, the thereafter reconsider the filing of charges. ary of 2 t o f C r im p u t y d is je c t io n ;
In F e b r u w it h the Cour t h e the de out a re
officer should inform the suspect that the MMDP is still an of Tex a s a lo n g e n t s t o fi li n g w it h
amendm f the number
option in which the suspect may participate. By participating and successfully completing the MMDP, adopted fi li n g o ct Court is s in g ;
the Unhappy Accused, suspected of Marihuana possession,
A p p e a ls
u le s fo r e le c t r o n ic
a n d a t ed 3 In c o r r e
s ig n ature is m
ch the
s t a t e w id
e r
C o u n t y was m
l 4 A ttorne y ’s
t it le m ust mat
If the suspect elects to enter into and complete the is a
can avoid even the possibility of future charges and ts. Harr a ll C r im
in s c r ip t io n g fi le d .
MMDP then no case will be filed against the suspect.
e le c t r o n ic fi li n g in
. A lt h o u g h 5 The de
t t it le t h a t is b e in
thereby obtain a sense of timely closure for the incident t o b e g in 1, 2018 documen
In this circumstance, no lab test, and its attendant delay, in question, without ever risking the prospect of a criminal o n J anuary a w o r k in
Courts has bee
would be necessary, as long as the suspect complies with
and completes the program. This would allow a person
im p le m e n t a t io n
, we a
n t ic ip a t e e v e n fu
resen t , D C O C rim ina l I n ta take is lo cated a
t 1301
progress t o c o me. At p C r im in a l In T h is s e c t io n
suspected of misdemeanor marijuana possession the in t h e y
ea r
in a l C o u
rt s
, 1 s t fl
oo r .
r ic t c le
option to expeditiously resolve the case with no charges changes is C o u n t y C r im y o f F r a n k li n h d e p u t y d is t if t s
e Har r m a jo r it y w it ree s h
filed rather than wait for the results of a lab test. a ll o f t h n ic and the e v ery bus e c lo c k in t h
r e e le c t r o ll . T h e r ound t h sect n.
at Law a ic t C o u rts as we g w o r k in g a r h e D .A . In t a k e
in a l D is t
r ts be in w it h t 19, the
t h e C r im d ocumen k eep up t e rs of 20
On the other hand, if the suspect elects not to go into the David Mitcham is the First Assistant p a p e r
s u b m is s
io n . t o
rst thre
e q u a r 47
a r e s t il
l some
In t h e fi iv e d 3 1 ,4
program, or subsequently fails to comply and complete the to Kim Ogg, the District Attorney of t o e le c t r o n ic a t io n k e s e c t io n r e c e n ew
t r a n s fe r
red in fo r m l In t a
and 39
,7 4 8
program, then law enforcement personnel may proceed, Harris County. He was licensed by d p e r t in e n t b s it e C r im in a c a s e s
n fi n we ny
the State Bar of Texas in 1979. From You ca the DCO w F e lo
within the two year misdemeanor statute of limitations, to E -F il in g o n r it can ne r cases.
obtain the necessary laboratory test result evidence to prove 1980 to 1984 he was a Harris County r e g a r d in
e e -F il e ic o n o
& M is demea o n
th ov
prosecutor under then District Attorney in g o n le t e x a s .g
b y c li c k w w w .e fi use
D C O P ro ba b l e C a
the THC content in the seized evidence; and thereafter Johnny Holmes, and assigned to the Trial a t a l/ re
enc e d / C r im in c le r k s a
the District Attorney’s Office may accept misdemeanor Bureau. From 1984 to 2016, he was actively b e r e fe r o m / Common t o p u t y d is t r ic t r
t c le r k .c be se n t Caus e d e g Ce e n t
marijuana possession charges, resulting in the issuance of engaged in private practice of law, as a criminal defense attorney. h c d is t r ic Q u e s t io ns can g @ P r o b a b le J o in t P r o c e s s in
h a s
.a s p x . lF il in the io n
a court summons or an arrest warrant for the suspect to He was elected and served as President of the Harris County E fi le F A Q s k a t C r im in a lo c ated at in t o . T h is s e c t
e h e lp d
e an Ja c bonds
appear in court. Criminal Lawyers Association (HCCLA) from 1988 to 1989 t h e e -f il . a t 7 00 N. S ,0 0 0 p r e -t r ia l
t c le r k .c o
m 22
and was later recognized by his peers in HCCLA with the h c d is t r ic d over 2019.
processe e ptember
The program’s previous exception of filing charges for “Attorney of the Year Award” in 2001 for “Dedication to the a n u a r y -S
Principles and Ideas of American Justice.” For more than fr o m J
misdemeanor possession of marijuana while in a drug- 30 years, he has been Board Certified in Criminal Law by
free zone will no longer apply. All misdemeanor offenders the Texas Board of Legal Specialization.
should be offered the option of MMDP.
34 35


Supervisor Criminal Probable Cause
DCO Criminal Customer Service DCO Data Control Lawanda Smith 832.927.6671
This section is located at 201 Currently, Criminal Data Control Criminal Support Manager
Caroline, 1st Floor. Even with Carnetta Washington 832.927.5941
is located at 5900 Canal Street
the implementation of E-Filing, in the Records Center with Supervisor Criminal
Customer Service
the customer service section plans to relocate to the Criminal Rena Coker 832.927.5901
still handles many criminal Justice Center.
Supervisor Criminal Post
background checks, and pro se Trial Leslie Charles
filings, including occupational 832.927.5942
licenses, nondisclosures, motions, Supervisor Criminal Collections
affidavits, subpoenas, paper Susana Campos 832.927.5921
certified copies, and assists with Manager Criminal Data Control
daily inquiries, including those Sylvia O’Campo 832.927.5771
with no criminal content.

DCO Criminal Collections Judith A. Snively

Criminal Collections is now Chief Deputy
located at 1201 Franklin, 1st of Courts
Floor. If a Defendant is requesting Office of
a payment plan for paying Harris County
court costs and fines, they can District Clerk
set up the payment plan with Updated Thumb Print Scanners judith.snively@
the Criminal Collections section The DCO has provided brand
as they are leaving court. new thumbprint scanners (832) 927-5777
to the Criminal District and
DCO Criminal Post Trial County Courts at Law after
Criminal Post Trial section is many years of frustrating
located at 1301 Franklin, 1st malfunctions with the old
Floor. This section deals with scanners, often resulting in
issues for criminal conviction pulling out the old ink pads.
relief such as writs of habeas The new ones are smaller
corpus and appeals. Many of and more precise.
the records needed to process
these requests are located at the So as you pass through the
Records Center at 5900 Canal Courts, please remember to
Street. Hopefully when the DCO smile at the deputy district
moves back into the Criminal clerks when you ask for
Justice Center, the records will their assistance. They have
be relocated as well. a lot of responsibilities
keeping up with all that
The Bond Forfeiture section is they do in the courtroom,
also located with Post Trial. If as well as staying current
a bond is forfeited, a warrant with new data processes.
is issued and a civil case is
created. The bond forfeiture The DCO is here to assist.
Criminal Courts Manager
can be recalled or deleted if Christine Baldwin 832.927.5971
the NISI has not been signed
Supervisor Criminal
and the Sheriff’s Office has not

acknowledged the warrant. Kathleen Tickle 832.927.5972 713-524-8471
Otherwise, the bond has to be Supervisor Criminal County

reinstated and the civil case Courts at Law TO PLACE AN AD, VISIT HCCLA.ORG/DEFENDER
Jessica Ordon 832.927.5974 Full Page Ad $500/Issue - $1800/YR 1/2 Page Ad $300/Issue - $1080/YR
dismissed. This section initiates
Supervisor Criminal Intake 1/4 Page Ad $175/Issue - $630/YR Business Card AD $99/Issue - $356/YR
the case and generates the NISI
Kathy Emerson 832.927.5871
and citation packet. D I S T R I B U T I O N 10 0 0 C O P I E S P E R I S S U E / 4 I S S U E S P E R Y E A R
2019 / VOLUME 3

PO Box 924523
Houston TX 77292-4523