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2020

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THE DEFENDER / 2020, VOLUME 1

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WHAT’S INSIDE 2019, VOLUME 3

STAY UP TO DATE WITH CLE


2020 HCCLA BANQUET 2
4 OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS

A WORD FROM
YOUR PRESIDENT
BY NEAL DAVIS 5 HCCLA NEWS ROUND UP
7 WELCOME NEW MEMBERS

7
7 REMEMBERING STEVEN "ROCKET" ROSEN
8 20TH ANNUAL DONALD DAVIS SEMINAR
10 ABOUT DONALD DAVIS
11 WHAT WE HAVE LEARNED
BY MARK BENNETT
2019 HCCLA
HOLIDAY PARTY PHOTOS
PHOTOS BY RUSSELL M. WEBB 12
FORENSIC TOXICOLOGY

17 A PRACTICAL GUIDE FOR REVIEWING


EVIDENCE IN DWI/DUI CASES
BY SOL BOBST

GIVE US TIME
& STOP PUNISHING OUR CLIENTS
BY ROBERT FICKMAN 19
HCCLA ETHICS

21 TIPS FOR AVOIDING RED FLAGS


POTENTIAL CLIENTS
BY MARK KELLY

HCCLA ETHICS
15 TIPS & RULES
FOR DEALING WITH CLIENTS
BY ROBERT FICKMAN
24
HCCLA ETHICS

25 CAUTION
DANGER AHEAD
BY ROBERT PELTON

A YEAR OF SERVICE TO
THE LEGAL COMMUNITY
HARRIS COUNTY DISTRICT CLERK
BY MARILYN BURGESS
28
4 C. ANTHONY FRILOUX
STUART KINARD
THE DEFENDER / 2020, VOLUME 1

GEORGE LUQUETTE
the defender MARVIN O. TEAGUE
PUBLISHER DICK DEGUERIN
HCCLA
W.B. HOUSE, JR.
EDITOR

past presidents
ROBERT PELTON
DAVID R. BIRES
WOODY DENSEN
ADS & DISTRIBUTION
ROBERT PELTON 1971-2018 WILL GRAY
CHRISTINA APPELT EDWARD A. MALLETT
DESIGN & LAYOUT CAROLYN GARCIA
BROCHURE BUILDERS
B
 RANDI DELOACH
JACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM CLYDE WILLIAMS
ROBERT PELTON
CANDELARIO ELIZONDO
ALLEN C. ISBELL
DAVID MITCHAM
JIM E. LAVINE
RICK BRASS
MARY E. CONN
2019-2020 KENT A. SCHAFFER

Hccla officers & board DAN COGDELL


JIM SKELTON
GEORGE J. PARNHAM
PRESIDENT BOARD OF DIRECTORS GARLAND D. MCINNIS
NEAL DAVIS CORDT AKERS ROBERT A. MOEN
MATT ALFORD LLOYD OLIVER
PRESIDENT ELECT JIMMY ARDOIN DANNY EASTERLING
MARK THIESSEN STACI BIGGAR WAYNE HILL
LORI BOTELLO RICHARD FRANKOFF
VICE-PRESIDENT CHRISTOPHER DOWNEY W. TROY MCKINNEY
JOE VINAS KATE FERRELL
CYNTHIA HENLEY
GEMAYEL HAYNES
STANLEY G. SCHNEIDER
SECRETARY NATHAN HENNIGAN
WENDELL A. ODOM, JR.
DAVID RYAN JORDAN LEWIS
ROBERT J. FICKMAN
W. TROY MCKINNEY
PATRICK F. MCCANN
TREASURER RAND MINTZER
JUSTIN C HARRIS TODD OVERSTREET MARK BENNETT
DAMON PARRISH II JOANNE MUSICK
PAST PRESIDENT JED SILVERMAN NICOLE DEBORDE
DOUG MURPHY J. JULIO VELA EARL D. MUSICK
SARAH V. WOOD CHRISTOPHER L. TRITICO
T.B. TODD DUPONT, II
CARMEN M. ROE
JOANNE MUSICK
TYLER FLOOD
TUCKER GRAVES
5

2020, VOLUME 1 / THE DEFENDER


a word from your president
Neal Davis
At one time or another, we represent Clients are scared and often naïve about the legal
difficult clients. Lawyers, if they can, system. Their life, liberty and reputation are on the
try to screen them out at the intake line. Some are severely depressed, even suicidal.
process. Have the clients had prior Try to put yourself in their shoes and give them
representation in the case? What are the benefit of the doubt. It may be helpful, if they
their issues with prior counsel? What are become overly burdensome, to explain to them that
their expectations? Are they the type that you were hired to handle legal work, and if they
need mental assistance you can refer them to a psychologist
appear to value and respect a lawyer? Do
or psychiatrist. This can be done in an empathetic and non-
they have such severe mental problems,
judgmental manner.
such as a borderline personality disorder,
that could create issues the lawyer would
rather avoid? Clients are often in trouble for a reason. Even if
Even with best efforts, with some they are not guilty of the charge, their lives are
regularity, the lawyer will be confronted often out of control (sometimes from being under
stress of the charge itself). What that means is:
with representing clients that, shall we
the lawyer must accept and internalize that some
say, are not as easy to represent as others.
clients are, when they are out of control, going to
These clients typically make up a small
lack boundaries, text at nights, call on weekends,
portion of a lawyer’s caseload but take make unreasonable demands, criticize without merit, and so on.
up a considerable part of the lawyer’s If a lawyer accepts this and knows this is going to happen, as it
time, energy, and resources that could does with every lawyer, then the lawyer will not be surprised,
otherwise be devoted to actually handling frustrated, or even angry. The lawyer will not take the client’s
the merits of the case. actions or words personally. It is about them, not the lawyer.
Particularly with out-of-control clients, it is imperative that the
It is hard enough fighting the government.
lawyer stay as calm, cool, and collected as possible and maintain
To fight the government but also be in a
control, and remind the clients of reasonable boundaries that are
battle with one’s own client makes it more
crucial to effective representation. This can be done civilly—
difficult to offer effective representation. reminding the client the lawyer is on their side, the lawyer is
There is a reason military leaders avoid doing the best they can, and the lawyer can most effectively
fighting two-front wars. With this in represent the client when able to focus on the merits of the
mind, lawyers who are struggling with case. We are professionals and while we may be frustrated at
challenging client situations should times with clients, it is important to act with dignity and respect
remember the following tips. towards them at all times.
6
THE DEFENDER / 2020, VOLUME 1

Be clear on a communications policy If it is not in writing, it did not happen.


up front, preferably in writing. Make With clients that are challenging
it clear the lawyer’s policy is for the or that a lawyer anticipates will be
client’s own good—so the lawyer can challenging, a lawyer should keep
focus on the case and the legal work. track of their time and what they have
Some things that might be included: done on the case. The lawyer should
the lawyer will not discuss trial be able to explain what they have done
strategy or the merits of the case via texting or email; if asked. Memorialize important developments in
there needs to be one point of contact that meets with memos or letters. When it comes time to settle or try
the lawyer (usually the defendant), so the lawyer is the case, write a letter, explain the evidence, what
not having to speak to multiple spouses, relatives or you’ve done, and the client’s options, and have them
friends covering the same ground; the case may take write down what they want to do.
several months or longer to resolve, and the lawyer
Suggest hiring another lawyer. On
often has little to no control over when they will
rare occasions, the client may be so
receive discovery; etc.
challenging that communication has
Consider whether clients should broken down, mistrust has poisoned
have the lawyer’s cell phone. Many the attorney-client relationship, and/
lawyers nowadays have a second or the lawyer is spending significantly
phone, with no texting capability, to more time on dealing with the client
take client calls. Others have a Voice than the merits of the case. The lawyer may well
Over Internet Protocol (VOIP) phone find it is appropriate to explain to the client should
provider that allows their office number to show consider hiring another lawyer. The lawyer should
when they call from their cell phone. Even for explain that the lawyer will cooperate with new
reasonable clients, the lawyer’s cell phone—instead counsel and provide a copy of the full file.
of the main office line—often becomes the default
Find support in colleagues. Every
method of contact for whatever matter arises no
lawyer has challenging clients. It is
matter how trivial.
important to talk to other lawyers
Do not take it personally if the client if for no other reason than to have a
CONTINUED : A WORD FROM YOUR PRESIDENT

hires, or consults with, another lawyer. sympathetic ear.


The reality is not every lawyer is ideal
for every client. Some clients, despite
the lawyer’s best efforts, just feel more Finally, ask yourself: Would I have chosen this
comfortable hiring someone else. profession if I knew before I became a criminal
Other clients will never be happy (see defense attorney that I would have to deal with
2 above). It happens to all of us. Consider this the difficult or unreasonable clients? The answer for
client’s loss, not the lawyer’s. almost all of us, as defenders of the Constitution, is
a resounding yes. It is important to remind ourselves
that we are the custodians and defenders of the Bill
of Rights. While we might find some clients difficult,
we owe it to the Sixth Amendment to represent them
as zealously as we can. After all, we take an oath to
defend clients as well as the Constitution.
new student members
APPLY ONLINE
HCCLA.ORG/MEMBERSHIP
7

2020, VOLUME 1 / THE DEFENDER


8
THE DEFENDER / 2020, VOLUME 1

HCCLA held the seminar on Friday, December 6, 2019 at the


First Court of Appeals. This seminar is about lawyers taking
care of lawyers and dealing with the stress of the practice. It is
held each year before the holidays, when stress levels reach their
peak. We welcome anyone with a bar card to attend - criminal
defense lawyers, prosecutors, judges, family, immigration,
personal injury, civil law, or transactional lawyers. Practicing
law is a tough business. Lawyers are dying too young, suffering
strokes and other catastrophic illnesses, and succumbing to
mental illness and addiction.

It is important that lawyers share their experiences with each


other, and to hear from those who have lived it. The following
speakers shared their techniques for self-care and dealing
with trauma, addictions, and mental illness – Judge Angela
Rodriguez (Harris County Justice of the Peace, Precinct 6),
Hon. Marc Carter (Former Judge, 228th District Court), and
HCCLA member Natalie Schultz.

Chris Ritter of TLAP (Texas Lawyers Assistance Program) talked


about the 100% confidential programs the State Bar offer
lawyers struggling with addiction and mental health issues,
and how you can qualify for a stipend to sustain you while you go
to treatment.
9

2020, VOLUME 1 / THE DEFENDER


Damon Parrish reviewed the ways in which Hurricane Harvey
has changed your practice, and the latest plans for recovery.
Pat McCann taught how to disaster proof your law practice; while
David Ryan urged lawyers to start setting aside money for retirement,
disasters, or a future rainy day.

This CLE is funded in part by a grant from the appellate courts,


administered by the Criminal Defense Lawyers Project (CDLP),
a project of the Texas Criminal Defense Lawyers Association
(TCDLA). This year, the court grants have mandated more
self-care CLEs. The Donald Davis seminar continues to grow each year,
with more than 140 attending. Special thanks to all the speakers, to
David Ryan for serving as Course Director, and to Melissa Schank and
Christina Appelt for all the behind the scenes work it takes to put on
a successful event.

DAMON PARRISH II DISCUSSES


PLANS FOR RECOVERY SINCE
HURRICANE HARVEY

HON. MARC CARTER


DISCUSSING TRAUMA AND
OFFERING SELF-CARE ADVICE PATRICK MCCANN GIVES ADVICE ON
TO LAWYERS HOW TO DISASTER-PROOF A LAW PRACTICE

P H O T O S B Y D AV I D R YA N
10
THE DEFENDER / 2020, VOLUME 1

About
DONALD DAVIS
Donald Ray Davis graduated from Grambling High School in
Louisiana. He received his Bachelor of Arts from the University
of Kansas in 1977 and his Juris Doctorate from the University
of Ohio College of Law in 1980.

Donald joined the Harris County District Attorney's Office


where he remained until 1985. He became the Chief Prosecutor
in the 178th District Court. He then joined Connie B. Williams
and Richard W Wilkinson, Jr. in private practice where he
excelled in criminal defense work. Attorneys Lott J. Brooks Ill
and Diana Olvera later joined him in practice.

He carried a heavy caseload including at least 30 capital murder


cases where he secured life sentences for 11 defendants. In 1994,
Donald was rated one of the Top 12 Criminal Defense Lawyers
in Houston, Texas. In the 20 years that Donald practiced
law, he built many firm and lasting relationships among
his peers. His trial skills and quiet and courteous competency
was unrivaled at the criminal courthouse. Eventually the
life he spent defending the accused had taken its toll.
In 2000, overwhelmed by back to back murder trials,
Donald took his own life.

This seminar is aptly named for Donald Davis in the hopes of


reaching out to lawyers who give their all to their clients while
CONNIE B. WILLIAMS,
experiencing difficulties balancing their own lives with the DONALD DAVIS' FRIEND AND
practice of law, and/or who may be struggling with personal FORMER LAW PARTNER,
issues such as depression, addictions, or health problems. OPENING THE SEMINAR
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2020, VOLUME 1 / THE DEFENDER


WHAT WE HAVE
learned By Mark Bennett
We never know everything that lies behind a man's decision to end
his own life. In the case of Donald Davis, I think that it's natural for
us, in our adversarial relationship with the judiciary, to blame them.
I'm good with that. They worked him like a rented mule, and maybe
if they had given him a chance to come up for air between trials, he
would still be with us today.
The defense of people charged with crimes can be isolating and NATALIE SCHULTZ
brutalizing. We are charged with protecting society's most hated
from the consequences, usually, of their own mistakes. Whether we
care about our clients or not (and I think most of us usually do), we
take it personally when we are not able to help them as much as we
feel we should be able.
At the same time, most of us are sole practitioners, physically isolated
from our brothers and sisters fighting the same fight. Nobody but
us cares about us, but we don't always heed the flight attendants'
admonition to put our own oxygen masks on first. Our health suffers—
we suffer from depression, from alcoholism, from sedentary lifestyles,
from poor diets and from divorce.
But if we don't take care of ourselves, we can't take care of the
people whom we are charged with defending. It is with that in mind HON. ANGELA RODRIGUEZ,
HARRIS COUNTY JUSTICE OF THE PEACE
that HCCLA put on the first "dealing with the practice" seminar.
We named it in honor of Donald Davis, so that his life would not go
unremembered and his death would not be in vain.
The seminar is about helping yourself and your fellow criminal
defense lawyers so that we can all be better lawyers and have
better lives.
12

2019 Holiday Party


THE DEFENDER / 2020, VOLUME 1

The defense bar celebrated the end of the year with holiday cheer!
It was a festive night of dinner, dancing, games and axe-throwing,
with delicious catering by Chatter’s Café. Judges, prosecutors and
court staff came out to party as well. Special thanks to Mark Thiessen,
Justin Harris and Christina Appelt for organizing the party.
Thanks also to Russell Webb for taking photos and Shannon Foster
for helping at the door. Everyone had a jolly good time!
2020, VOLUME 1 / THE DEFENDER
13
14
THE DEFENDER / 2020, VOLUME 1 CONTINUED : HCCLA HOLIDAY PARTY
15
Speciathanks
l tooursponsors!

2020, VOLUME 1 / THE DEFENDER


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16
THE DEFENDER / 2020, VOLUME 1

Starting with virtually no resources and


no support, this scrappy little group of
volunteers and underpaid defenders
have changed ‘the capital of capital
punishment’ in ways no one believed
possible. I encourage you to support
the lifesaving work of GRACE. Their
compassion and energy will multiply the
a charity for the defense of the indigent impact of your gift many times over.
N E V E R A N OT H E R S L E E P I N G L AW Y E R SISTER HELEN PREJEAN,
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2020, VOLUME 1 / THE DEFENDER


A Practical uG ide for Reviewing
ivE dence in DWD/I IU cases
By Sol Bobst, MBA PhD DABT, President, ToxSci Advisors LLC
When evaluating drug testing evidence in any case, Samples are often in storage for weeks, or months, before
there are two important questions for the Judge and they are tested. Proper chain of custody documents
Jury to address. The first question is “Was the drug test support that a sample has been properly handled
done correctly? Or is it valid?” The Second Question is and managed during the time it was used. Any gap
“Is the drug test relevant?” In the State of Texas, DUID in documentation creates a foundational question of
laws require that a per se opinion of intoxication must be whether the evidence is valid, beyond a reasonable doubt.
supported by a scientific opinion. There should be clear documentation that connects the
laboratories report from the technician that ran the initial
It is important to understand that not all laboratories across test to the supervisor or lab director that signs off on the
the state have the same procedures or qualified staff. Many final report or decision. In labs handling large volumes,
laboratories have technicians that are trained in chemistry these are often different people.
but may not have any knowledge of pharmacology or
toxicology. Thus, just because the state has evidence of
a “positive” test does not necessarily mean that there is
Focus on Marijuana and THC Evidence
proof that someone was intoxicated. Checklist for a Case Involving THC
It is thus important to request a detailed With several counties and the State of Texas decriminalizing
small amounts of Marijuana, the prevalence of THC use
list of documents from the laboratory in cannabis or electronic vaporizing devices continues to
in the Discovery Request, which should grow. Marijuana intoxication is challenging to set policy
contain the following: for a specific level of intoxication for several reasons.
One reason is that we have natural cannabidiol signaling
-  chain of Custody Documentation in our bodies, with cannabidiol receptors, that are linked
-  Any Video of the Arrest or Biological to the muscular, skeletal, and nervous systems. This is one
Sample Draw or Collection of the reasons why CBD products are popular, as people
use them for relief of chronic ailments. Another reason
-  All Data Printouts from the Laboratory Test is that the body can adjust to responses from THC use.
-  All Standard Operating Procedures Thus, an occasional user of THC may respond differently
to THC than a habitual user. Several states have attempted
-  All Calibration Records to create levels of intoxication for THC, ranging from
1 ng, 2 ng, or 5 ng. Texas currently has no specific number.
Chain of Custody is the most common area that I have Generally, intoxication could be expected if someone used
found gaps as an expert reviewing cases for the past 15 within a few hours and was at fault operating a vehicle,
years. Often, there is poor documentation from the officer or yet even this is yet to be definitively supported by science.
health care professional who draws and collects a sample,
to the transportation of that sample to the laboratory.
18
THE DEFENDER / 2020, VOLUME 1

If you have a case involving THC evidence, please make use of the checklist below.
Organizing this evidence will assist you in evaluating the strengths and weaknesses of the case being made by the State.

THC (Any Drug) Investigation Checklist for DWI/DUI


G EO G RA P H I CS
LOCATION OF ACCIDENT

LOCAL STATUTES

T EST I N FO R M AT I O N
TIME OF ACCIDENT

TIME OF TEST

CHAIN OF CUSTODY

MEDIUM TESTED
BLOOD URINE SALIVA/ORAL FLUID HAIR FIELD SOBRIETY

TEST RESULT
POSITIVE NEGATIVE THC (ACTIVE) CARBOXY-THC (THC-COOH)

LIMIT OF DETECTION LIMIT OF QUANTITATION

A D M I T T E D U S E , I F P R OV I D E D
INHALATION / SMOKED
PIPE WATER PIPE / BONG JOINT/BLUNT VAPE

APPROXIMATE AMOUNT IN GRAMS


% THC IF COMMERCIAL PRODUCT / KNOWN
CONTINUED : FORENSIC TOXICOLOGY

EDIBLE
BRAND DESCRIPTION INCLUDING THC CONCENTRATION, TOTAL WEIGHT

TIME OF USE HOURS OR TIME BEFORE INCIDENT

PATTERNS OF USE (DAILY, MONTHLY)

Sol Bobst is the President and Principal Advisors of ToxSci Advisors LLC located in Houston, Texas. He received his
PhD in Toxicology from the University of Texas Health Science Center-MD Anderson Cancer Center in Houston,
Texas. He is also a Diplomate of the American Board of Toxicology. Dr. Bobst has over 16 years of experience
as an expert in Forensic Toxicology. He is also an Adjunct Assistant Professor in Pharmacology & Toxicology at
Wright State University in Dayton, Ohio, and the Department of Pharmacology & Toxicology at the University
of Texas Medical Branch in Galveston, Texas. He can be contacted at sol@toxsciadvisors.com or at his office at
832-581-2686 / Cell 281-686-6363.
19

2020, VOLUME 1 / THE DEFENDER


GIVE

&
US
TIME
S TO P
PUNISHING
OUR CLIENTS
BY R O B E RT F I C K M A N
20
THE DEFENDER / 2020, VOLUME 1

I have a complaint about the continued antiquated an adequate amount of time to provide effective
practice of requiring defendants on bond to appear assistance of counsel, particularly on felonies?
in court every 30 days. To their credit, some of our It takes time to get discovery. We can wait up to 6
county court judges have discarded this practice. months just to get body cam video.
They are giving longer resets and waiving the
required frequent appearance of the presumptively
All these frequent settings do is make defendants
innocent accused.
miss work and waste the time of court staff,
prosecutors and defense lawyers. The courts need
Yet many of our esteemed District Courts have not make the accused come to court every 30 days
instituted no such reform. They continue to reset to keep track of the accused. Compliance with
cases 30 days and require the accused on bond and bond conditions is a matter that can be monitored
counsel to appear at every setting. Why? by bondsmen and pretrial services.

At most of these pointless settings, nothing productive Why do courts require clients on bond to appear in
occurs. Our collective primary goal at most of these court every 30 days?
settings is to reset the case to obtain a realistic
amount of time to provide effective assistance of
What is the unspoken reason?
counsel. Why do we have to explain to a coordinator
or judge that 30, 60, 90, or 120 days is often not

JUSTICE
TA K E S T I M E.
GIVE US THE TIME
TO D O J U S T I C E.
G I V E U S T I M E TO P R O V I D E
E F F E C T I V E A S S I S TA N C E
O F CO U N S E L A N D
CONTINUED : GIVE US TIME

S TO P D O L I N G O U T
T H AT T I M E I N
30- DAY I N C R E M E N T S.
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2020, VOLUME 1 / THE DEFENDER


Quite obviously, it is to wear down the accused
who cannot continually take off time from work.
Isn’t it just another way to coerce pleas and make
the accused wave a white flag? Hasn’t Harris
County learned its lesson by its recent trip to
Federal Court— that coercing pleas by any means
is wrong?

All district courts should give counsel at least 60 to


90-day resets and waive the accused’s appearance Robert Fickman has practiced criminal defense in State and
on all se ttings where nothing is at issue. Federal Court for 36 years. He is AV-rated by Martindale-
Hubbell, a Past President of HCCLA, past Board Member
of TCDLA, and a longtime vocal critic of the criminal
Justice takes time.
justice system. He received the HCCLA President's Award
in 2018; and HCCLA Torch of Liberty Award in 2019 for
Give us the time to do justice. Give us time to his many years fighting to eliminate Harris County's "Plea
provide effective assistance of counsel and stop Mill" and systematic denial of PR Bonds.
doling out that time in 30-day increments.
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THE DEFENDER / 2020, VOLUME 1
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2020, VOLUME 1 / THE DEFENDER


After 35 years of Some of these people qualify for a court-
practicing criminal law, appointed lawyer, but they want a “free
I have learned that it is world” lawyer. Many times, it is best to
best not to represent every advise them that there are many good
potential client who comes lawyers who take appointments, and that
along. The following are a few they should apply for a court-appointed
red flags that indicate it might lawyer. They can always hire another
be better to consider declining lawyer later, if necessary.
a new case from a potential
client. I know these things but still get Potential clients who tell you this
caught ignoring the warning signs and is an “easy” case and it should go
taking cases that I later regret: away quickly. It never does. These
people will not want to pay you
Walk-ins. Potential clients who show up at my because they don’t believe it should
office without an appointment are likely to be be this difficult. They do not understand the
difficult clients in the long run. The worst are complexities of their case, nor the criminal justice
the ones waiting at the door first thing in the system itself.
morning—sometimes in a highly emotional state
of mind. These clients have no boundaries. They Weekend or after-hours appointments. Potential
do not respect the lawyer’s time. They will take clients who demand appointments outside
up way too much of your time. They will make of regular business hours are more likely to
unreasonable demands, call at all hours, need no-show and waste your time.
to be told the same things over and over,
and may require a lot of extra hand holding. Mark J. Kelly has 35 years of experience
handling criminal cases in State and
Federal Courts. A graduate of Texas
Clients who want a payment plan A&M University (BBA) and University
but show up unprepared or of Houston (JD), Mr. Kelly is Board
unable to pay anything. Certified in Criminal Law by the Texas
If I had all the money Board of Legal Specialization. He
people agreed to pay has extensive training and experience
related to DWI litigation. The American
me and never did, I Chemical Society-Chemistry and Law
would be rich. Section (ACS-CHAL) has recognized him as
an ACS-CHAL Lawyer Scientist for his efforts to understand the
science and technology behind testing blood for alcohol and drugs.
He is a member of the National College for DUI Defense and local and
state criminal defense associations. Mr. Kelly is a former Assistant
District Attorney for Galveston County, Texas. He has been in private
practice since 1993.
24
THE DEFENDER / 2020, VOLUME 1
25

2020, VOLUME 1 / THE DEFENDER


DANGER
AHEAD
I can still hear my Mother telling my brother and me to “BE CAREFUL” The TCDLA and HCCLA Ethics Hotlines
every time we left our house. As lawyers, and in daily life, those words are meant to keep lawyers out of hot
are very important. water. Ethical issues are best presented
directly to the ethics hotline. Here are
Unfortunately, clients are not always careful. Terry Gaiser and I had a some examples of calls we received on
recent case where we told our client to “be careful” (be quiet). Client TCDLA’s Ethics Hotline:
was in the hallway cursing the officers who arrested him and the Judge
and prosecutor. He thought only his family and our witnesses could QUESTION 
hear him. Later in the court room, the State called a police officer in I have recently had requests from federal
civilian clothes. He had been in the hallway. There is no doubt after clients for the discovery from their file.
the officer relayed what he heard that several years were added to I know that certain documents such
our client’s sentence. It is never wise to talk about cases in courthouse as offense reports cannot be given to
elevators or hallways. clients, but I don't know which, if any,
documents can be given to clients and
Lawyers are not always careful either, both prosecutors and the law governing the dissemination of
defense lawyers alike. Morrison v. State1 is a good example of that. federal discovery.
The full case is worth reading, but here is the opinion:
ANSWER by Michael Mowla
We are talking only about
 Because billing records exist to secure an indigent defendant’s discovery that was received
right to the appointment of counsel, the prosecutor’s “affirmative from the government under
obligation” requires a prosecuting attorney to refrain from Fed. Rule Crim. Proc. 16.
reviewing indigent defense billing records during the case against
First, see if the government will
the defendant, regardless of how the prosecutor may acquire that agree to releasing all or part
information and regardless of whether any privilege attendant to of the discovery to the client.
those records was waived by public disclosure;  a defense attorney Some AUSAs don't care about
parts or all of the discovery.
who (a) creates detailed billing records disclosing confidential client
Get that agreement in writing
communications and attorney work product, (b) fails to protect (email is fine).
strategic defense information from public disclosure during the
Second, if you cannot obtain an
payment process, or (c) fails to take remedial actions after learning
agreement for any part of the
that the prosecuting attorney has reviewed his billing records Rule 16 discovery, ask the court
provides ineffective assistance of counsel; and  because the State for permission and get a court
violated the first principle, and because defense counsel violated the order. Once a court orders that
you cannot turn over certain
second principle, the defendant’s Sixth Amendment right to counsel
documents to the client, you will
and her Sixth Amendment right to be free from State intrusion into be protected from a grievance.2
the attorney-client relationship were violated, and the defendant is
entitled to a new trial.
26
THE DEFENDER / 2020, VOLUME 1

A r t i c l e My now-ex client sent me a letter a


39.14, C.C.P. few weeks back demanding his file and
is the only everything in it, to include multiple discovery
limitation on what discs, many pages of police reports, witness
you can send a client statements and multiple documents containing
who has asked for "all" his file created while you confidential information. The client saw all this on
represented client in a criminal case. At your expense, multiple occasions while his cases were pending. I
your former client is entitled to promptly receive from consulted with another defense attorney about the
you all contents of his paper and digital file(s) in your issue and followed his advice: I did not reply.
office, except the e-discovery you received from the
state's DA. If you obtain a court order from the same The ex-client has filed a "Motion to Compel Attorney
court having jurisdiction over your client's indictment, to Produce Client's File" with the District Court
that court's express order can permit your making that convicted him. Never mind a possible lack of
judicially compliant additional disclosures to your jurisdiction, and never mind that the judge in that
client, you can send the State's e-discovery you got court probably doesn't give a whit about the motion,
under Article 39.14., C.C.P. but what, exactly, legally and ethically, can I send to
the ex-client? What, legally and ethically, if anything,
am I required to send him? Am I obligated to pay for
BEWARE: Ignore the client's copies of whatever I can legally/ethically send him?

file request at your own I am concerned about violating rules about not
releasing confidential information, to include phone
peril. You will lose at the numbers, addresses, and other sources of contact
information about witnesses. On the other hand, I
grievance committee! don't want to get hammered by the Bar. I am in a bit of
a Catch-22 situation here, damned if I do and damned
if I don't.
QUESTION 
I had a client I represented on a world of felony drug ANSWER by Joseph Connors
cases in two different counties last year. The client is
CONTINUED : CAUTION

It appears that attorney collected various items of


drug-enhanced crazy (meaning the client was crazy to evidence to use as substantive or impeachment
begin with), but is not quite incompetent. I managed evidence while representing client. Now that client's
to get good outcomes for him (he was facing decades case is over, does attorney have to return same to
in prison, but received multiple concurrent 7-year client or to the person from each item was separately
sentences, if memory serves). While his cases were obtained by defense counsel or his/her investigator?
pending, he visited me in my office and went over
discovery on some of the cases—this was before
his bond was yanked for failing drug tests while on
'pretrial probation'—and I went over the remainder of
his discovery with him during multiple visits to the jail.
27

2020, VOLUME 1 / THE DEFENDER


 Keep everything and face and lose on some issue Robert Pelton is a criminal defense lawyer
at attorney's own grievance hearing. with offices in Houston and Abilene,
Texas. Mr. Pelton and Allen Isbell created
 Return each item to the person from whom same Docket Call, later named The Defender.
was initially obtained on theory it was loaned to Mt. Pelton is a Past President of HCCLA,
counsel and was never "owned" by client. Founder and Chairman of HCCLA and
TCDLA Ethics Committees, a recipient of

Give all to client and hope client does not misuse the Jim Bowmer Award for Professionalism from the Texas
such potential evidence by threats, murder, etc. Bar College and HCCLA Richard "Racehorse" Haynes
Lifetime Achievement Award (2015). He has also received
President's Awards from TCDLA (2011-2019). Mr. Pelton

Attorney can study additional options and
was the personal lawyer for Marvin Zindler for 31 years.
figure out the ethical and moral answers to this
He received a United States Congress Proclamation from
serious dilemma.3
Congressman Ted Poe for Zeal and Tenacious Defense of his
clients in 2015.
Bottom line, heed your mother’s advice:
BE CAREFUL.
Special thanks to Michael Mowla, Joseph Connors II
and Sharon Bass for contributing to this article.

1 Morrison v. State, No. 06-17-00159-CR, 2019


Tex. App. LEXIS 2343 (Tex.App.—Texarkana March
27, 2019) (designated for publication) [State may
not review indigent defendant’s attorney’s billing
records submitted prior to trial as required by
Art. 26.05]

2 Michael Mowla’s Motion and Order can be


found in TCDLA’s Voice For The Defense Online
http://voiceforthedefenseonline.com/newsletters/
s p e c i a l / 9 8 7 - Tr e v i n o - M o r a l e s - M o t i o n - f o r-
Clarification-re-ECF-467.pdf

3 Joseph Connors’ detailed answer can be


found in TCDLA’s Voice For The Defense Online
http://voiceforthedefenseonline.com/newsletters/
special/990-Order-Deny-Grant-987-2016-02-16.pdf
28
THE DEFENDER / 2020, VOLUME 1

A YEAR OF
SERVICE TO THE
LEGAL COMMUNITY:
REFORMS TO MAKE THE
DCO MORE EFFICIENT,
MODERN & TRANSPARENT
BY MARILYN BURGESS, HARRIS
COUNTY DISTRICT CLERK

Ma ri ly n Bu rg es
s
sw or n in as Ha is
rr is
Co un ty Di st ri
ct Cl er k
on Ja nu ar y 1,
20 19 .
29

2020, VOLUME 1 / THE DEFENDER


Harris County voters elected me
to make the Harris County District
Clerk’s Office (DCO) more efficient,
modern, and transparent. Therefore,
I am committed to responding
to the needs and suggestions of
our customers – lawyers, judges, and
the public.

I believe the county’s legal community


needs a DCO that is agile and
innovative, and I have been instilling
those two principles in my employees
since I took office in January 2019.

We are implementing multiple


changes and initiatives to foster
the working relationship with the
legal community in Harris County. unty
Harris Co erk
Cl
Many of these changes have to do with Distric t rks
urgess wo d
Maril y n B
the DCO website (hcdistrictclerk. fice loca
te
com). I am coordinating a at her of l Courthouse,
vi
in the Ci n.
comprehensive project to redesign t o wn Housto
in down
our website to make it more
user-friendly and also mobile friendly,
but the website already offers a variety
of services that I deem very useful.
For example, criminal lawyers can
access an online attorney kiosk with from e-filing statistics to policy There is also important information
all the data they need at their fingertips, changes and technology updates. on the operations at the Criminal
such as criminal settings displayed Justice Center. Criminal Collections
in chronological order. The kiosk The DCO improved data security in is now located on the first floor,
will also allow attorneys to generate 2019 as well, successfully designing and the plan is to move it into a
documents electronically and and implementing a verification newly renovated, larger space
enable defendants to sign them system for all attorneys using our in 2020. The Harris County
remotely, eliminating the need for website. This prevents private Engineering Department projects
them to appear in person for every individuals from fraudulently that sometime in the first half of
court hearing. viewing and filing documents with a 2021 the CJC´s third floor will again
publicly available bar number. Each be home to Criminal Customer
With the new mindset to be attorney using the DCO website has Service, Criminal Post Trial and
technology-driven, attorneys and been authenticated through their Criminal Data Control. It will also
paralegals can access the District email address on file with the State feature a designated “Attorney Work
Attorney’s portal through our website Bar of Texas. Space” that will have kiosks and
to view filings and discovery in their space to work between hearings.
cases. Additionally, we have also We have also worked diligently I encourage you to give me input on
created a section of the website called to bring down the e-File rejection this special area.
“Attorney Communications,” which rate. I am pleased to report the 2019
provides the latest DCO news that rejection rate was under 5% for We are also making an effort to gain
legal professionals need to know, criminal cases. more feedback in 2020 by continuing
30
THE DEFENDER / 2020, VOLUME 1

to host focus group sessions for the public,


judges, attorneys, and paralegals.

At the DCO, we see increasing jury participation


and more diverse juries as crucial to improving
the criminal justice system in Harris County.
With that in mind, I am leading the creation of
our e-Juror program. It will be rolled out in three
phases, the first of which will allow potential
jurors to fill out the summons questionnaire
online. The e-Juror program will require the
support of the Jury Committee which, as you
know, reports to the Harris County Board of
District Judges on matters concerning the
summoning, selection and control of juries. I Ha rr is Co un ty Di st
am hopeful the criminal attorneys’ community Cl er k Ma ri ly n Bu rg
ri ct
es s
will support this initiative, which is my flagship du ri ng a me et in g wi
th
project for 2020. Fr an ci sc o He re di a,
Cl os ed Re co rd s Te am
Le ad at
th e Di st ri ct Cl er k’
I sincerely hope the changes we are implementing s Of fi ce .
will be helpful for Harris County’s legal
community and strongly encourage all of you to
reach out and let me know how the DCO can
better serve you.

Marilyn Burgess is the Harris


County District Clerk.
With over 30 years as a
Certified Public Accountant
(CPA), she is a seasoned
businesswoman with
real world administrative
experience. While this is her first
elected position, she is not new to
leadership, having served as both the President of the
North Houston-Greenspoint Chamber of Commerce
and the Executive Director of the Texas Parent Teachers
Association (PTA). In her time at the Texas PTA, she
CONTINUED : A YEAR OF SERVICE

championed causes that bettered the lives of teachers,


working and middle-class families, single mothers, and
children. As District Clerk, she is working hard to make
the DCO more efficient and technology-driven. Ms.
Burgess oversees a budget of $36 million and a staff of
over 500 professionals. She is bringing an innovative and
pragmatic leadership style to the DCO. Ha rr is Co un ty Di st
ri ct
Cl er k Ma ri ly n Bu rg
es s
du ri ng a me et in g wi
th
Am an Ah lu wa li a,
Ju ry Ma na ge r at th
e
Di st ri ct Cl er k’ s Of
fi ce .
31

2020, VOLUME 1 / THE DEFENDER


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f o r n ews & upda tes

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