15th Annual Jolly Roger

Criminal Defense Lawyers Project

15th Annual Jolly Roger

Table of Contents

speakers topic

Lisa Greenberg Winning Jury Selection

Anne Burnham Pretrial Practice

Andrew J. Decker Technology in the Courtroom

Paul Tu Client Relationships and Communications

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

15TH ANNUAL JOLLY ROGER HAL JACKSON MEMORIAL CRIMINAL LAW SEMINAR JOURNEY TO JUSTICE

SEMINAR INFORMATION

Date December 9, 2022

Location Springhill Suites Denton 1434 Centre Place Drive Denton, TX 76205

Course Director Hayley Brown, Jeep Darnell, & Patty Tress

Total CLE Hours 6.0 Ethics: 1.0

Friday, December 9, 2022 Daily CLE Hours: 6.0 Ethics: 1.0

Time CLE Topic Speaker

7:30 am Registration and Continental Breakfast

8:15 am Opening Remarks Haley Brown & Patty Tress

8:30 am 1.0 Call to Action | Open and Closing Arguments

Jessica Canter

9:30 am .75 Seeking the Truth | Voir Dire Lisa Greenberg

10:15 am Break

10:30 am .75 Preparing for the Journey | Pre-Trial Investigations Anne Burnham

11:15 am Lunch Line

11:30 am 1.0 Lunch Presentation: Staying Mentally Strong for the Journey | Mental Health Tifanee Baker

12:30 pm Break

12:45 pm .75 Using the Right Tools for the Journey | Technology in the Courtroom Andrew Decker

1:30 pm .75 Brothers and Sisters in the Walk | Experts & Witnesses Shawn Sareen

2:15 pm 1.0 Remembering Why We are on the Journey | Client Relationships & Communications Paul Tu Ethics

3:15 pm Adjourn

Criminal Defense Lawyers Project

15th Annual Jolly Roger

December 09, 2022 Springhill Suites Denton Denton, TX

Topic: Winning Jury Selection

Speaker: Lisa GreenBerg

Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 361.446.2476 phone 361.288.3476 fax lisagreenberglaw@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Winning Jury Selection

Lisa Greenberg Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 lisagreenberglaw@gmail.com

Introduction:

“Never forget, almost every case has been won or lost when the jury is sworn.” Clarence Darrow. (Hey, no pressure.)

Voir Dire may be my favorite part of the trial, competing with closing argument. This is where I first get to meet the jurors and see who they are, what they think of issues I am concerned with, how they really feel about the system, etc. I get to speak to them directly. This is where we form a bond. If done correctly, we make promises to each other. It’s where I first tell my client’s story and show them my fears, who my client is, and ask them to help me believe in the justice system again.

I always began reading my discovery with voir dire in mind. I start jotting down a fear list as I am reading with things about the case that worry me. I even do this sometimes when I meet my client, is there something about them, the way they look, the way they speak that concerns me will be judged harshly? Their lifestyle? Voir Dire is the time when I get to talk about it and meet it head on.

Goals of Voir Dire:

1. Get rid of bad jurors.

2. Being human, allowing jurors to be human and honest. Establishing Trust.

3. Addressing your fears about the case

4. Making jurors see the person you represent, not the “Defendant”

5. Neutralizing the judge and fear of the judge, fear of others (other jurors, police, authority etc.)

6. Making them hear my theory and listen for it during trial (educate)

7. 3 E’s – Hirschhorn – 1) elicit information; 2) establish rapport; and 3) educate by having the jurors teach each other

A. What is Voir Dire?

1. Standard prosecutor answer: Voir dire is where we talk to jurors about the case, listening for anyone who cannot be fair and impartial, who cannot follow the law or is disqualified for other reasons. Most State’s voir dire is capsule voir dire. I could probably recite it in my sleep. It rarely hits the issues of the case and standardly has: - beyond a reasonable doubt is not beyond ALL doubt -one witness rule

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2. Our Voir Dire: HAS to be better than the State’s. We get to watch them and go last. You get to see juror’s reactions to certain questions and the prosecutor in general. We have to be better at connecting with these jurors and telling them the truth. Theory: Jurors look for someone to follow in the court room. Looking for a good guy (hero) and a bad guy (villain) here is your chance to be the hero. You will be the person who will tell them the truth, good, bad and ugly. You get permission to ask the tough questions to get at the truth.

B. How do we do it?

1. Humanize:

Have jurors look directly at your client, even if they don’t want to. They need to see it is a human being they will be determining the fate of. Have your client stand up and tell the jury why you will not call him the “Defendant”. I often ask them why we use labels like that? I tell them his/her name and that he is a father, son, brother, etc. Usually someone will respond it is easier to dehumanize someone with no name, identity. I then ask the jurors to talk about how they would feel having everyone stare at them, judge them from the moment they walk in. Look at their every move. Did they make the wrong facial expression, etc. This helps to neutralize anything that they were already judging by discussing it.

2. Get them to talk:

Not everyone is comfortable talking in a crowd of strangers. Especially about deep held views, prejudices and biases. No matter what the State said I promise you they did not make most jurors feel comfortable admitting they would believe an officer over anyone else or that they think your client is guilty of something to be sitting there. How do we get them to admit such things on the record to get rid of the jurors who need to be struck for cause?

By being vulnerable and honest ourselves. Admit your faults, your judgments. Typically a lawyer will say they “got their car broken into so may feel harsher about burglary of vehicle cases” Etc and may not be the right juror. Is it enough?

Make the venire understand the importance of them telling the truth. Make them feel comfortable if they want to approach you individually after voir dire, have them raise their hand to discuss later. It is better to know who has concerns then ignore it. Have them put themselves or their loved ones into your clients shoes to dig deep and let you know things they may be scared to tell you in front of others, the State, the Judge etc.

a. What does Biased and Prejudiced mean? Art 35.16, you are now getting the challenges for cause.

b. Common Challenges for Cause:

1.Police officer credibility

2. Child witness credibility

3. Defendant’s failure to testify

4. Type of Case

5. Ability to Consider Full Range of Punishment

c. Locking in Challenges for Cause: Many times a judge or prosecutor will try to rehabilitate a bad juror who clearly is against your theme, client or the wrong person for your case. Try to lock them in. Here are some questions that may help: “I can see you feel strongly about this?”; “You have had these beliefs for a long time, not just today”; “your feelings about this will factor into your decision in this case”; “there is nothing the judge or prosecutor can say about this that will make you change your mind?”

3. Fear List- address the worst parts of your case head on:

I write a list of the worst facts of my case. I bring them out directly in voir dire. This helps neutralize the State’s “gotcha” factor and lets me hear how the jury will react to it. Is it the way your client looks? Behaved? Some weird facts in the case? Let’s get them directly out so we do not surprise jurors and hear how they honestly feel about those facts. Some people may not be able to see past them (you get rid of them) and some people may be more accepting. It also

makes them ready to hear those facts instead of being surprised. This also helps you to build trust with the jurors by telling them the truth.

C. Educate

One of the jobs in our voir dire is to try and open jurors’ minds to different possibilities and have them listen for it. Just because someone is accused doesn’t mean they are guilty. We ask questions like “how do you prove that you didn’t do something”? I always ask them about who believes when something isn’t right we should say something? In criminal law, where do we do that?

1. Other things to educate jurors on:

a. Hold the State to their burden of proof.

b. Make the jurors get rid of preconceived notions such as “he’s sitting there, he must have done something wrong”; or why wouldn’t he testify if he’s done nothing wrong? How do we do that?

c. Your overview of the case: You are absolutely entitled to give an overview of the case. In Powers v. Ohio, 499 U.S. 400, 114 L. Ed.2d 660, 111 S. Ct. 1364 (1991), the Supreme Court held “the voir dire phase of the trial is the juror’s first introduction to the substantive factual and legal issues in a case.” Id. I strongly believe every time you speak you should be telling your client’s story.

D. Learn, Don’t Always Teach:

Lawyers have trouble knowing how to shut up and listen. I have the same trouble. But here is the part of the trial process where you get to listen. Sometimes jurors say interesting things you can use again in your case. And sometimes, more often, they something that gets other potential jurors to respond. This is a great opportunity for you to listen and loop their responses to get more information out of the venire about how they really feel.

1. Don’t be judgmental of responses: We are building a relationship of trust. If the jurors perceive their feelings are wrong, they will stop answering you honestly.

2. Let the prosecutor say things like “Are you telling me you cannot follow the law?” etc. We are not the judgmental ones. We want them to open up to us about how they really feel.

3. Educating the panel is a critical aspect of an effective voir dire and should be done by other members of the panel rather than the lawyer. A lawyer should use open-ended questions so that a juror will reveal an experience or opinion in an area that is helpful to your case. The panel will more likely believe and remember information and knowledge shared with them by one of their peers, than they will if that same information comes from the attorney. Examples of questions that will allow the jurors to educate each other will include the following. “What are some reasons why an innocent person would not testify?”

E. What to do when:

1. You’re fighting a judge? Many times we don’t have to just fight the State in the courtroom, we are also fighting the Judge, the witnesses against us and preconceived notions. Here are some common battles with judges: Juror Questionnaires:

1. How to get judge to do it. (do all the work yourself)

2. Submit it in advance

3. Have copies.

4. Try to get State to agree

5. Bring pencils/ Pens

6. Keep it short and to the point!

Jury Shuffles:

1. Right to it under CCP Art. 35.11 (can be oral or written)

2. Before Voir Dire Commences

3. Do have a right to see panel seated. See Scott v. State 805 S.W.2d 612, 614 (Tex. App.- Austin 1991, no pet.)

Requests that challenges for cause be taken up after voir dire:

1. Reasons why: can take up much time

2. does not interrupt your flow;

3. If the attorney has a talkative juror who is the subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I know I am cutting you off, but we will be talking with the Judge a little later.”; and

4. By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause.

5. Other reasons to present to the judge why you want to do it after your voir dire: There are many inherent problems with the challenge-for-cause-as-you-go approach. other jurors may get bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire.

Time Limits:

Judge may impose reasonable time limits McCarter v. State, 837 S.W.3d 117, 118 (Tex. Crim. App. 1992). Most defense lawyers advise saving constitutional questions for the end so judge cannot deny you more time. Cannot preclude defense from asking questions already asked by prosecutor Williams v. State, 804 S.W.d 95, 107 (Tex. Crim. App. 1991).

How to challenge:

1. Object: (go constitution first)

2. Infringes on 6th amendment right to counsel.

3. Article 1, Sec.- right to question jurors to exercises challenges for cause/ peremptories)

4. Record must reflect:

a. Counsel did not attempt to prolong the voir dire

b. Party was not permitted to ask proper voir dire questions- (Read questions into the record- make a bill)

c. To preserve error D must show: i. He asserted a clear and specific challenge for cause ii. He used a peremptory challenge on the complained of venire member iii. He exhausted all peremptory challenges iv. He requested and was denied additional peremptory strikes; and v. An objectional juror sat on the jury (Davis v. State, 329 S.W.3d 798, 807 Tex. Crim. App. 2010).

Criminal Defense Lawyers Project

15th Annual Jolly Roger

December 09, 2022 Springhill Suites Denton Denton, TX

Topic: Pretrial Practice

Speaker: Anne Burnham

Anne More Burnham

Center for Legal and Social Justice 2507 NW 36th Street San Antonio, Texas 78228

Office Tel: 210-431-5753 Office Fax: 210-436-3413

Mobile Tel: 210-218-4355

Email: ABurnham@stmarytx.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

THE JOURNEY TO JUSTICE: PRETRIAL INVESTIGATION AND PRACTICE

Anne More Burnham

Center for Legal and Social Justice 2507 NW 36th Street

San Antonio, Texas 78228

Office Tel: 210-431-5753

Office Fax: 210-436-3413

Mobile Tel: 210 218 4355

Email: ABurnham@stmarytx.edu

The Journey to Justice: Pretrial Practice Tools

Cases are not won in a vacuum. Winning takes considerable pretrial preparation, which includes a strong defense investigation, research of the applicable law, and the filing and litigation of pretrial motions. This paper will focus on several powerful pretrial tools from each category, to add to your defense arsenal.

I.

Top Tips for Pre-trial Investigation

A. The Productive Client Interview: Productive interviews require Preparation

Investigation in the case begins even prior to the first client meeting. The first meeting with your client will be productive in direct proportion to the amount of information you have. With that in mind, it is advisable to obtain the following prior to the initial meeting:

1. Obtain the charging instrument from the court. This is not part of the discovery you obtain from the State. Rather, you must obtain the charging instrument from the Court. Without it, you will not know what the precise charges against your client are. Having this

information prior to interviewing the client is essential as you cannot rely on the client knowing what the charges offense(s) are; particularly when the arrest was made at large, or your client does not believe they were involved in criminal activity. Without the charging instrument, you cannot explain to the client the elements of the offense, defenses available, or the range of punishment. Furthermore, many charging instruments are defective for one or more reasons, and early examination of it will be valuable to your decision whether to file a motion to set aside the charging instrument.

2. The Penal (or other) Code provision the client is charged with:

Once you have identified the charges, you must research the law to know the elements of the charged offense, available defenses, and the range of punishment and lesser included charges. In the first meeting, every client wants to know the range of punishment, and particularly, the worst thing that can happen to them.

3. Obtain a copy of the police report.

You should obtain this from the arresting agency, if you have not yet received case discovery from the State. You will need this to ascertain the factual allegations of the charges, and to explain them to the client.

4. Obtain enough client identifiers to look up their current case and criminal history:

At the least, you will want the client’s full name and any aliases; home address; date of birth; social security number; SID number; TDCJ number, if they have been previously incarcerated; Texas Driver’s License number; case number(s); the nature and location of any other charges presently pending; the arresting agency; the date, time and location of the arrest(s); which court(s) the cases are pending in; time and date of the next setting(s); client’s probation/parole status; client’s immigration status; client’s bond information; client’s warrant status; client’s employment.

5. Advise your client, in the strongest possible terms, that they talk to no one before the scheduled meeting with you.

Make sure to emphasize there are no exceptions to this rule.

Having the above referenced information is essential to developing client confidence, and your client’s confidence and trust in you is the cornerstone to building a solid case. For additional tips on conducting a client interview, especially for new lawyers, see the attached Client Interview Checklist.

B. Do what you can to get the Client out of jail

If your client is in jail, that will be an impediment to trial preparation, as well as a constant matter of concern to your client and their family. All of the ways in which your client can make themselves look better on paper, such as working, attending school, engaging in counseling, self help and community service, are frustrated if they are stuck in jail. Additionally, even before the emergence of Covid 19, getting to visit our clients in jail is far from easy and often of questionable privacy. To address the matter and hopefully, get the client out of jail, you should file an Application for Writ of Habeas Corpus Seeking Bail Reduction. Hearings on writs are not subject to the Texas Rules of Evidence. Thus, hearsay is admissible, which includes affidavits of family and friends of the client regarding bail issues, or an Inmate Declaration from the client.

IMPORTANT PRACTICE CAVEAT: Do not request a bail reduction via a pretrial motion, because you have no right to an interlocutory appeal of a denial of

motion to reduce bond. See Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). However, if the court denies a Writ of Habeas Corpus Seeking Bail Reduction, you can file an interlocutory appeal right away.

The Defense Investigation:

Case investigation begins with the client interview, but entails much more. Not only must counsel investigate the facts pertaining to guilt-innocence, but counsel is charged with the responsibility of investigating punishment evidence, particularly mitigation evidence.

Investigate the Guilt Innocence Facts:

Our knowledge of the case comes from both the discovery we obtain from the State, and our independent defense investigation. A thorough investigation entails the following:

Go to the scene: This should be done as soon as possible, as the appearance of the scene is subject to change. If possible, and when it seems necessary for understanding of the facts, invite your client to accompany you to the scene. In situations where the client is unable to accompany you, you should

make a detailed map, diagram, video or take photos of all aspects of the scene so that you can go over them in detail with the client.

It is best to observe the scene at the same time of day and/or under the same conditions present during the time of the allegation. For example, in a DWI, you want to go to the scene of both the drive and the stop during similar traffic conditions, weather conditions, lighting conditions, etc… Taking photographs under these conditions is a good idea (note authentication of photographs, per Texas Rule of Evidence 901 requires a person of knowledge testify the photograph fairly and accurately depicts the thing in question). Because Texas Rule of Disciplinary Conduct Rule 3.08 prohibits you as counsel from being a witness in the case, you should bring someone with you, who could serve as an investigation witness, for purposes of admitting such evidence, if necessary.

Request Surveillance Video (when appropriate): A picture says a thousand words, and a video even more. Cameras are everywhere today many traffic lights have cameras, and indoor and outdoor security cameras are not only at business locations, but many private homes have them also. Therefore, it is quite possible the alleged offense was caught on nearby video. But before you start inquiring about the existence of video of third parties, and certainly before

you subpoena any, you want to have an honest conversation with your client about whether the video would be likely to help or harm their case. If the client still wants video after an honest discussion about how bad it would be for the defense to subpoena damaging evidence in their case, by all means obtain it. This needs to be done quickly though, as older, unimportant recordings are deleted or recorded over.

Talk to Fact Witnesses:

Conduct an independent investigation with alleged fact witnesses, and do not rely exclusively on police reports or witness statements, as they may be incomplete or misleading. It is best to utilize a licensed investigator to interview witnesses. If that is not possible or practical, make sure you bring a person who is not a lawyer in the case, so that they can serve as an impeachment witness, if needed. Stearnes v. Clinton, 780 S.W.2d 216, 224 (Tex. Crim. App. 1989) (holding “[u]nless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his

impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.”).

Prepare for Law Enforcement Witnesses:

Obtain Officer TCOLE (Texas Coalition of Law Enforcement) records for each of your officers. This is easy to do from your computer. You send an open records request email to open_records@tcole.texas.gov. The email must have your name, address and a detailed a description of what you are requesting. In the email, request TCOLE records of each officer involved in the case, and include their name, badge number and agency. TCOLE records, once requested are usually returned within a few days.

These records provide valuable information as to what training and certifications an officer has received, and how long ago. There are certain classes all officers take, but like to down play during testimony. It is not uncommon for officers to spend days in courses teaching them how to testify and behave as a witness. Defense witnesses, if any, have had no such training. When dealing with police officer credibility as an issue in your case, it is helpful to point out the precise number of hours in the officer’s career that were spent learning how to testify, answer questions and present themselves on the witness stand. Similarly,

officers have been trained in detail how to write a police report, and some have days of such training. In the right case, it would be helpful to get the officer to admit exactly how much training they have in these matters, as it could impact the jury’s assessment of their credibility. Now that virtually all cases have hours of body camera footage, which are often muted or shut off in critical places, it becomes helpful for your cross examination to have a combination of records evidencing the hours that officer trained on how to use the body camera, as well as law enforcement agency procedures regarding silencing the audio on body camera video. If the officer is certified in any skill, such as field sobriety tests, these records will evidence the certification level and dates of certification. Knowing these facts in advance of trial will help you prepare your cross-examination.

Law Enforcement Protocol Manuals:

Additionally, obtain and review pertinent law enforcement agency protocol manuals and internal operating procedure material prior to trial. In light of recent pushes toward transparent government, many of these are available for download on the police agency’s website. If not, however, they can be obtained via an open records request of the agency. If one is up against a time crunch or the agency

takes too long to produce the material, it can also be requested via a subpoena duces tecum of the agency’s custodian of records to produce the materials in court.

Mobile Data Terminal/Mobile Computer Terminal Records:

Obtain Mobile Data Terminal/ Mobile Computer Terminal records of the officers involved in your case. This can be done by a subpoena duces tecum of the custodian of records for the law enforcement agency. Mobile data terminals are the laptop computers inside police cars that provide police access to mapping, crime information databases, communication with central dispatch and other officers. Sometimes officers use this system to message one another. As is the case with texting generally, these message are not filtered and often contain sentiments the officer would not put in their report, or even allow to be captured on body camera audio. Occasionally, if an officer texts something improper, or that evidences their bias about a case or defendant, the information can be used for impeachment purposes If inflammatory enough, such communications might cause the case to be dismissed. Although not expressly recognized as the reason for dismissal, I had a DWI dismissed not long ago in a case where the MDT showed the officer joking around with fellow on duty DWI task force officers about whose turn it was to get the next “free lunch.” “Free lunch” was what these officers called it when an

officer who was not certified in administering standardized field sobriety tests made a DWI stop, but needed their help administering the tests. The officers’ indiscretion of gloating on their mobile data terminal about being handed an arrest, before responding to the scene, much less determining probable cause for an arrest, facilitated the dismissal of the case.

Conduct a Defense Mitigation Investigation

Mitigating evidence is another factor that takes time to thoroughly investigate, regardless of whether your client wants a jury trial or a plea bargain. Simply put, mitigating evidence is anything that militates in favor of a less harsh sentence. Mitigating evidence is always relevant to punishment and sentencing. When investigating mitigating evidence, make sure to have a series of releases available for your client to sign: HIPAA releases for protected medical/mental health records, releases for school records, releases for prior attorney’s files and records, and general releases to use as needed.

The law requires it:

The duty to investigate mitigation falls squarely on defense counsel’s shoulders. Wiggins v. Smith, 539 U.S. 510 (2003) is the seminal case on defense

counsel’s Sixth Amendment duty to independently investigate mitigating evidence for their clients. In Wiggins, 539 U.S. at 523, the U.S. Supreme Court held that the evaluation of counsel’s decision not to introduce mitigating evidence during sentencing depended on whether counsel’s investigation supporting the decision not to produce mitigating evidence was itself reasonable, based on prevailing professional standards. In Wiggins, the Court held that defense counsel’s failure to investigate the defendant’s social history was based on counsel’s inattention and was unreasonable and inconsistent with professional standards. Id. at 526 34. The Court determined that if Counsel had presented the jury with available mitigating evidence of the defendant’s sexual abuse, isolation and physical torment as a child, there was a reasonable probability that the jury would have returned a different sentence. Id. at 536.

Accordingly, Texas courts have embraced Wiggins. In Ex parte Gonzalez, 204 S.W.3d 391 (Tex. Crim. App. 2006), the Court of Criminal Appeals held that counsel was ineffective for failing to investigate mitigating evidence. Specifically, in Gonzalez, counsel failed to ask either the defendant or defendant’s immediate family whether the defendant suffered childhood abuse. To put counsel’s duty in context, Gonzalez’s counsel interviewed the defendant’s sister and called her to

testify at the punishment phase regarding the defendant’s problems with epilepsy, attention deficit disorder, being bullied in school and being diagnosed as borderline mentally retarded. Id. at 395. Nevertheless, the Court of Criminal Appeals held that defense counsel rendered ineffective assistance because counsel did not investigate available mitigating evidence from other relatives which would have revealed that Mr. Gonzalez suffered severe physical and sexual abuse as a child. Id. at 397.

Even though Ex parte Gonzalez was a capital case, Wiggins applies to non capital cases as well. See Ex parte Briggs, 187 S.W.3d 458, 466 (Tex. Crim. App. 2005) (applying Wiggins and Strickland standards in a felony injury to a child case); and Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) (applying Wiggins and Strickland standards in a sexual assault and kidnapping case). Additionally, intermediate appellate courts throughout Texas have also embraced Wiggins in their Sixth Amendment analysis in non capital cases. For instance, in an aggravated sexual assault case, Freeman v. State, 167 S.W.3d 114 (Tex. App. Waco 2005, no pet.), the court of appeals held that counsel’s failure to investigate defendant’s mental health history, for purposes of mitigation, prejudiced the defendant and required a new punishment

hearing. Also in a case involving possession of controlled substances Wiggins was applied. See Lair v. State, 265 S.W.3d 580 (Tex. App. Houston [1st Dist.] 2008, no pet.). In Lair, the court of appeals held that the defendant was denied effective assistance of counsel when the only witness presented at punishment, when other witnesses were available to testify, was the defendant’s sister-in-law, and this prejudiced the defendant’s case. Id. Even prior to Wiggins, Texas courts have held that a failure to investigate, evaluate and present helpful mitigating evidence at the punishment phase of a non capital trial, when family and friends are available to testify, is objectionably unreasonable and as such amounts to ineffective assistance of counsel. See, e.g., Milburn v. State 15 S.W.3d 267 (Tex. App. Houston [14th Dist.] 2000, pet. refused) (case involving possession with intent to deliver where the court of appeals held that defense counsel’s failure to present mitigating evidence was prejudicial because testimony must first be evaluated before determining that it will not be helpful); Moore v. State, 983 S.W.2d 15, 22 25 (Tex. App. Houston [14th Dist.] 1998, no pet.) (a case involving delivery of less than twenty eight grams of cocaine where defense counsel, in a post trial affidavit, both averred that he had no trial strategy for failing to investigate mitigating evidence and listed what mitigating evidence was available, such as the

defendant’s work history, his military service, his awards and his parental responsibilities).

Prepare a Mitigation Case Early: Topics that must be investigated for a strong mitigation case: 1. Client’s history of neglect and/or abuse: (physical, emotional, psychological, mental, sexual) by anyone [spouse/partner, parents, siblings, extended relatives, teachers, peers, employers, etc...). Make sure your client understands why you are asking about this: evidence of abuse and neglect is relevant at punishment. In Wiggins v. Smith, 539 U.S. 510, 512 13 (2003), the Supreme Court called such evidence “troubled history” evidence, and characterized it as “powerful” mitigation evidence. Id.

2. Mental Illness: Rather than only asking your client whether they have been diagnosed with mental illness or mental health issues; consider asking about mental health diagnoses in the context of all medical diagnoses, thus reducing any individualized stigma. For example, ask broad questions such as, “are you under the care of any medical professionals? If yes, please provide professional’s name and specify condition(s) being treated for”; or consider presenting a list of medical diagnoses alphabetically, and include

mental health diagnoses: e.g., “Have you been diagnosed with any of the following: ADHD or ADD (Attention Deficit (Hyperactivity) Disorder), Angina (heart disease), Anti-social Personality Disorder, Anxiety, Asthma, etc...” Of course you cannot anticipate every possible mental health diagnosis, but you can fit the primary ones into a list, and include space for “other.” To determine if your client suffers from intellectual or developmental disabilities, it is helpful to ask about school. Did they have an individualized education plan (“IEP” or a “504 plan”) in school? Were they in mainstream classes in school? Or, did they receive help or “special education” in their school classes? If possible, have some releases available for the client to sign that can be used to obtain school records.

3. Medical Diagnoses: While it may not provide a defense, the defendant’s poor health at the time of the offense and at the time of trial can be mitigating. Showing that your client has advanced stage cancer, progressive cognitive impairment, or suffers from various neurological conditions might prompt a court to keep your client out of prison. Similarly, if your client is a caregiver for someone suffering from serious illness, this too might

prompt mercy from the sentencer- if not for your client, perhaps for the person who your client cares for.

4. Get character witness information:

Get names of people who know your client and who would say positive things about them. Importantly, these witnesses will need to know about the offense your client is charged with. A character witness is someone who should be able to say they know your client well. That message falls apart if, after saying glowing things about your client, they have to admit on the witness stand that they were unaware of the criminal charges. Also, it is important to discuss relevant punishment testimony with any character witness prior to putting them on the stand. In obtaining character witnesses, try to branch out from family. This is important for several reasons. First, it can show your client’s connection with various aspects of the community (i.e., church, volunteer work, school, employment, etc...). Second, close family members do not always make the best witnesses. When their loved one is convicted, their disbelief, anger and grief are often all encompassing and can obstruct rational, and relevant, testimony. A mother or father who firmly believes their child is innocent, may not be able to testify during punishment about anything other than their child’s innocence.

Obviously, testimony about innocence is not relevant punishment evidence, and can be an affront to the jury who just convicted the defendant. One must also vet their character witnesses for any prior offenses that would be admissible. Failure to do so could result in your character witnesses having their own characters impeached during cross-examination.

Reputation and opinion testimony are relevant at punishment. Reputation testimony pertains to your client’s reputation in the community for a certain character trait. It is elicited by “have you heard” questions. The witness need not know the defendant personally, but only has to have discussed the defendant’s reputation with more than one person. Opinion testimony, on the other hand, is elicited by “did you know” questions, and requires the witness to know the defendant.

5. Have your client “build” mitigating evidence by engaging in self-improvement:

Advise and encourage your client to make changes that show they are working on self improvement. For example, in a DWI case, have your client go to alcohol awareness and victim impact classes, go to counseling or attend Alcoholic Anonymous meeting, and get a sponsor. Advise them to get started on

community service and make sure to get proof. In drug possession cases, help your client find rehabilitation if they are open to that, go to Narcotics Anonymous meetings, start getting proof of clean urinalysis tests, attend counseling, and complete community service. In an assault or domestic violence case, have your client start counseling, take an anger management class, and do community service. Proof of these things will be helpful for your client at a punishment proceeding. Make sure the client understands you are asking them to do these things, not because you do not believe in their case, but because you will need powerful mitigation in the event they are convicted. While it is possible these proactive measures will actually help the client, they are also important in building a strong punishment case. Furthermore, the client’s hard work in building a mitigation case, may also convince the State to make the plea offer your client wants, or even prompt a dismissal.

II.

Research the Applicable Law and File/Litigate Pretrial Motions

A thorough case investigation should prepare you for trial and punishment, if needed. But it should also enable you to provide enough information to help the client assess whether they should go to trial, or plea bargain for a known result. To

do this, we must also identify significant collateral consequences of conviction, research applicable law and file and litigate pretrial motions.

There are early considerations related to both punishment and the impact of a conviction, that can steer the course of the representation early on, and impact the ultimate disposition of the case. In order to effectively advise our clients whether to plea bargain or take their case to trial, so that they can make an intelligent decision between the two, you will need to have investigated punishment evidence and the impact of the disposition on the particular client and their circumstances. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970) (a voluntary and knowing plea can only be made with information sufficient to make an intelligent choice among the alternative courses of action open to the defendant).

1. Law to Research and Assess in Every Case

Who should decide punishment, judge or jury?

The decision whether to have the judge or jury decide punishment in a trial depends on several factors.

An important consideration will be who can give probation in the case. There are limitations on court ordered community supervision for certain offenses, including aggravated felonies and cases involving a deadly weapon finding. In those cases, if the jury is able to recommend probation, the defendant frequently elects to go to the jury for punishment.

The court cannot order community supervision in the following cases: Criminal Solicitation when charged as a first degree felony; Murder; Capital Murder; Aggravated Kidnapping Trafficking of Persons; Indecency with a Child; Sexual Assault; Aggravated Sexual Assault; Injury to a Child/Elderly/Disabled Individual, when punishable as felony of the first degree and victim is child; Aggravated Robbery; Burglary when actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code; Compelling Prostitution; Sexual Performance by a Child; certain offenses under Chapter 481, Health and Safety Code when child is used in commission of the offense or committed in drug free zone; or for any felony offense when it is shown that a deadly weapon was used or exhibited during the commission or

immediate flight from commission of the felony. See Tex. Crim. Proc. Code Ann. § 42A.054.

Pursuant to Tex. Crim. Proc. Code Ann. § 42A.056, the jury is unable to recommend probation for the following offenses: Murder; Indecency with a Child/ Sexual Assault/ and Aggravated Sexual Assault of a Child younger than 14 years of age at the time the offense was committed; Aggravated Kidnapping if the victim was younger than 14 years of age at the time the offense was committed and the intent to violate or abuse the victim sexually. Human Trafficking, Sexual Performance by a Child, or a Chapter 481 Health and Safety Code violation in a drug free zone. Tex. Crim. Proc. Code Ann. § 42A.056 (West). In these cases, where a court can order probation, the defendant usually elects to have the court assess punishment.

Other factors that bear on the decision of who should assess punishment include the type of offense, public sentiment regarding the offense, and whether the community or the court are known for harsh judgment for that type of offense. Public disdain for certain offenses militate against having the jury decide punishment. For example, DWI is a divisive and inflammatory offense that people feel strongly about. The court hears the facts of DWI cases every day and

is unlikely to be influenced by emotion in sentencing. It is unusual for a court to order jail in a standard first time DWI, but juries are far less predictable.

Over time, practitioners in a community gain information about the various judges, and learn to know the community sentiments, if any, for various offenses. However, if you are practicing in a region where you do not know these factors, it is wise to consult local counsel, through TCDLA or an affiliate organization, to learn more about the community and court with regard to sentences.

2. Procedure on How to Make an Election as to Punishment:

Thoughtfully deciding whether the judge or jury should assess punishment in a case is important, but knowing how to make that happen procedurally is critical. Punishment Election is provided for by Texas Code of Criminal Procedure Art. 37.07 §2(b). There are essentially three ways to elect who will assess punishment. The first two guarantee the jury will assess punishment:

1. Cases where jury can recommend probation by filing sworn motion for probation before trial begins.

2. By electing in writing before the commencement of the voir dire examination of the jury panel, that the punishment shall be assessed by the jury, or the court - whichever is being elected.

The third way in which an election as to punishment occurs is not by action, but inaction: 3. by doing nothing.

If the defendant does nothing with regard to election of punishment, the court will assess punishment, as that is the statutory default. See Tex. Crim. Proc. Code Ann. § 37.07 §2(b). Of course, this result is fine if it is planned, but it can be devastating if it is the result of an oversight. Counsel’s failure to properly elect the jury to assess punishment is most devastating in cases where 1) the defendant expected to request probation and, 2) only the jury can recommend probation.

See Ex parte Walker, 794 S.W.2d 36, 36 (Tex. Crim. App. 1990)(ineffective assistance of counsel where defense counsel intended jury to assess punishment but failed to timely file written election for jury to assess punishment).

3. Assess Eligibility for Deferred Adjudication

Hand in hand with learning about the various collateral consequences of conviction, our clients want to know whether some means to avoid conviction exists, if not through dismissal, then deferred adjudication or pretrial diversion. Both of these results are only available through plea bargaining.

Only the court can order deferred adjudication for certain offenses, and not when the defendant pleads not guilty. Tex. Crim. Proc. Code Ann. § 42A.101. See also, Burch v. State, 541 S.W.3d 816 (Tex. Crim. App. 2017) (acknowledging a defendant who pleads not guilty at trial, and then is found guilty, cannot receive deferred adjudication from the court). Pretrial diversion is an agreement with the State and can only be obtained with the State’s approval. Just as it is incumbent upon us to know if our client is eligible for these things, we must also know whether deferred adjudication, in our client’s case, is the same as a conviction for purposes of collateral consequences. Even though a deferred adjudication spares one from a final conviction, for federal immigration purposes, a deferred adjudication is the same as a conviction for deportation and removal purposes. See 8 U.S.C. § 1101(a)(48)(A). If deferred adjudication would provide a helpful buffer from collateral consequences attendant with conviction, a plea bargain to include

deferred adjudication might well be in the client’s interest. Per Chapter 481 Health and Safety Code, it is not available for offenses involving a drug free zone; a sexual offense against a child if the defendant has previously been placed on probation for such an offense; Continuous Sexual Abuse of Young Child/Children, Aggravated Sexual Assault when charged as repeater or habitual, or when minimum term of imprisonment is increased to 25 years because the victim is younger than six years of age, or younger than 14 years of age but committed causing or threatening serious bodily injury. Tex. Crim. Proc. Code Ann. § 42A.102 (a).

Avoiding a final conviction with deferred adjudication can be alluring to the defendant. The court will admonish the defendant that violation of the terms of the deferred adjudication could result in being sentenced the high end of the full range of punishment, regardless of how long they have been on deferred adjudication. See Tex. Crim. Proc. Code Ann. § 42A.102(b). However, so that your client fully understands what can happen, defense counsel should fully counsel the client on what that means for him, in practical terms. Not every defendant is a good candidate for probation, and an even worse candidate for deferred adjudication because the liability is so great. For example, if you have a client with a drug

addiction problem, and they are unable to stop using, deferred adjudication could serve as an indirect pathway to a sentence for the highest punishment available.

4. Identify Significant Collateral Consequences Before Trial:

The statutorily prescribed range of punishment is only part of the “worst case scenario” that our clients want to know about when they seek our counsel. Full investigation of the collateral consequences of conviction, is one of the first things we research so as to provide critical information our clients need to decide how to dispose of their case. The effects of various collateral consequences of conviction, punishment or both, often cause our clients to think about alternative dispositions, and plea bargaining to avoid those consequences. Such collateral consequences include, but are not limited to, immigration consequences, the loss of one’s driver’s license, ignition interlock, loss of professional licenses, loss of right to possess firearm, loss of job, inability to obtain student loans, public housing, etc...

Immigration: The Supreme Court noted in Padilla v. Kentucky that the landscape of immigration law had changed so as to make deportation or removal commonplace consequences of criminal convictions. Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (holding “[t]he ‘drastic measure’ of deportation or removal,

Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes.”). The offenses triggering this consequence include aggravated felonies, crimes of moral turpitude and crimes of violence. Padilla requires defense counsel, per the Sixth Amendment, to properly advise the defendant of immigration consequences when deportation or removal is conceivable. Id., 559 U.S. at 374. For purposes of proper advice, it should be noted that deferred adjudication is considered to be a conviction under federal immigration law. See 8 U.S.C. § 1101(a)(48)(A); Moosa v. INS, 171 F.3d 994, 1005 06 (5th Cir. 1999) (acknowledging that assessment of deferred adjudication in Texas constitutes conviction for immigration purposes). Even more, pretrial diversion, which promises outright dismissal of charges upon successful completion, can be considered a conviction for federal immigration purposes if it is administered in a way that requires the defendant to enter a judicial confession or admission of guilt. See 8 U.S.C. § 1101(a)(48).

The Loss of One’s Right to Possess Firearms: Conviction of a Class A family violence assault results in the loss of one’s right to possess a firearm for the later of either 5 years from the release from confinement or date of release from probation. See Tex. Penal Code § 46.04 (b). Texas State law provides that a

person convicted of a felony family violence offense cannot possess a firearm until the later of the following: after fifth anniversary of the person’s release from confinement following conviction of the felony, or the person’s release from community supervision, parole or mandatory supervision. Tex. Penal Code § 46.04 (a)(1). After the period described in subsection (a)(1), a person commits an offense if they possess a firearm at any location other than the premises at which the person lives. Tex. Penal Code § 46.04 (a)(2). As a matter of federal law, however, a felony conviction, including one for domestic violence, results in the loss of the defendant’s right to bear firearms for life. See 18 USC 922(g). In fact, a person with a felony conviction could be prosecuted under federal felon in possession of a firearm laws if they are found in possession of any firearm. See 18 USC 922(g).

Felony Conviction Consequences:

Right to Vote: A person who has a final felony conviction is not eligible to register to vote until they have either successfully completed their punishment, including incarceration, parole, supervision, period of probation, or been

pardoned. At that time, the person is eligible to register to vote. Texas Election Code § 11.002.

Right to Sit on a Jury: A person who is either presently charged or convicted of a misdemeanor theft or felony is not eligible to be selected for jury service or grand jury service. Tex. Code Crim. Proc. Art. 19.08 (7) & (8).

Loss of Professional Licenses: While the last legislative session saw some favorable changes to the laws regarding licensure. A person convicted of a felony or crime of moral turpitude may be ineligible to obtain, or maintain, their state or federal professional licenses. The Texas State Law Library website has compiled a list of the collateral consequences of a felony conviction. It has documented over 165 restrictions placed on convicted felons in Texas. This website also lists the effect of a felony conviction on different occupations and licenses: https://www.sll.texas.gov/library resources/collections/restrictions on convi cted felons/ What is significant, and must be assessed in each case, is that deferred adjudication, for a felony offense, often has the same consequences as a conviction for purposes of many occupations and licenses.

Drug Convictions and Loss of Government Benefits:

Pursuant to 21 U.S.C. § 862(a), those convicted of state and federal drug possession and distribution offenses, are subject to denial of federal benefits, including public housing, food stamps, and medicare and medicaid. First and second time offenders are subject to a temporary denial of benefits, and third time offenders are subject to mandatory permanent ineligibility. Id.

Drug Convictions and Loss of Student Financial Aid: A person convicted of any state or federal offense involving the sale or possession of controlled substances is subject to temporary or permanent ineligibility for federal student loans or grants. The Drug Free Student Loan Act, 20 USC 1091 (r) provides the time line for how long a student remains ineligible. Texas law also imposes ineligibility for State financial aid and forfeiture of prepaid higher education tuition for those who have been convicted of or adjudicated as having engaged in delinquent conduct constituting a felony, a class A misdemeanor, or any offense in Chapter 481 of the Texas Controlled Substances of Act. See Texas Education Code §54.633(b). This includes even class B and C misdemeanors such as possession of marijuana and drug paraphernalia.

Suspension of Texas Driver’s License: Conviction for certain offenses, including alcohol related offenses and motor vehicle felonies result in suspension of driving privileges. Such offenses include criminally negligent homicide, evading arrest, DWI, Intoxication Assault, Intoxication Manslaughter, motor vehicle felonies, failure to stop and render aid resulting in injury/death, use of fictitious license, etc...

Depending on the client and case, any one of these collateral consequences may present serious enough liability, to cause your client to plead to another offense that does not carry the untenable consequence.

5. Can the charges be enhanced?

It is important to know the effect of any prior offenses that could be used for enhancement. For instance, if your client’s case is eligible for enhancement, you may advise your client that pleading to the undercharged offense would be advantageous, so as to avoid the greater liability should the case ultimately be enhanced. Also, if the State has enhanced the client’s case, it is important to assess whether the enhancement is legitimate, or not. Several factors, including the following, need to be considered:

A. The Finality of the Prior Conviction:

The law requires the prior conviction used for enhancement purposes be a final conviction. In Robertson v. State, 420 S.W.3d 832, 838 (Tex.Crim.App. 2013) the Court of Criminal Appeals held if the record “...affirmatively reflects that a prior conviction was not final, then the conviction cannot be used to enhance punishment, even though the defendant pled ‘true’ to the enhancement paragraph.” Id.

B. Whether an Out of State Offense Can Be Used to Enhance

Section 12.41 of the Texas Penal Code is entitled “Classification of Offenses Outside this Code” and sets forth classification of offenses outside of the penal code, including offenses out of the State for purposes of enhancement. Tex. Penal Code Ann. § 12.41. In Ex parte Blume, 618 S.W.2d 373, 376 (Tex.Crim.App.1981), the Court of Criminal Appeals explained section 12.41 was enacted “...to deal specifically with the classification for enhancement purposes of convictions obtained outside the [Texas] Penal Code”). The Court of Criminal Appeals has noted that if a federal conviction or a conviction from a sister state is punishable by confinement in a penitentiary, it shall be classified as a third degree

felony for enhancement purposes. Davis v. State, 645 S.W.2d 288, 292 (Tex.Crim.App.1983).

C. Whether the State Can Authenticate the Prior Offense?

There are multiple ways for a prior offense to be authenticated for purposes of enhancement, and admissibility as punishment evidence pursuant to Tex. Code Crim. Proc. Art. 37.07. The acceptable modes of authentication include certified copies of the judgment from the court of conviction, or non certified copies introduced via the custodian of records; the penitentiary file (“pen packet”) of an inmate certified by the record clerk of TDCJ, or authenticated in court by the custodian of records; or, by testimony in the form of admissions, stipulations, and pleas of true. See Beck v. State, 719 S.W.2d 205, 209 210 (Tex. Crim. App. 1986).

File and Litigate Pre-trial Motions

There are many places to find standard and creative pretrial motions to file in your cases, including resources on the TCDLA website, and attorney Mark Stevens’ website where he shares many motions. Below are just a few of the powerful motions that will boost your resistance to the State’s case.

1. Filings to Protect Against Extraneous Misconduct Evidence

File a Request for Notice of Extraneous Offenses: The State always wants to introduce extraneous misconduct, and it is always bad for the defense. There are several roadblocks we can set up to try to keep that damaging evidence out. One of the routine things defense counsel can do to protect their clients from extraneous offense “bad acts” evidence at all stages of the trial, including punishment, is to file a “Request for Notice of the State’s Intent to Offer

Extraneous Offenses at Trial per Tex. Code Crim. Proc. Art. 37.07, Tex. Code Crim. Proc. Art. 38.37, and Tex. R. Evid 404(b) and 609.”

In Roethel v. State, 80 S.W.3d 276, 281 (Tex. Cr. App. 2002) the Court of Criminal Appeals explained:

"Before 1993, the State could not offer evidence of unadjudicated extraneous offenses at punishment hearings. In 1993, the Legislature simultaneously removed the bar to the admissibility of such evidence based on its substance and imposed a procedural requirement for its admissibility. The language of section 3(g) is mandatory; it states that the State "must" give notice upon timely request and deems the notice a "requirement." The logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible." [internal citation omitted]

Id.

Importantly, defendant must request notice of such extraneous offenses or bad acts which the State intends to introduce in its punishment case in chief, in order to be entitled to receive notice of those extraneous matters, including the date of the alleged incident, the county where it allegedly took place, and the alleged victim’s name, before trial. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Cr. App. 2002). This request should be filed in every case and served upon the State, with a copy filed with the clerk of court in the case. The request should be timely filed, well in advance to accomplish its purpose. See Espinosa v. State, 853 S.W.2d 36 (Tex. Crim. App. 1993)(holding a request made on the day of trial is not timely). Because this is a request of the State, and not a motion, no court action is needed, and the request itself is sufficient to trigger the State’s obligation to provide requisite notice. Id. There are exceptions to the requirement of notice. Although notice of extraneous misconduct the State intends to offer in it case in chief must be provided, the State is not required to provide notice of rebuttal extraneous office evidence either at guilt innocence or punishment, Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App. 2002), or same transaction contextual evidence (evidence which is related to the context of the offense for which defendant was charged, and

therefore not conduct that was extraneous to defendant’s commission of that offense). Worthy, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). Similarly, the State need not provide notice of extraneous offenses for which the defense opened the door to, either through testimony or via a defense to which the State is entitled to rebut.

Upon proper objection by the defense, the State’s wholesale failure to respond to a timely request for notice, renders it error for the court to admit evidence of the extraneous misconduct. Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005).

When the State provides notice of intent to offer extraneous misconduct, the notice also must be sufficient and timely. While there is no clear direction from the courts on what timely notice is, Texas Rule of Evidence 404(b) requires it be “reasonable” notice. Hayden v. State, 66 S.W,3d 269 (Tex. Crim. App. 2001) One court of appeals addressing reasonable notice determined notice of only three days was not reasonable. Webb v. State, 36 S.W.3d 164, 179 (Tex. App. Houston [14th Dist.] 2000)(holding “[h]aving requested notice of the State's intent to use extraneous offense evidence more than six months before trial, the appellant was entitled to assume that the State did not intend to use such evidence because the

State had not provided the requisite notice by the eve of trial.). But see, Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App. Corpus Christi 2000, no pet.)(three days notice was sufficient in that the extraneous misconduct evidence derived from the defendant’s statement). The following analysis regarding the reasonableness of notice shows the courts determine reasonable notice in light of how long the defendant’s request had been on file with respect to when, and how close to trial, the state responded with notice:

“Instead, the reasonableness of the notice is determined by all of the facts and circumstances of the case. See id. Several cases closely approximate this situation, however, and are enlightening on what has been considered reasonable. The Waco Court of Appeals held that so called “Friday notice” was unreasonable, but did so in light of the fact that the defendant's request for notice had been on file for over ten months prior to trial. See Hernandez v. State, 914 S.W.2d 226, 234 (Tex.App. Waco 1996, no pet.). Similarly, the Austin Court of Appeals held the State's notice unreasonable when that notice was provided on the morning of trial, despite the fact that the defendant's request was made six weeks earlier. See Neuman v. State, 951 S.W.2d 538, 540 (Tex.App. Austin 1997, no pet.). By contrast, the Fort Worth Court of Appeals held the notice was reasonable when it was provided five days prior to trial after a request made two weeks earlier. See Self v. State, 860 S.W.2d 261, 264 (Tex.App. Fort Worth 1993, pet ref'd).”

Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App. Corpus Christi 2000, no pet.) Thus, a practice takeaway tip is, make sure to file the Defendant’s Request for

Notice of Intent early in the representation as it will give you more footing to challenge a late response from the State.

In addition to being timely, the State’s notice of their intent to offer extraneous misconduct must be sufficient. It is not sufficient for the State to allege it provided requisite notice simply by providing the defense discovery, or making their file available. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (holding “we cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice “of intent to introduce” such evidence.”). For punishment extraneous evidence, per Tex. Code Crim. Proc. 37.07, Sec. 3, if the extraneous act that does not constitute an offense, or did not result in a final conviction, the State’s notice must include the date of the alleged extraneous act, the county in which the alleged extraneous act occurred, and the name of the alleged victim.

File and Litigate Pretrial Motions in Limine:

While a motion in limine is not the way to challenge the admission of extraneous act evidence or preserve error for the trial court’s erroneous admission of extraneous offenses, it is an excellent way to protect your client from ambush

with inadmissible extraneous act evidence. File and litigate a detailed pretrial motion in limine and obtain, if possible, a ruling in limine that precludes the State and its witnesses from blurting out evidence about alleged extraneous acts, unless it first gets a ruling from the court allowing same.

File Motions to Set Aside:

We should evaluate every case for the possibility of filing a Motion to Set Aside the Charging Instrument (a.k.a., Motion to Quash or Motion to Dismiss). While it is true the State can refile the case if it is granted, they do not always do that. Furthermore, if the State had problems the first charging instrument, who is to say there will not be additional problems with the second (or third, fourth…) charging instrument. There are many issues that can be challenged by means of a Motion to Set Aside. The motion to set aside in a theft case, appended hereto, is an example of three such challenges to one erroneous charging instrument. The website for TCDLA Hall of Fame attorney Mark Stevens, markstevenslaw.com, is a valuable and free resource for criminal defense motions He has made available for download, hundreds of criminal defense motions, including examples of motions to set aside charging instruments, each indexed by type of offense

PRETRIAL PRACTICE PAPER APPENDIX

NO. 12345

STATE OF TEXAS § IN THE COUNTY COURT VS. § AT LAW NUMBER 00

CLIENT’S NAME § BEXAR COUNTY, TEXAS

DEFENDANT’S REQUEST FOR NAMES AND ADDRESSES OF EACH PERSON THE STATE MAY USE AT TRIAL TO PRESENT EVIDENCE UNDER ART. 39.14(b)

TO THE BEXAR COUNTY DISTRICT ATTORNEY: I.

Pursuant to Rule 39.14(b) of the Texas Code of Criminal Procedure, Defendant requests the state to disclose no later than 20 days before commencement of trial the names and addresses of each person it may use at trial to present evidence under Rule 702, 703, 705 of the Texas Rules of Evidence.

Respectfully submitted by,

/s/ Anne More Burnham ANNE BURNHAM

State Bar No. 00798088 CENTER FOR LEGAL & SOCIAL JUSTICE 2507 NW 36th St. San Antonio, TX 78228 3918 (210) 431 5753 Tel (210) 431 5750 Fax Email: aburnham@mail.stmarytx.edu

Attorney for Defendant, CLIENT’S NAME

CERTIFICATE OF SERVICE

I hereby certify that a copy of defendant’s original Request For Names and Addresses Of Each Person The State May Use At Trial To Present Evidence Under Art. 39.14(b) has been electronically delivered to the District Attorney's Office, Bexar County Justice Center, 300 Dolorosa, San Antonio, Texas, on this the day of , 2022. A copy of the same has been filed with the County Court at Law Number 00, Bexar County, Texas.

/s/ Anne Burnham

ANNE BURNHAM

Attorney for CLIENT’S NAME

NO.

STATE OF TEXAS ) IN THE COUNTY COURT VS. ) AT LAW NUMBER ) BEXAR COUNTY, TEXAS

MOTION TO REDACT INADMISSIBLE PORTIONS OF AUDIO ON POLICE OFFICER VIDEO RECORDINGS

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the Defendant, , defendant in the above and numbered cause, and respectfully requests the Court to instruct the State to redact inadmissible statements and for good cause shows the following:

Pursuant to Texas Rules of Evidence 801, 802, 803, 104(b), 401, 402, 403, and 404(b), the following statements are inadmissible. Inadmissible statements are made in the recordings of Officer , Officer and body cameras (files ”, “ ”and “ " , respectively). The body camera recordings made at the scene, contain the following inadmissible statements and video portions: I.

Statements made by the complaining witness (“ ”) contains inadmissible statements and prejudicial hearsay.

Statements made by the complaining witness are inadmissible hearsay. Tex. R. Evid. 801, 802, and 803. Furthermore, the statements are also irrelevant and highly inflammatory. See Tex. R. Evid. 401, 402, 403 and 404(b). The use of alleged past acts to show character is prohibited by the Texas Rules of Evidence. Tex. R. Evid. 404(b); see Montgomery v. State, 8100 S.W.2d 372, 386 (Tex. Crim. App. 1991). The proffered statements of the complaining witness have no relevance to the charges at hand and are therefore, inadmissible. Id. at 387 (stating that evidence relevant only to character conformity is inadmissible).

Video File ID Video Time

X 23:34-23:38

Inadmissible Statements

Complainant: “You should drug test him too cause he’s all on ice” 27:50-27:52 Complainant: “I can’t tell them about his drug addiction” 28:10-28:24

Complainant: “well what about my car, cause like he know where I live and he’s broke– my car looks like that for a reason. Cause I have– so I’m scared like is he going to come back and do something my car since its out there” 30:31-30:37

Complainant: “He said he was going to take it to the junkyard and get like three thousand or something. I’m like why you going to screw the guy over”

30:35-31:05

Complainant: “Oh, I had a question. Supposedly he said that he uh cause two days he hit me and the same thing. I don’t know if it was two days ago exactly. I think it was Tuesday but that’s not two days ago but supposedly he um made a police report on himself. But now what I heard him talking to yall made it seem like he didn’t do anything. I’m wondering, did he really make that police report.”

31:55-32:01 Complainant: “Because my other assault case, he was supposed to go to court but he didn’t go to court.”

40:55-41:05 Complainant: “Well I had, they called me and I told them you know what he’s in jail, don’t worry about it. Like he was in jail for something else so this one I’m going through.”

X 2:46-3:09 Complainant: “I can’t believe he was trying to say I was. And when he showed me the police report he was like ‘look I even called the cops on myself saying that I hit you but that you have to come forward.’ And now I’m hearing that he’s trying to say that I did it.

6:26-6:38 Complainant: “I don’t know but now I’m mad that he put those because if I was calling yall two days ago or Tuesday when he hit me, like I couldn’t even breathe. He punched me in the back. I should have called.”

6:50-7 : 0 0 Complainant: “I know man, but I should have called when he hit me the other day.”

7:45-7:48 Complainant: “It’s cause he broke my make up too, he’s broken a bunch, and he made a hole.”

8:01-8:06

Complainant: “this but that wasn’t today so I guess we shouldn’t add them right.”

11:15-11:19

Complainant: “I should have called, I’m telling you I was laying in bed for two days because he punched my back.”

11:20-11:24 Complainant: “ I couldn’t even breathe, I would have gone to the hospital but he stole my keys so I wasn’t going to leave.”

15:09-15:14

Complainant: “yeah he had a razor to his throat. You need to make sure he’s on suicide watch.”

X 6:37-6:55

Complainant: “But two days ago he hit my back and I could not walk for two days and I have tiny bruises on my shoulder. But he like, I’m telling you he does it enough to where he don’t leave marks and I’ve been dealing with this for like”

9:55-10:12

Complainant: “multiple times, but today probably like 30 minutes before I had called y’all. But today want as severe as like two days ago when he hit my back and I couldn’t even breathe. I was going to go to the hospital but that’s when he stole my key and I didn’t want to leave my door open.”

10:59-11:02 Complainant: “ Yeah I mean he’s choked me before but this was today.”

11:14-11:22

Complainant: “but like in the car one time too he only punched me like my jaw hurts but he doesn’t leave scars or bruises”

11:39-11:55

Complainant: “But he showed me a police report from like two days ago supposedly –okay but I want to know about this police report. Supposedly he said he called the cops on himself and they said they said they couldn’t do anything unless I came forward. I want to know if that police report is true?”

38:10-38:18

Complainant: “Well I had, they called me and I told them you know what he’s in jail, don’t worry about it. Like he was in jail for something else so this one I’m going through.”

32:07-32:16

Complainant: “ I just feel like if I leave he’s gonna, well not right now cause he’s going to jail but he’ll probably try to break in again when I’m at work or something. ”

II.

Statements made by Officers contain inadmissible hearsay.

The inadmissible statements are made in the body camera videos for officers

If the prosecutor is allowed to present and publish the aforementioned videotape in its entirety, ordinary objections during the course of trial, even sustained and including proper instructions to the jury, will not remove the harmful effect of same in view of their highly prejudicial content.

.

See Fischer v. State, 252 S.W.3d 375, 376 (Tex. Crim. App. 2008) (holding that law enforcement officer's factual observations of scene of crime are not admissible hearsay as a present sense impression and distinguishing it from a case in which an officer described the suspect's conduct during pursuit).

10:57-12:36

Inadmissible Statement

Officer S: “Of course, we ran your history when we came over here and one of the first things that pops up is that you run you know. I don’t mind running on my off duty but I hate running like this man so you know.”

Defendant: “No uh well I don’t run that was before when I lost my marriage”

Officer S:: “Okay”

Defendant: “you know I went on a high speed chase cause I didn’t have nothing to lose. It wasn’t even a high speed chase it was from downtown to my house and 10mph, they ended up dismissing it and then they dismissed it as a felony and they put it as a misdemeanor well my lawyer failed to tell me so they had it as a sealed case so then it opened up into a warrant for my arrest for alluding a police officer”

Officer S: “really?”

Defendant: “it wasn’t eluding a police officer like running from a cop”

Officer S: “right not evading”

Defendant: “it was it was not showing up in court cause it was a sealed case. So”

Officer S: “wow. So they originally filed eluding in a vehicle and then it came back as uh as uh”

Defendant: “as dismiss as uh they dropped it as a misdemeanor because”

Officer S: “yeah as evading okay, okay”

Defendant: “they saw the camera and he was only

Officer S: “Okay”

Defendant: “and they got me for evading arrest in a motor vehicle”

Officer S: “okay”

Defendant: “so from there they dropped it to a misdemeanor and my lawyer was like no its dismissed you don’t have to go to court anymore so then two months later I call and im like what’s going on. I got a letter in the mail that I have a warrant for eluding a police officer. Well its because I didn’t show up to court and then long story short I end up going in for that and got it time served and I mean I have no problem”

Officer S: “Okay”

Defendant: “I don’t I don’t run from the cops cause I don’t I mean if something’s wrong, if I did something wrong then I have to pay but I mean I don’t run from the cops cause it doesn’t pay man all it does it prolong it and all im wanting is all my stuff so I can at least move to my dads”

18:26-19:45

Officer S: “O1: yeah yeah it doesn’t say much more than that it just says the eluding “

Defendant: “yeah I don’t know why, it’s missing a court date and you can even investigate or whatever its missing a court date”

Officer S: “Yeah they only give us limited information so it only pops up these little three liners”

Defendant: “:and I was trying to get it all sealed, I need to get a lawyer to get it all sealed from employers cause they see that and or to go get an apartment or somewhere, they see that and they’re like oh no”

Officer S: “Yeah”

Defendant: “its not bad it looks bad but”

Officer S: “that happened to one of my ex wives relatives he uh had a robbery and he uh did a deferred adjudication at 17 years of age. Deferred is guilty and so uh yeah I had to write a letter to the realtor board of San Antonio to say hey you know good guy, all that stuff cause he had a felony on him and that lawyer didn’t say hey by the way deferred means guilty like you’re saying okay I did it you’re just not going to do anything to me”

Defendant: “Yeah”

Officer S: “so yeah I feel you on that whole lawyer thing they don’t always explain everything you know whatever happened with your lawyer that should be on them”

Defendant: “yeah well it was a court appointed and then I offered to pay her and I said forget it let me take of this on my own”

Officer S: “paperwork filing issue but now you get slammed with it.”

31:41-31:50

Officer S: “Just like with him and the uh the fact that he’s been arrested. I told him yeah you know we are going to put handcuffs cause you’re a runner as far as we know.”

40:48-40:56

Officer S: “Cause if you didn’t, that’s always the intent to trigger like the investigation to press charges. Cause if you didn’t that might be part of the reasin why you are still held up on the other case.:

X 29:16-29:20

Officer O: “The four years they’ve haad several run ins with us over here.”

53:12-54:54

Inadmissible Statement

Officer O: “So do you have another son? Yeah its not with her right? Okay. So you do have justice of the peace warrants as well.

Defendant: warrant?

Officer O: Failure to go to school. I’m guessing that’s for your son?

Defendant: Failure to go to school?

Officer O: Yeah that’s what I says. Failure to go to school? To attend. Yes so if your child is kept out of school or stuff like that.

Defendant: My son is 6 years old and his mom works so I doubt it.

Officer O: Okay so ultimately we don’t arrest on justice of the peace warrants, I’m just letting you know you have those two warrants. Okay well its just popping up with two. Did you use to live off Revina.

Defendant: yeah when I was like 18 years old

Officer O: Oh okay. Yeah this was in 2003, so maybe its for you. Did you

Defendant: I dropped out of school and then went back to get my GED.

Officer O: oh yeah. I mean you can take it up with them. Its not something we usually arrest on or anything like that. Yeah so its like Bandera and Guilbeau. There’s like a bexar county office over there for more information.

29:14-29:32

Officer T: “Uh the good news is the officers felt that is was imminent danger if he stays here with you. That’s why he is going in right now. Okay, but in order for you to continue the process you want to keep him in jail then you need to follow up with the detective after.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfullyrequests that this Court instruct the State to redact the above listed inadmissible statements made during the police officer video recordings. Respectfully submitted: /s/

CERTIFICATE OF SERVICE

I hereby certify that a copy of Defendant’s Motion To Redact Inadmissible Portions of Audio on Police Officer Video Recordings has been delivered to the Bexar County District Attorney's Office on this the ________day of ________________, 2021. /s/

No:

STATE OF TEXAS § IN THE COUNTY COURT

V. § AT LAW NUMBER § BEXAR COUNTY, TEXAS

ORDER

On this the day of , 2021, came on to be considered Defendant's Motion To Redact Inadmissible Portions of Audio on Police Officer Video Recordings. (GRANTED) (DENIED). SIGNED on the date set forth above.

JUDGE PRESIDING

Criminal Defense Lawyers Project

15th Annual Jolly Roger

December 09, 2022 Springhill Suites Denton Denton, TX

Topic: Technology in the Courtroom

Speaker: Andrew J. Decker

Daniel, Moore, Evans, Biggs, Decker, and Smid (not a partnership) 301 Commerce Street City Center Tower II Suite 2001 Fort Worth, Texas 76102 817.332.3822 phone andrew@andrewdeckerlaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Technology in the Courtroom 15th Annual Jolly Roger Seminar Denton, Texas December 2022

Andrew J. Decker

Daniel, Moore, Evans, Biggs, Decker, and Smid (not a partnership) 817 332 3822 andrew@andrewdeckerlaw.com 301 Commerce Street City Center Tower II Suite 2001 Fort Worth, Texas 76102

Technology in the Courtroom

Definitions

Technology: applied science; a scientific method of achieving a practical purpose; the totality of means employed to provide objects necessary for human substance and comfort Websters Ninth Collegiate Dictionary

Technology: the practical application of knowledge especially in a particular area; the application of scientific knowledge for practical purposes, especially in industry “advances in computer technology” the internet generally

Technology is the application of knowledge to reach practical goals in a specifiable and reproducible way. Wikipedia quote an article from Princeton Press

Opening Thoughts

Using these definitions, technology could be anything in the courtroom. Technology is the air conditioning system, the electronics, and my need for a more comfortable chair. It is the ballpoint pen, first patented in 1888, you use to take notes and the pad on which you take said notes. Obviously, it includes the more advanced technological pieces like the laptop, the electric lights, first patented in 1880, tablet, the internet, and so much more Yes, your pen was developed after the first lightbulb.

All of these are tools we use to reach a practical goal in a specifiable and reproducible way. Our goal is to defend our clients to the best of our abilities.

Just that I can write this paper on a computer which will allow me to save my notes, walk away, and come back minutes, hours, and days later to the same information is a technological miracle. And then I can edit the whole thing without having to rewrite or retype! Technology allows for me to adjust my desk from sitting to standing and while working on said computer. For the whole of human existence, some 200,000 years, we have been moving forward technologically. We have been able to use a word processor for less than 50 years. The first personal computer with a word processor became available in 1976.

The problem with technology in our work and our courtrooms is not the availability of such magical devices. The problem is our fear of the ever-changing landscape of

technology available to us. We learn one system and it is immediately outdated. The advances happen so quickly that we feel we cannot keep up.

Currently, I have seven (7) different video players on my computer to I can view video evidence. Discovery is downloaded from multiple systems, five (5) that I can recall using recently, and still hand delivered on CD, DVD, Blu ray, USB, and actual paper. To do this job of criminal defense means we become technological gurus whether we want to or not.

We have hours of videos, hundreds of pages of reports, and terabyte hard drives. We use technology daily. We stream much of our TV. We plug in our cars. Our watches tell us to breathe. It is not just in the courtroom. Technology is in our lives.

Working With Your Client

Obviously using technology for the best outcome for our client begins long before we ever appear in a courtroom. Thanks to the pandemic everyone now is more comfortable with Facetime, Zoom, Teams, and the myriad of other options for video conferencing. If a group of women in their 70’s can figure out Zoom for their Bible Study and Prayer group, our clients are also able to use such technology for meetings.

Practice Tip #1: When entering into a video conference, make sure you are identified with your name. Not as Andrew’s iPad. Not as “Unknown.” I did this. The court almost refused my entrance into my client’s plea as a participant because I was not on my normal computer and I was on zoom as “unknown.” Thankfully, I had to court coordinator’s cellphone and was able to text her.

If your client is unable to meet with you because of distance or time, get them on a web call with video conferencing. You can easily discuss the evidence and their concerns on a video call and be able to see their reactions. Body language matters. The video call is not as good as meeting in person, but it is much better than just meeting on the phone.

Practice Tip #2: Make sure you know how to turn or off your video and microphone for internet calls and video conferencing. We do not need to see everything. And sometimes you need to be able to mute yourself. Enter the call with your microphone on mute.

39.14 and Evidence Sharing

CCP 39.14(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness's own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver's license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this article, the defendant may not be the agent for the attorney representing the defendant.

Do not let your client view evidence remotely via screensharing. It is too easy for them to take a picture of your screen or a screenshot of the evidence without your knowledge. While you as the attorney would not technically be giving them a copy of the information provided as discovery, if a problem arose down the line, you would likely be answered to a judge or the Bar regarding evidence provided under 39.14 which ended up in the hands a defendant.

When on the phone or video call with your client, be aware of other persons who may be listening. You are speaking with your client. Listening may be momma, boyfriend, IP, the friend who knows more about the law then you. If you think other people are listening in and they are not identified and known to you, advise your client that you will speak with them at another time. This is to protect your client’s rights of attorney client privilege. Confidentiality and privilege for the attorney and client is broken if other people can hear what the client is saying and the discussion being had.

Thanks to laptops and tablets we can more easily take video discovery to a client who is sitting in the county jail. Sometime all they need to see is about 2 minutes for them to agree, “yeah, it was me.” It also allows the client to be able to explain what we are seeing and NOT seeing in the video.

Use the technology available to connect with your clients and show them you care about them. This can include emails. At the beginning of Covid I set up an email

series that went out to clients. It was mostly motivational and self-help oriented, but it was a way to keep connected to them while we were all in lock down and no one was appearing in person. Use a texting app so you can reach clients without using your personal cellphone number. Use VOIP so you can have your office phone with you in your pocket all the time.

Practice Tip #3: With all this connectivity be sure to TURN IT OFF. You have a right to an evening at home or with friends. You do not need to be on call 24/7. Disconnect and unplug for your personal well being. Do not return the call until Monday. BREATHE. You need to connect with your client; you need not be run in the ground connecting with your client.

Duty And The Ethical Portion Of Our Presentation

It is our duty to represent out clients. The 6th amendment demands it. We have to effectively represent out clients.

Rule 1.01 from TX Disciplinary Rules of Professional Conduct https://www.txcourts.gov/media/1443638/199016.pdf

Comment 8: Maintaining Competence: “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.” February 26, 2019 (emphasis mine).

If we do not know how to use relevant technology, we may be ineffective in best representing our clients. While our inability to engage with relevant technology is unlikely to reach the level of Strickland, we will not be as fully effective as our duty calls us to be. To be clear Strickland sets a fairly low bar to be considered effective under the constitution. To be found ineffective as counsel requires that the attorney was objectively deficient AND that a competent attorney would have a reasonable probability to achieve a different outcome. Strickland v. Washington, 466 U.S. 668 (1984).

We can do better than the minimum. Be more than proficient. Never walk away from a trial questioning in your heart that you did not do your very best for your client. I had a coach tell me, “I do not care if we win. I care that you gave it everything you had in the time we had to play the game.”

In The Courtroom

The most obvious time you will use technology should be in jury selection. I always have a PowerPoint ready. Yes, I use Powerpoint. It is not web based. I do not have to worry if the internet goes down. I have the presentation on my laptop and on a USB drive. I have it on the USB because many courtrooms have a smart board or some other courtroom based system that simply allows me to plug in a USB and go from there.

I bring my own remote. I know the buttons and the controls. It is familiar. A prosecutor can refuse to let the defense use the State’s remote. Do not be the attorney who has to keep going to her computer to push the button for the next slide. And nothing is more interruptive to a presentation than “next slide” being repeated over and over.

Practice Tip #4: Go to the courtroom and see what presentation systems they have. Smart board, projector, televisions. How do you connect to the system? Will you need an adaptor to connect your computer to their system? Who owns the system? Do not show up and find out the projector belongs to the District Attorney and they are not going to share.

Practice Tip #5: Know your presentation. You have to know what is coming on the next slide and three slides later. When a potential jury member pulls you beyond the current slide or issue, you have to be able to quickly move with them. You need also to be able to come back to cover relevant material. Further, if you say, “We will cover that later” and the material is not further down in your presentation, the jurors will think you are not being truthful.

Do not use any picture which a juror can tell is copyrighted or watermarked. For example:

I have seen prosecutors use images that are copyrighted or contain a watermark. It is lazy. It may be illegal. And again, if the jurors realize that you are shortcutting on something as simple as this, they may hold it against you later.

Technology Is A Tool

A slick presentation does not make you a better attorney. It makes you a technical magician. Your presentation is a tool to help you tell your story. The presentation is NOT your story.

You may be better served at any moment by stepping away from the latest gadget or technology. You must be able to read the room and know your situation. Technology is a tool to convey your message. Technology is NOT your message.

You must practice with the technology you are going to use in the courtroom. While in front of a jury, trying to cross examine a witness, is not a time to figure out how the DVD works on the computer that you are using in the courtroom. Yes, juries know that your fumbling around is not evidence. Your fumbling around is not professional and it distracts from the message you are trying to convey. Refer to the

Rules of Professional Conduct above and being proficient with the relevant technology.

Practice Tip #6: PRACTICE. PRACTICE. PRACTICE.

One of the huge benefits of preparing a jury selection PowerPoint and practicing that PowerPoint is you have to do the work. You cannot just “wing-it” or simply “shoot from the hip.” You have had to spend time thinking about what you want to say, how you want to say it, and what information you want to draw out of the jury pool to help you find the best possible jurors for your client on this case.

Using technology as the message is problematic. Having technology become your stumbling block is tragic. You have to know the system you are using and practice with it.

Conclusion

For 200,000 years we have been making advances in technology. Every day more things are being created and more ways to share information are being developed. I hope you develop the most comfortable courtroom chair, you are the master of your technological universe, and that all your trials are winners.

You do this and you will reach your goals in specifiable and reproducible ways.

Criminal Defense Lawyers Project

15th Annual Jolly Roger

December 09, 2022 Springhill Suites Denton Denton, TX

Topic: Client Relationships and Communications

Speaker: Paul Tu

Arrington, Tu Burnett 200 South 10th Street Richmond, TX 77469 713.774.2800 phone 713.774.2808 fax paul@atblawfirm.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CLIENT RELATIONSHIPS & COMMUNICATIONS

ADVERTISING OR SOLICITATION

An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.1

A “solicitation communication” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter.2

The two definitions by the Texas Disciplinary Rules of Profession Conduct are very similar but turn on who the communication is directed and whether the lawyer’s advice or services are sought. An advertisement is communicated to the general public and a solicitation is directed at a specific person, and furthermore, the specific person did not seek the attorney’s advice or services.

Based on this distinction, I believe any social media posts, such as Facebook or Instagram falls under the definition of advertisement. These communications are sent generally to the users’ social network or general public via the media platform. However, text message to individual cellular phone by its nature is a communication to a specific person. The State Bar of Texas Committee on Professional Ethics has not published an opinion on this specific form of communication. However, Comment 10 of Rule 7.03 does require text message or messages on social media to include “ADVERTISEMENT” as the first word in the message.3 In my opinion, text messages are a solicitation or prohibited communication and therefore should not be used in any lawyer’s marketing strategy.

CONTRACTS IN GENERAL

Generally, a contract should be a legally binding agreement entered into providing for an exchange of defined performances. The structure and language of the contract should state plainly and simply to what each party is agreeing. Courts are now encouraging the use of plain language in a contract. However, the language used in the contract by its plain meaning should create sufficient legal effect to bind all parties to its terms and cover any reasonably foreseeable circumstance that might frustrate the execution of the contract by any party. The following is a review of an employment contract for legal services used by the law firm of Arrington, Tu & Burnett. L.L.P

TITLE AND PREAMBLE

The Title should accurately describe the substance and overall goal of the contract. Here the title is simply “Employment Contract for Legal Services in State of Texas vs. Client’s name.” A more detailed statement as to the specific services that will be rendered will be outlined later on in the contract.

The Preamble specifically identifies the parties and what service is going to be provided. In this contract the client is identified by name. If a third party is paying the legal fees associated with your representation, this is a good opportunity to remind them of your ethi cal duties to the client and not the

1 Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(1)

2 Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(2)

3 Tex. Disciplinary R. Prof. Conduct, Rule 7.03.

third party.4 The preamble goes on to describe the Cause Number of the case, the county in which the case is pending, and the title of the offense. 5 This is important, especially for clients that maybe enhanced to higher criminal charges or new allegations after being released on bond. Some clients may believe that their new charges are covered by the original contract. The attorney always has the option to incorporate any new charges the client incurs, additional charges stemming from the same incident, or an upgrade in the level of offense into a new contract encompassing these changes. If executing a new contract, describing all the cases to be covered, incorporating a merger clause, and stating the new fee agreement is recommended.

DISCLAIMER

It should be conveyed to the Client that the court system is adversarial, and no promises or guarantees can be made about any particular outcome. In the case of the example contract, this is accomplished by informing the Client that, “We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control.”

FEE AGREEMENT

The Fee Agreement section will usually make up the bulk of the contract and will contain much more specific language than other areas of the contract. This is necessary to ensure that the Client fully understands how much they are paying in the fee, how that fee is earned, and avoid any disputes over either of those aspects in the future. Attorneys have a lot of latitude in how their fees are structured. The American Bar Association’s Model Code of Professional Responsibility provides guidelines for determining a reasonable fee. 6 While the ABA has focused on the reasonableness of the fee, the mechanism of how that fee is collected has been largely left up to the individual attorney.

This contract states that the fee contemplates the attorney’s investigation into the facts and laws pertaining to this case and attempts at resolving the case without the necessity of a trial. How an attorney structures their fee is up to the attorney. Whether the fee be flat, hourly, or contingent, this should be clearly stated in the Fee Agreement clause. The example contract incorporates a fixed or flat fee structure.

This contract specifically sets forth for the client how the legal fee is earned. In this particular agreement 50% of the total fee is earned at the signing of the contract and communication with the attorney for the government. This communication can include filing a Notice of Appearance with the Court and prosecutor’s office or even a phone call or email to the attorney. Another 25% of the total fee is earned upon the first court appearance. The final 25% of the fee is earned when the prosecution’s offer is either accepted or rejected by the client. If the Client accepts the offer from the prosecution, the case is disposed and the entire fee is earned. If the Client rejects the prosecution’s offer, the case will proceed to trial. 7 In any case, 100% of the fee will be earned upon a dismissal or rejection of the allegations against the Client.

While the attorney is free to negotiate any reasonable fee arrangement within the bounds of ethics and the law, a policy of at least one half the fee is the best recommended practice. Should the attorney negotiate for some other fee arrangement such as barter or trade, each item should be expressly listed with a reasonable descriptor such as make, model, serial number, condition, and assigned a value agreed

4 Tex. Disciplinary R. Prof. Conduct, Rule 1.06

5 It is also recommended that the level of offense be included in the case description. Driving While Intoxicated can take on several levels of offense depending on the circumstances of the case.

6 Model Code of Professional Responsibility DR 2-106 (1981).

7 Trial fees are not included in the original contract.

to by the attorney and the Client. 8 This will avoid confusion later should the attorney withdraw or be discharged by the Client. In that instance the contract should include the mechanism for returning any unearned fee in the item. 9

TRIAL FEE

The Trial Fee clause expressly informs the client that should the Client fail to accept the plea bargain of the District Attorney’s Office and the Client’s case is set for trial, the Client will be required to pay an additional advanced fee for trial and trial preparation which will be determined based upon the type of trial the Client requests. This is to clearly and expressly let the Client know that this contract does not include a trial fee. Again, the attorney is free to negotiate the method in which they collect any reasonable fee. However, due to the time and attention required to prepare for a trial it is recommended that the trial fee be paid in full 30 days after the case is placed on the court’s trial docket.

The example contract here outlines how the trial fee is earned. 50% of the trail fee is earned upon the date that the case reaches its first reset on the trial docket. The other 50% of the fee is earned upon commencement of the trial. The contract goes onto define what constitutes commencement of the trial; start of jury selection, swearing of the first witness, or the start of argument in motions preceding trail. This section also explains that appeals and retrials are not included in the trial fee. The trial fee should be detailed in a separate contract.

ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION

Unique to the criminal charge of DWI is that a driver’s license suspension proceeding can accompany it. In the example DWI contract here, the quoted fee includes the driver’s license suspension hearing. However, the contract expressly states that any appeals of the administrative law judge’s decision are not included in the quoted fee.

EXPENSES

The expenses clause simply informs the Client of additional expenses that are not covered by the contract. These additional expenses can cover everything from fax, copies, travel expenses, and postage to lodging, fines, polygraph, and medical examinations. It is up to the individual attorney to decide what expenses are covered by the fee and which ones the client will be billed directly to Client. The list does not have to be exhaustive, but robust enough to include reasonably expected expenses, and when available the cost of those expenses up front.

POWER OF ATTORNEY

The Power of Attorney clause is the heart of the employment contract for legal services. This clause should state simply that the Client authorizes and empowers the attorney to take the reasonably necessary steps to resolve the case. This allows the attorney to negotiate with the state on behalf of the Client.

FEES NOT COVERED

This section expressly covers fees that are not covered by this contract that the client may incur. These fees can include: motions subsequent to the entry of a plea in the case; motions to adjudicate, revoke, or modify probation conditions; petitions for expunction or non-disclosure; appeals or retrials of the case;

8 Even if the item is kept as collateral, it should be expressly itemized, sufficiently described, and given an agreed value.

9 The contract should include whether the Client is returned the item or the monetary equivalent of the unearned fee.

or any other proceeding, motion or action not specifically identified by or covered by this contract. It is up to the individual attorney to include or exclude any of these services in the original contract. However, whether an attorney wishes to include or exclude any service covered by the contract, it should be explained explicitly in writing to the Client. If these services are specifically excluded, it is recommended that a separate contract be drawn up for those services.

OCCUPATIONAL DRIVER’S LICENSE

Because of the potential of a driver’s license suspension hearing with a DWI charge, this contract also has a provision that covers the Occupational Driver’s License hearing. This section advises the client that they have the option to obtain an Occupational Driver’s License after a suspension decision by the SOAH. The Occupational Driver’s License fee is not included in the original contract. The Occupational Driver’s License should be a in a separate contract or be made as an amendment to the original contact.

CONCLUSION

It is important for an attorney to have a contract for employment that expressly and plainly sets out exactly what the client is hiring the attorney for and contain sufficient language to protect both the attorney and client from any confusion or misinterpretation. This language does not necessarily need to be legally formalistic but does need to be specific enough to preclude differing interpretations.

200 SOUTH TENTH STREET

FAX : (713) 774 2808

TEL: (713) 774 2800 RICHMOND, TX 77469

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION

November 28, 2022

Pappy Van Winkle 123 Weller Way Buffalo Trace, TX

RE: EMPLOYMENT CONTRACT FOR LEGAL SERVICES IN STATE OF TEXAS VS. PAPPY VAN WINKLE

Dear Mr. Van Winkle:

This letter is to describe the terms and conditions under which Arrington, Tu & Burnett, hereafter referred to as the Firm, is offering to represent Pappy Van Winkle hereafter referred to as Client, in connection with the following:



Arrest of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456.



Suspension of Pappy Van Winkle’s Driver License because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

This letter is a legal contract, and the terms and conditions of our agreement are described in some detail. This letter not only establishes the terms of our contract with you, but it will also help to prevent any misunderstandings. When you sign and return a copy of this letter, you are agreeing to the terms and conditions of representation which are described in this letter.

We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control. We make no express warranties concerning this transaction, and hereby expressly disclaim any implied warranties concerning it. It is expressly understood and agreed that no other representations have been made to you except those set out in this letter.

Client agrees to keep our office apprised of your home and cellular phone numbers and email address so that we can communicate with you during the day or evening hours. You agree to

promptly inform us of all changes in your contact information as soon as such changes occur.

You agree to attend all court dates, court hearing, and other official appearances in connection with this matter. You further agree to immediately inform the Firm of any event that will prevent you from attending scheduled court dates or appearances.

The Firm will represent Client by investigating the law and facts, by preparing for all hearings, negotiating with attorney for the Government, and preparing for trial if necessary.

If the matter requires negotiation, the Firm will negotiate with the prosecutor's office on your behalf. We will not accept a plea bargain without your approval. Do not communicate with any of the alleged victims, witnesses or attorneys in the case without our involvement.

The Firm and Client have agreed upon a fee of $100,000 for the representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated. Client understands that the funds shall be deposited into the Firm’s trust account. 50% of the total fee will be moved into the Firm’s operating account upon signing this contract and the Firm’s first communication with the attorney for the government. An additional 25% of the fee will be moved into the Firm operating account upon the first court appearance, and the final 25% of the total fee will be earned and moved onto the operating account upon Client either accepting or reject the prosecutor’s final offer. 100% of the fee is earned by the Firm upon dismissal, rejection or No Bill of the allegations against Client. If the final offer is reject and the court set a trial date, then 100% of the trial fee is to be paid and deposited into the Firm’s operating account after filing of any pre-trial motions or 30 days from the date the case is set for trial, whichever comes first. Trial Fees are earned as follows; (1) 50% upon the date that the case is reset for Trial not the actual Trial date. (2) 50% upon commencement of the trial such as start of jury selection, swearing of the first witness or the start of argument of counsel in motion settings (This does not include appeals or retrials which require additional advance fees.)

The attached Exhibit "A" shows those items which are specifically included in, and those items which are specifically excluded from, the flat fee agreement.

If this contract is terminated by either party for any reason, then a rate of $350.00 per hour shall be calculated for all work perform from the acceptance date to the termination date of the contract. The attorney shall provide an invoice of all work performed within 60 days of the termination of the contract.

The attorney's fees do not include photocopying charges, long distance telephone charges, travel expenses, fees for investigators and experts, witness fees, costs of preparing a reporter's record, or other court costs. These costs will be treated as additional expenses and will be included in our bill.

You agree to pay those reasonable expenses. If payments are not made promptly to us as requested, we reserve the right to immediately withdraw from representing you in any and all matters that the law firm is handling. You agree to the withdrawal.

This Agreement is performable in Fort Bend County, Texas. All monies owed hereunder are to be paid at our office in Fort Bend County, Texas. Jurisdiction and venue of any dispute arising hereunder are also performable in Fort Bend County, Texas.

Should it become necessary for the firm to collect any unpaid balance or debt owed to the firm in connection with this case, you agree to pay any additional fees associated with the collection, including but not limited to employment of an outside collection agency, attorney’s fees and court cost.

You authorize us with your power of attorney to sign court or other legal documents which may be required in the course of the case. Also, you also will designate the Firm as your attorneyat-law and in-fact to act in your name, sign legal pleadings on your behalf and to perform the acts necessary and appropriate to affect the above described legal representation.

Please sign in the space provided below so that we may begin working on your behalf. If you have any questions concerning our fees or this legal matter, please call me at (713) 774-2800.

SIGNED on this day of April 2021. Pappy Van Winkle

SIGNED on this day of April 2021.

Paul F. Tu Arrington, Tu & Burnett 19901 Southwest Sugar Land, Texas 77479 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION

EXHIBIT "A"

Items Included in a Flat Fee Arrangement: 

Preparation, investigation, negotiation, and representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456. 

Preparation, investigation, negotiation, and representation of Pappy Van Winkle’s suspension of driver license because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

Items Not Included in a Flat Fee:



Any Bench/Jury trial, Post-trial motions, appeals, motion for early termination, or petitions for non-disclosures.





Any Petition for Occupational Driver License

The firm has agreed to a jury trial fee of $6,000 to $12,000.

SIGNED on this day of December 2021. Pappy Van Winkle

SIGNED on this day of December 2021.

Paul F. Tu Arrington, Tu & Burnett 19901 Southwest Sugar Land, Texas 77479 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

About TCDLA

TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of-the-art organization, providing assistance, support, and continuing education to its members. TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,800 members are elite criminal defense professionals in Texas. TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 9,000 people continuing their educational opportunities each year.

Join today and become part of a long history of providing services and assistance in the great state of Texas, while accessing valuable resources, services, support, and discounts on seminars, travel, and technology.

How to Apply:

Submit an application online at tcdla.com Email application to mduarte@tcdla.com

Mail application to: Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive Austin, TX 78736

TCDLA Benefits

See the full list at tcdla.com

Resources:

• Networking opportunities with the best criminal defense lawyers in Texas

• Strike Force

• TCDLA APP includes criminal codes, statutes, and case law

• Online Resources, a library including motions, transcripts, briefs, seminars, & more

• Voice for the Defense magazine, the only statewide magazine written specifically for criminal defense lawyers

• Listserv connecting our community on important issues

• Significant Decisions Report emailed weekly

• Legislature lobbyists advocating on behalf of Members

• Expert list for experts in a multitude of practice areas

• Moot Court provided on request

Services:

• Ethics Hotline the only anonymous ethics hotline

• Membership Directory provided annually and updated online daily • TCDLA logo for websites and social media • Lawyer Locator member publication

Savings: • Continuing Legal Education seminars & legal publications • LawPay • Lenovo • Professional Liability Insurance • GAP/Disability Insurance • Brooks Brothers Corporate Membership Program • La Quinta Inn & Suites • Enterprise Car Rental

Texas Criminal Defense Lawyers Association

(Effective 4/2019)

Membership Fees Get Involved: Committees/Lawyer Locator

$_______ $100 First-time ($100 for each of the first two years)

$_______ $180 Regular member

$_______ $60 Public defender (must be a PD employee)

$_______ $330 Voluntary sustaining (required for TCDLA officers and directors)

$_______ $100 TCDLA past president

$_______ $80 Distinguished member (70+ years old)

$_______ $20 Law student (not auto-renew)

$_______ $80 Affiliate (: q Paralegal q Investigator q Expert q Other (law professors & others approved by board) I prefer not to participate in auto-renewal

$_______ Total

q I’m interested in serving on a committee—send information.

q Send me a Board application.

q Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

Payment Method

For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows:

• This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

Type Name to Authorize Payment Date

q Checking Account

Name of Institution* Financial Institution 9-Digit Routing # Account # q Credit card (Visa, Mastercard, Amex, or Discover)

Credit Card Number

Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033. Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business

2022–2023

TCDLA Committee Expression of Interest

TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2022–2023 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member:

1. Member of TCDLA.

2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee. 3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings. 5. Members are expected to review and respond to email requests in a timely fashion. 6. Committee Chairs are expected to prepare written reports for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda. Committee members will assist chairs in the preparation of reports.

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2022.

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney Pledge Options

Choose a fund that’s near and dear to you:

For the ASSOCIATE FELLOWS FUND ($750) FELLOWS FUND ($1500) SUPER FELLOWS FUND ($3000) In one lump sum Quarterly Monthly In ____ payments of $________. I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________ Financial CLE SCHOLARSHIPS $___________ For the COMANCHE CLUB in the amount of $_________ For CHRISTINE S. CHENG MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________ BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Texas Criminal Defense Lawyers Educational Institute Super Fellows | Fellows | Associate Fellows Pledge Form

About Super Fellows , Fellows & Associate Fellows

TCDLEI Bylaws, Art. III, § 3. Super Fellows, Fellows, and Associate Fellows

A. Super Fellow—A member of the Institute becomes eligible for election as a Super Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $3,000 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Super Fellow.

B. Fellow—A member of the Institute becomes eligible for election as a Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $1,500 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Fellow.

C. Associate Fellow—A member of the Institute becomes eligible for election as an Associate Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $750 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as an Associate Fellow.

Pledge

Pledge Options

q

Associate Fellow—$750 q Fellow—$1,500 q Super Fellow—$3,000*

I, , pledge to contribute $ to TCDLEI.

Payment Options

q Enclosed is the full pledge amount

Associate Fellow q 3 payments of $250 q monthly

q Scheduled payments ( select one): q every other month

Fellow 1-year plan—$1,500 Super Fellow 1-year plan Super Fellow 2-year plan

q 3 payments of $500 (quarterly) q 3 payments of $1,000 (quarterly) q 6 payments of $500 (quarterly) q 5 payments of $300 (every other month) q 5 payments of $600 (every other month) q 10 payments of $300 (every other month) q 12 payments of $125 (monthly) q 12 payments of $250 (monthly) q 24 payments of $125 (monthly)

*If you are currently a TCDLEI Fellow, a second contribution of $1,500 will make you a Super Fellow.