2019

VOLUME 2

CROSSING
THE RUBICON
7 E
PAG
 WHAT’S INSIDE 2019, VOLUME 3
STAY FROM THE EDITOR
UP TO DATE I am proud of the last few issues of The Defender. We hope the articles
are helping you with your practice and providing some interesting
WITH HCCLA EVENTS reading. If you would like to contribute an article, please contact me at
12.06.19 :: DONALD DAVIS SEMINAR
6.0 CLE (INCL 3.0 ETHICS)
1ST COURT OF APPEALS
rpeltonlawyer1@aol.com. We will try to include it in a future issue.

In this issue…
CLE
FROM THE EDITOR 2
301 FANNIN Joseph Ruiz writes about the DWI “Disconnect Defense”, while Jake Gatlin
HOUSTON TEXAS 77002

02.06.20 :: 2ND ANNUAL HOUSTON

takes a clinical look at substance use disorders and treatment options.
Chris Hesse discusses the (hopefully) rare occasion of representing a
lawyer on a criminal case.
4 OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS
DWI ALLSTARS
Judith Snively also gives us a District Clerk update. Danny Easterling

5
7.75 CLE (INCL 0.5 ETHICS) A WORD FROM
recaps new changes in DWI and Marijuana laws, and David Mitcham
STUDIO MOVIE GRILL YOUR PRESIDENT
explains new DA policies for prosecuting Marijuana cases. While Kim
822 TOWN & COUNTRY BLVD BY NEAL DAVIS
HOUSTON TEXAS 77024 Ogg’s administration has been transparent about new policies, getting
discovery in a timely manner is far more critical. A lawyer cannot effectively HCCLA NEWS ROUND UP

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

The feature story by Robb Fickman highlights another important issue –

Visit the calendar at www.hccla.org
6 WELCOME NEW MEMBERS
FUTURE WARRIOR ANNOUNCEMENT
YOU'RE INVITED - HOLIDAY PARTY 2019
judicial misconduct. In Lonesome Dove, based on a cattle drive in the late CROSSING THE RUBICON
1800s, Woodrow Call who plays the role of Charles Goodnight exclaims,
“I HATE RUDE BEHAVIOR…I WON’T TOLERATE IT!” Robb’s article
outlines HCCLA’s history of dealing with bad judicial behavior.
HISTORY OF HCCLA JUDICIAL
MISCONDUCT COMPLAINTS
BY ROBB FICKMAN
7
12
There are many fine judges in Harris County. Unfortunately, some are
illegally revoking bonds, and others are not always patient, dignified and DEFENDING THE LAWYER CLIENT
courteous to our members as required by the Judicial Canons. Canon 3(B) BY D. CHRIS HESSE
(4) also holds judges responsible for the conduct of their court personnel.
In the military, if a soldier acted like some coordinators, they would be
placed on permanent KP (Kitchen Police) duty, peeling potatoes. There is
enough stress in this profession. Courtesy and mutual respect go a long
way. Remember the Bible says, “Be ye kind one to another.”
SUBSTANCE USE DISORDERS
CAUSES, CONDITIONS & TREATMENT
BY JAKE GATLIN, LCDC
17
19
If you find yourself having an issue with a judge or court staff, first consult PERSUADING JURORS TO ACCEPT
the HCCLA Judicial Ambassador to try to resolve the problem. You can A DISCONNECT DEFENSE
also notify a Board Member (see page 4). Document the problem and BY JOSEPH RUIZ
names of people involved. If the conduct continues, HCCLA can and will
take action, as noted in Robb Fickman’s article. PROFESSIONAL INVESTIGATORS
Finally, if you have an ethical question, call the HCCLA Ethics Hotline at
(713) 518-1738. All calls are confidential, and the hotline has proven to
be a great asset to our members. Remember: You can show your client a
HOW TO CHOOSE ONE AND
HOW TO USE ONE - EFFECTIVELY
BY JEFF WAX
26
copy of the offense report, but you may NOT give them a copy.

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

Happy Holidays!
29 NEW DWI LAWS
BY DANNY EASTERLING

OUR BRAVE NEW

HEMP/THC WORLD
BY DANNY EASTERLING
30
Robert Pelton is a Criminal Defense Lawyer with offices in Houston

31
HEMP, MARIHUANA AND THE HARRIS
and Abilene, Texas. Mr. Pelton has been named “Top Lawyer
for the People” and one of Marvin Zindler’s “Marvin’s Angels”
COUNTY DISTRICT ATTORNEY'S OFFICE
by H-Texas Magazine (2007). He was the personal lawyer for BY DAVID MITCHAM
Marvin Zindler for 31 years. He was also rated by Super Lawyers

33
(2014-18). Mr. Pelton is a Past President of HCCLA (1985-86), NEWS FROM THE
Founder and Chairman of HCCLA and TCDLA Ethics Committees
DISTRICT CLERK'S OFFICE
(since 2011), a recipient of the Jim Bowmer Award for Professionalism
from the Texas Bar College (2012); HCCLA Richard “Racehorse” Haynes Lifetime
BYJUDITH A. SNIVELY
Achievement Award (2016); TCDLA President’s Awards (2011-18); and a United States
Congress Proclamation from Congressman Ted Poe for his Zeal and Tenacious Defense
of his Clients (2016). In the 1980s, Robert Pelton and Allen Isbell created Docket Call,
which later became The Defender Magazine.
 4 C. ANTHONY FRILOUX 5
STUART KINARD
THE DEFENDER / 2019, VOLUME 3

2019, VOLUME 3 / THE DEFENDER

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

past presidents
DAVID R. BIRES

a word from your president

ROBERT PELTON
WOODY DENSEN
ADS & DISTRIBUTION
1971-2018 WILL GRAY

Neal Davis
ROBERT PELTON
CHRISTINA APPELT EDWARD A. MALLETT
DESIGN & LAYOUT CAROLYN GARCIA
BROCHURE BUILDERS
BRANDI DELOACH
JACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM CLYDE WILLIAMS
ROBERT PELTON “May you live in interesting times,” goes the Chinese Regarding the CJC, the building was opened in
CANDELARIO ELIZONDO curse. And this year has no doubt been interesting 1999. In the 20 years since, it has flooded twice
ALLEN C. ISBELL
for our Harris County criminal justice system. We and been closed twice. Post-Harvey, it has reached
have been waging a multi-front battle that will the point that the CJC lines are longer than ever.
DAVID MITCHAM
affect how we practice criminal law for many years, Defendants, lawyers, witnesses, and families
JIM E. LAVINE
if not decades, to come, with the Managed Assigned languish in the rain, heat, or cold for half an hour to
RICK BRASS
Counsel Program for court appointments and the up to an hour to get their day in court. It is an utter
MARY E. CONN
2019-2020 reconstruction of the Criminal Justice Center. disaster and not fixable, especially in the long term.
KENT A. SCHAFFER I have appointed a committee, which Chris Tritico
Hccla officers & board
Additionally, skirmishes abound involving several
DAN COGDELL member complaints about newly-elected judges’ is chairing, to endorse building a new Criminal
JIM SKELTON behavior, ranging from revoking bonds without Justice Center. We have successfully campaigned
GEORGE J. PARNHAM a hearing or due process to being disrespectful, to have criminal judges open the stairwells, but of
PRESIDENT BOARD OF DIRECTORS GARLAND D. MCINNIS unprofessional, and hostile towards our members. course that does not fix the larger problem.
NEAL DAVIS CORDT AKERS ROBERT A. MOEN
Regarding the Managed Assigned Counsel (MAC), Regarding judicial complaints, we will be notifying
MATT ALFORD LLOYD OLIVER
it will involve a central authority rather than judges
judges that we take seriously their unlawfully
PRESIDENT ELECT JIMMY ARDOIN DANNY EASTERLING appointing private lawyers to indigent defendants. revoking bonds without notice or a hearing. We are
MARK THIESSEN STACI BIGGAR WAYNE HILL The Texas Indigent Defense Commission (TIDC) in the process of drafting a resolution for the judges
LORI BOTELLO RICHARD FRANKOFF has voted to fund $2.9 million over several years so they know we mean business. We will demand
VICE-PRESIDENT CHRISTOPHER DOWNEY W. TROY MCKINNEY for the county courts to set up a MAC. No proposal them to stop engaging in the illegal activity. If the
JOE VINAS KATE FERRELL
CYNTHIA HENLEY was put forth for the district courts and none was judiciary’s illegal conduct continues, the HCCLA
GEMAYEL HAYNES
STANLEY G. SCHNEIDER Board will take action to stop it. We have done it
voted on, so there is no funding for them yet. It is not
SECRETARY NATHAN HENNIGAN
WENDELL A. ODOM, JR. before, as Robb Fickman explains in his article
clear whether district courts will reach a consensus
DAVID RYAN JORDAN LEWIS
ROBERT J. FICKMAN on a MAC. in this issue. This has included successfully filing
W. TROY MCKINNEY
PATRICK F. MCCANN complaints for illegally revoking bonds when a
TREASURER RAND MINTZER Two-thirds of the county’s 22 felony judges would
MARK BENNETT defendant did not have a lawyer. We will not hesitate
JUSTIN C HARRIS TODD OVERSTREET need to support a Managed Assigned Counsel
to file complaints again.
DAMON PARRISH II JOANNE MUSICK (MAC) proposal for those courts to join an amended
PAST PRESIDENT JED SILVERMAN NICOLE DEBORDE version of the grant. In September 2019, the It is an honor to represent the best criminal defense
DOUG MURPHY J. JULIO VELA EARL D. MUSICK Houston Chronicle contacted all the felony court bar in the United States. It is crucial that HCCLA
SARAH V. WOOD CHRISTOPHER L. TRITICO judges to poll their support for a MAC program. support our members so they can continue to be the
T.B. TODD DUPONT, II Seven said they did; the remaining 15 declined to best. To that end, rest assured your Board and I are
CARMEN M. ROE comment or did not respond. The TIDC seems to doing everything we can for you.
JOANNE MUSICK be open to many of the thoughts we have advanced
TYLER FLOOD as your representatives on the differences between
TUCKER GRAVES
felony and misdemeanor appointments.
 6 7
THE DEFENDER / 2019, VOLUME 3

2019, VOLUME 3 / THE DEFENDER

WELCOME P L E A S E J O I N U S AT T H E
2019 HCCLA

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

DECEMBER 12TH
Ronnie Yeates

new student members

Bradley Haggard WHERE
Noah Andrew Feldman
Jacob Julio Vela

new affiliate members PREFACE

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

CONGR AT U L AT IO N S
Sponsor the Party! we realized that in some cases our informal
visits were not enough. We were going to have
to file judicial misconduct complaints against some
JOSEPH & VA N E SSA R U IZ
judges. What follows is a brief history of HCCLA’s judicial
Leonardo Jose Ruiz H C C L A . O R G / H O L I D AY misconduct complaints.
11.11.19 @ 8: 1 1 a m 7 lb s. 1 1 oz.
 8 9
THE DEFENDER / 2019, VOLUME 3
HCCLA’S FIRST JUDICIAL
MISCONDUCT COMPLAINT:
DISTRICT COURT JUDGE
JOAN CAMPBELL
In the mid-2000s, it was custom
and practice for District Courts to
illegally revoke bonds when clients
on bond had not hired counsel.
HCCLA leadership repeatedly talked
to the judiciary. We encouraged them
to stop the illegal bond revocations.
No amount of talking seemed to get
them to follow the law.
The HCCLA Board passed an
important resolution drafted by Troy
McKinney. The resolution warned
the District Courts that if they
continued to illegally revoke bonds,
HCCLA would take action. The
resolution was disseminated to all
District Court judges. HCCLA fairly
apprised the judiciary of the law and
warned that those who violated it
would face legal consequences.
On November 8, 2006, HCCLA filed
it first Judicial Misconduct Complaint
against then Judge Joan Campbell,
248th Criminal District Court.
As President of HCCLA, it was my
duty to sign and file the complaint
CONTINUED : CROSSING THE RUBICON
with the State Commission on
Judicial Conduct.
The case that gave rise to the
complaint against Campbell was
State of Texas v. Walker, Cause No.
1065585. The basis for the complaint
was her illegal revocation of
Walker’s bond.
Walker’s family made his $10,000
bond. On Friday, May 5, 2006,
Walker timely appeared in court.
Judge Campbell called Walker to the
bench. Upon learning that Walker
had not yet hired a lawyer, Judge
Campbell sua sponte raised Walker’s
bond to $100,000 and had him taken
into custody.
Walker had not violated any condition
of bond. To the contrary, Walker had
complied with all bond conditions.
Thus, there was no legal basis for
Judge Campbell to revoke Walker’s
bond. He spent the weekend in jail,
even though there was no legal basis
for him to be in custody.
On Monday, May 8, 2006, the late
Victor Blaine appeared in court on
behalf of Walker. Mr. Blaine sought
the reinstatement of Walker’s bond
and Walker’s immediate release from
illegal custody. That did not occur.
After revoking the bond, Campbell
went on vacation and left the visiting
judge no instructions. Walker
remained in jail for the next week,
notwithstanding the fact there was
no legal basis for his incarceration.
On Monday, May 15, 2006, Mr.
Blaine returned to court seeking
the release of Walker. By this time,
Campbell was back on the bench.
Upon request by Victor Blaine,
Campbell reinstated Walker’s
$10,000 bond and released him from
illegal confinement.
Walker was illegally confined in the
Harris County Jail from May 5-15,
2006. He spent 10 days in jail as the
direct result of Campbell’s illegal
revocation order. It is illegal for
judges to revoke a defendant’s bond
for not hiring a lawyer. Yet that is
precisely what Campbell did.
You might say the proof was in
the pudding. Between Campbell’s
illegal bond revocation on May 5th
and bond reinstatement on May
15th, only one thing happened -
Walker hired counsel. Campbell
reinstated the illegally revoked
bond only after Walker had complied
with Campbell’s illegally imposed
bond condition.
Three months later, Walker got some
good news. On August 25, 2006,
his case was dismissed. Thus, even
though the charges were dismissed,
Walker spent 10 days in the Harris
County Jail.
He spent 10 days in
jail, not because he
broke the law, but
because his judge
broke the law.
That is why HCCLA filed its first
judicial misconduct complaint
against Judge Joan Campbell.
In 2006, before the complaint was
filed, there was a ham-handed
attempt to bully HCCLA out of filing
it. I had an otherwise innocuous back
hall conversation with Judge George
Godwin, the former presiding judge
of the 174th Criminal District
Court. In the middle of a friendly
conversation, without any segue,
Godwin stated that any attack by
the defense bar on his brethren or
“sistren” of the judiciary, would be
viewed as an attack on all of them.
Godwin’s speech was soon dubbed
the “Judicial NATO Speech”.
HCCLA leadership concluded that the
speech was a not-so-subtle attempt
to bully HCCLA out of filling a
legitimate complaint.
That did not work. If anything,
Godwin’s comments confirmed our
deeply felt belief, that as lawyers we
were duty bound to stand up to judges
who engaged in unethical or illegal
actions. So we moved forward.
It is noteworthy to mention that
after the complaint was filed, in a
relatively short period, ALL district
court judges discontinued the long-
standing illegal practice of revoking
bond for not hiring counsel.
While it might not seem like a big
deal now, at the time, this was a
big step. HCCLA was founded in
1970. It took 36 years for HCCLA
to cross the Rubicon and file its first
complaint, sending a clear message
to the Harris County Judiciary:
Abuse of power by any member of
the Harris County Judiciary would
no longer go unanswered. HCCLA
would actively pursue judicial
misconduct complaints against
abusive judges.
THE JUDICIAL
MISCONDUCT
COMPLAINTS THAT
FOLLOWED
WOODY DENSON, VISITING
DISTRICT COURT JUDGE
In August 2007, HCCLA filed a
judicial misconduct complaint
against Judge Denson.
SHARON KELLER, COURT
OF CRIMINAL APPEALS
In October 2007, HCCLA filed
a judicial misconduct complaint
against Justice Sharon Keller. The
basis of the complaint was her
refusal to accept a last-minute death
penalty appeal. This complaint was
unique for two reasons. First, it was
the first complaint we had ever filed
against a sitting appellate judge.
Second, although the complaint was
signed by then HCCLA President
Patrick McCann, he was not alone.
Mark Bennett and I gathered
signatures from about 100 members
who wanted to show their support
for this particular complaint.
JAMES KEESHAN, VISITING
DISTRICT COURT JUDGE
In 2008, Judge James Keeshan was
sitting as a visiting district court judge
in Montgomery County. Keeshan
ordered a Writ of Attachment and
had an HCCLA member taken
into custody. Troy McKinney and
I appeared in court with a Writ
of Habeas Corpus that afternoon.
We were supported by the
Montgomery County criminal
defense bar. There was no lawful
basis for Keeshan’s arrest of our
member. Keeshan released our
member from custody. The HCCLA
Board filed a judicial misconduct
complaint against Judge Keeshan.
ROBERT JONES, VISITING
DISTRICT COURT JUDGE
In 2011, Judge Robert Jones was
sitting as a visiting judge for Judge
Herb Ritchie. On a Friday
afternoon Judge Jones called a
female defendant to the bench.
The defendant was present and
had not violated any condition
of bond. Judge Jones asked the
defendant where her lawyer was.
She responded that she believed
he was in another county and on
2019, VOLUME 3 / THE DEFENDER
his way. Judge Jones then
immediately instructed the bailiff
to take her into custody.
There was no lawful basis for
the defendant’s bond revocation.
I happened to be in the courtroom on
the day this occurred. I approached
the bench and respectfully advised
Judge Jones that he could not legally
take someone into custody simply
because her lawyer was late. Judge
Jones was not interested.
To the court coordinator’s credit, he
recognized the questionable bond
revocation and put the defendant’s
case back on the docket for Monday
when Judge Ritchie would return.
To Judge Ritchie’s credit, when he
returned to the bench on Monday
and learned of Judge Jones’ illegal
bond revocation, he immediately
reinstated the defendant’s bond.
The HCCLA Board voted to file
a judicial misconduct complaint
against visiting Judge Robert Jones.
On August 31, 2011, then HCCLA
President Earl Musick signed
and filed the complaint. HCCLA
was later advised that the State
Commission on Judicial Conduct
had issued a private sanction against
Judge Jones. Thereafter, Judge
Robert Jones was no longer serving
as a visiting judge in Harris County.
WILLIAM HARMON,
HARRIS COUNTY CRIMINAL
COURT AT LAW NO. 2
Judge William Harmon had a large
MADD plaque on display on his
bench. The MADD plaque was on
public display and large enough to
be seen from the jury box.
10
THE DEFENDER / 2019, VOLUME 3
Judge Harmon’s display of the
MADD plaque was in clear violation
of the Judicial Canons. A number of
HCCLA leaders as well as a number
of DWI lawyers approached Judge
Harmon and asked him to remove
the plaque from his bench. It was
suggested that the plaque would be
more appropriately displayed in the
judge’s chambers. Judge Harmon
refused to remove the plaque.
Attorney Tyler Flood filed motions
for the removal of the plaque.
What followed was a retaliatory and
ugly attack by the court on Tyler
Flood and his clients. Tyler’s cases
were all immediately set for trial,
notwithstanding the fact in most
of the cases discovery was far
from complete.
The HCCLA Board voted to file
a Judicial misconduct complaint
against Judge William Harmon.
On April 14, 2015, then HCCLA
President Carmen Roe filed the
complaint. The complaint was based
on the retaliation against Tyler Flood
and the court’s public display of the
MADD Plaque.
In January 2016, the MADD plaque
CONTINUED : CROSSING THE RUBICON
was unceremoniously removed
from the bench. In February 2016,
HCCLA was advised that the State
Commission on Judicial Conduct
issued a private sanction against
Judge William Harmon.
JIM WALLACE, CATHERINE
CABANISS, MICHAEL
MCSPADDEN, JEANNINE
BARR, CATHERINE EVANS
AND GEORGE POWELL
(HARRIS COUNTY DISTRICT
COURT JUDGES)
In 2017 and 2018, there were
investigations regarding the courts’
systematic denial of Personal
Recognizance Bonds.
A federal lawsuit was filed against
the Harris County Criminal Courts.
Federal District Court Judge
Lee Rosenthal found that over
an extended period of time the
Harris County Criminal Courts had
systematically denied PR Bonds.
Judge Rosenthal issued orders that
required the county judges to stop
the systematic denial of PR bonds on
misdemeanor cases.
Information obtained during this
time indicated that Harris County
district courts had also engaged in
a practice of systematically denying
PR bonds. The HCCLA Board
considered this matter.
In an unprecedented decision, the
HCCLA Board voted to file judicial
misconduct complaints against all of
the above-named judges.
In May 2018, then HCCLA President
Tucker Graves signed complaints
against the 6 named judges. Sarah
Wood authored the complaints.
The complaints were based on the
district court judges systematic
denial of PR bonds.
In letters dated September 5, 2019,
the State Commission on Judicial
Conduct notified HCCLA of its
decision on the 6 complaints.
The notification stated that on August
26, 2019, the Commission ruled
that each of the named judges
received a Public Admonishment
for their misconduct. Later,
without explanation, the Commission
changed its rulings. On November
1, 2019, the Commission notified
HCCLA that these judges had
received private sanctions. The
Commission offered no reason for its
decision.
The Commission recently drew
strong, well-deserved condemnation
from the Houston Chronicle for its
lack of transparency.
POTENTIAL GROUNDS
FOR FUTURE JUDICIAL
MISCONDUCT
COMPLAINTS
The HCCLA Board regularly
receives and investigates misconduct
complaints against the judiciary.
The Board takes all complaints
seriously. Historically, the Board
has only filed a judicial misconduct
complaint after conducting a due
diligence investigation.
Recently, there have been a series
of complaints regarding ongoing
judicial misconduct.
THE THREE PRIMARY
COMPLAINTS ARE AS FOLLOWS
1
Certain district court judges are
not following the law and are
sua sponte revoking lawful
personal recognizance bonds;
2 Certain district court judges are
routinely treating defense
counsel in a rude and hostile
manner; and
3
Certain county and district courts
are daily allowing or encouraging
their bailiffs to address all clients
in a rude manner.
With these ongoing complaints in
mind, it seems prudent to make certain
that all judges and lawyers are aware
of certain relevant provisions of the
Texas Code of Judicial Conduct.
CANON 2:
Avoiding Impropriety
and the Appearance of
Impropriety in All of the
Judge’s Activities
A
A judge shall comply with
the law and should act at all
times in a manner that
promotes public confidence in
the integrity and impartiality
of the judiciary.
Judges who ignore the law,
particularly regarding bond matters,
may run afoul of this Canon and
be subject to a judicial misconduct
complaint. Judges who illegally
revoke lawful bonds may be violating
Canon 2.
CANON 3:
Performing the Duties of
Judicial Office Impartially
and Diligently
B
ADJUDICATIVE
RESPONSIBILITIES
(4) A judge shall be patient,
dignified and courteous to
litigants, jurors, witnesses,
lawyers and others with whom
the judge deals in an official
capacity, and should require
similar conduct of lawyers, and
of staff, court officials and others
subject to the judge’s direction
and control.
Per Canon 3, a judge shall be
patient, dignified and courteous
to litigants and lawyers. The
requirement that judges be patient,
dignified and courteous to all lawyers
is mandatory, not optional.
Judges who routinely treat defense
counsel in a rude and hostile
manner are violating the clear
dictates of Canon 3B(4). Judges
who are routinely rude and hostile
to our members are acting in direct
violation of the Canons and subject
to a misconduct complaint.
Finally, the Canons provide that court
staff subject to the court’s direction,
are also required to be “patent,
dignified and courteous” to litigants
and lawyers. A judge should make
certain that their bailiffs and court
staff all comport their conduct with
the Canons. A judge who allows their
bailiffs to daily shout at and verbally
abuse defendants, is not complying
with the Canons.
CONCLUSION
No matter what our role, participating
in the criminal justice system is
stressful. We should recognize
that we all have stressful jobs
and we should work to treat each
other with courtesy, patience and
professionalism. Defense counsel,
judges, prosecutors, bailiffs, clerks,
probation officers, coordinators and
court reporters all have stressful
jobs. If we all treat each other with a
little more kindness and a little more
respect, we can make the courthouse
a much more pleasant place to work.
After practicing criminal law in state
and federal court for 36 years, I can
attest to the fact that most defense
lawyers do their best to represent
their clients in a conscientious and
11
2019, VOLUME 3 / THE DEFENDER
professional manner. Most of us are
respectful of the judiciary and seek
no conflict. Most of us try to be
honest and polite advocates. All we
ask is that the judiciary and their staff
treat us with the patience, dignity and
courtesy the Canons require.
I am certain HCCLA would be
delighted to never file another
judicial misconduct complaint.
While we approach the judiciary in
good faith, we will also continue to
be vigilant in holding the judiciary to
the standards required by the Texas
Code of Judicial Conduct.
Robert Fickman
has practiced
criminal
defense in
State and
Federal Court
for 36 years.
He is AV-rated
by Martindale-
Hubbell, a Past
President of HCCLA, past
Board Member of TCDLA, and a longtime
vocal critic of the criminal justice system.
He received the HCCLA President's Award
in 2018; and HCCLA Torch of Liberty
Award in 2019 for his many years fighting
to eliminate Harris County's "Plea Mill" and
systematic denial of PR Bonds.
12
THE DEFENDER / 2019, VOLUME 3
DEFENDING THE
Lawyer Client
by D. Chris Hesse
We’ve worked hard to get our law degree…3 years of
grueling study and the hardest week-long test ever!
While we’ve dreamed of giving up the law and living on
a beach somewhere, we simply cannot give it up. It’s in
our nature to fight for others. The law is our mistress and
our mistress is jealous.
While we may never admit it, we all do it to some extent.
When we receive our monthly Texas Bar Journal we
may first look to the Disciplinary Actions section to
see if anyone we know is there. Is there someone from
our geographic area? If we find somebody familiar we
look at why they were disciplined. Then we think to
ourselves, “sure sucks to be them.” We note how they
were disciplined and ponder ways to avoid such action
against ourselves and ways to avoid getting our name
listed there for all our colleagues to see. It’s the height of
professional embarrassment.
Some of us may have received notices from the State
Bar of Texas (SBOT) indicating a grievance had been
filed against us. Those notices ask for a response.
If we were lucky, the grievance was dismissed out of
hand by the SBOT contemporaneously with the notice
of the grievance. Either way, we shuddered with some
trepidation. At best: “thank God I dodged that bullet.”
At worst: “when will I find time to respond to this?”
Say nothing of the lawyers who are accused of crimes.
Their law licenses now face serious jeopardy. I have
had the honor of defending a fellow lawyer from such a
criminal accusation. I considered it an honor since that
lawyer, who did not practice criminal law, held me in
such high regard. They chose me to defend them when so
many other great lawyers were at their disposal. Many of
us have defended a colleague from criminal accusations.
And we took special care since, deep down inside, we
knew that “but for the grace of God, go I.” We strived
extra hard for this special lawyer client.
In many circumstances the lawyer client tries to take
charge of their own defense. They want the helm and
they second-guess. It’s difficult for them to avoid the
urge. They are acutely aware of certain aspects of the
law, much more than the average citizen. Defending
the lawyer client can be challenging in that regard.
It is similar to the concept of “doctor, heal thyself!”
Medical doctors have often joked that having another
MD as a patient can be taxing.
While I won’t go into detail about the circumstances of
my lawyer client defense, this article points out some
important issues we should be aware of before defending
the lawyer client. Remember, a colleague’s law license is
on the line.
The Ethical Rules
Two documents govern our ethical responsibilities as
lawyers. The first is the Texas Disciplinary Rules of
Professional Conduct (TDRPC). The second is the Texas
Rules of Disciplinary Procedure (TRDP). “Professional
Misconduct” is defined in TRDP Rule 1.06 and covers,
in part, certain crimes:
4 Engaging in conduct that constitutes barratry as
defined by the law of this state . . .
7 Conviction of a Serious Crime, or being placed
on probation for a Serious Crime with or without an
adjudication of guilt.
8 Conviction of an Intentional Crime, or being placed
on probation for an Intentional Crime with or without
an adjudication of guilt.
Tex. Rules Disciplinary P. R. 1.06(W)
Barratry can be prosecuted as a crime in this State under
Tex. Penal Code Ann. sec. 38.12 (West 2013). However,
it’s exceedingly rare to see an attorney accused and
prosecuted for such a crime.
A “Serious Crime” is defined in TRDP Rule 1.06 as
“. . . barratry; any felony involving moral turpitude;
any misdemeanor involving theft, embezzlement, or
fraudulent or reckless misappropriation of money or
other property; or any attempt, conspiracy, or solicitation
of another to commit any of the foregoing crimes.”
Tex. Rules Disciplinary P. R. 1.06(AA)
An “Intentional Crime” is defined in TRDP Rule 1.06 as
“(1) any Serious Crime that requires proof of knowledge
or intent as an essential element or (2) any crime
involving misapplication of money or other property
held as a fiduciary.”
Tex. Rules Disciplinary P. R. 1.06(T)
Of vital importance, as the criminal defense attorney,
is knowing whether the crime your lawyer client stands
accused is an “Intentional Crime.” Intentional crimes
subject the lawyer client to “Compulsory Discipline”
pursuant to TRDP 8.01:
13
Generally: When an attorney licensed to practice law
2019, VOLUME 3 / THE DEFENDER
in Texas has been convicted of an Intentional Crime or
has been placed on probation for an Intentional Crime
with or without an adjudication of guilt, the Chief
Disciplinary Counsel shall initiate a Disciplinary Action
seeking compulsory discipline pursuant to this part. The
completion or termination of any term of incarceration,
probation, parole, or any similar court ordered supervised
period does not bar action under Part VIII of these rules
as hereinafter provided. Proceedings under this part are
not exclusive in that an attorney may be disciplined as a
result of the underlying facts as well as being disciplined
upon the conviction or probation through deferred
adjudication.
Tex. Rules Disciplinary P. R. 8.01
It is also important to point out TRDP 8.02. “Conclusive
Evidence: In any Disciplinary Action brought
under this part, the record of conviction or order of
deferred adjudication is conclusive evidence of the
attorney’s guilt.”
Tex. Rules Disciplinary P. R. 8.02
Finally, look at TRDP 8.05 to get a comprehensive picture
of what “Compulsory Discipline” is:
Disbarment: When an attorney has been convicted of an
Intentional Crime, and that conviction has become final,
or the attorney has accepted probation with or without an
adjudication of guilt for an Intentional Crime, the attorney
shall be disbarred unless the Board of Disciplinary
Appeals, under Rule 8.06, suspends his or her license
to practice law. If the attorney’s license to practice law
has been suspended during the appeal of the criminal
conviction, the Chief Disciplinary Counsel shall file a
motion for final judgment of disbarment with the Board
of Disciplinary Appeals. If the motion is supported by
affidavits or certified copies of court documents showing
that the conviction has become final, the motion shall be
granted without hearing, unless within 10 days following
the service of the motion pursuant to Rule 21a of the Texas
Rules of Civil Procedure, upon the attorney so convicted
or his or her attorney of record, the attorney so convicted
files a verified denial contesting the finality of the
judgment, in which event the Board of Disciplinary
Appeals will immediately conduct a hearing to determine
the issue. If no Disciplinary Action is pending at the
time the conviction becomes final, disbarment shall be
initiated by filing a Disciplinary Action.
Tex. Rules Disciplinary P. R. 8.05
14
It’s apparent that “Intentional Crime” covers any
THE DEFENDER / 2019, VOLUME 3
“Serious Crime” which includes a mens rea element of
“intentionally” or “knowingly.” If the “Serious Crime”
your lawyer client is accused of does not have intentionally
or knowingly alleged in the charging instrument, then
you are safe. However, realize that deferred adjudication
probation for a “Serious Crime,” having an element of
intentional or knowingly, will subject your lawyer client
to Compulsory Discipline. Don’t make this mistake!
The Misdemeanor Class “C”
“Compulsory Discipline” has also been prescribed for
Class C crimes. For example, in the Texas Bar Journal, 68
Tex. B.J. 753 (Sep. 2005), on June 30th, 2005, the Board
of Disciplinary Appeals signed a judgment of disbarment
against one Thomas Ronald Adkins of Houston, because
he plead guilty to Class C theft in 2004. The Board defined
this theft as an “Intentional Crime” under the Texas Rules
of Disciplinary Procedure. The Board further noted that
the criminal conviction was “not fully probated, although
probation was available.” Misdemeanor theft, even a
Class C, falls squarely within the definition of “Serious
Crime.” It also is included in the definition of “Intentional
Crime” since it requires proof of knowledge or intent.
(There is no such thing as a reckless or negligent theft).
Furthermore, even if Mr. Adkins had accepted a deferred
adjudication probation under Article 45.051 of the
Code of Criminal Procedure, he still would have been
subjected to “Compulsory Discipline.” Article 45.051 of
the Code applies to Class C cases prosecuted in municipal
or justice courts, whereas Article 42.12 “Community
Supervision” Sec. 5. “Deferred Adjudication, Community
Supervision” applies to deferrals of felonies and Class
CONTINUED : DEFENDING THE LAWYER CLIENT
A and B misdemeanors. Article 45.051 “Suspension of
Sentence and Deferral of Final Disposition” states: “On
a plea of guilty or nolo contendere by a defendant or on a
finding of guilt in a misdemeanor case punishable by fine
only and payment of all court costs, the judge may defer
further proceedings without entering an adjudication of
guilt and place the defendant on probation for a period
not to exceed 180 days.”
TEX. CODE CRIM. PROC. ANN. art. 45.051(a)
(West 2015)
TRDP 8.05 draws no distinction between Article
42.12 Sec. 5 deferrals and Article 45.051 deferrals.
Consequently, Class C deferred dispositions fall squarely
within TRDP 8.05. TRDP 8.05 covers any deferred
probations, regardless of whether the deferral is a
“deferred disposition” or a “deferred adjudication.” Both
are deferred probations. The point is Class C accusations
must be treated just as seriously as any other crime.
Article 55.01 of the Texas Code of Criminal Procedure
authorizes an expunction of a Class C deferred under
certain circumstances. But avoid falling prey to thinking
“we can plead to a deferred disposition now, and in 6
months after the crime, get this whole thing expunged.
No one will ever know.” I would shun a gamble with
your lawyer client’s license this way. What if someone
learned, before the expunction, that your client had
plead to a deferred Class C triggering “Compulsory
Discipline?” Not a good risk!
The Felony Involving
Moral Turpitude
What is a felony “involving moral turpitude?” It’s
interesting to note, as criminal defense practitioners,
we may consider all felony convictions as “crimes of
moral turpitude” with which we can impeach someone
on the witness stand to suggest they are untrustworthy.
See, Tex. R. Evid. 609. Put simply, though, crimes of
moral turpitude usually involve some sort of dishonesty
or deception. But because the TRDP does not define the
term, we must look to case-law to determine how “moral
turpitude” has been interpreted:
1
Sexual assault of a child. In the Matter of GMP,
909 S.W.2d 198 (Tex. App.— Houston [14th
Dist.] 1995, no pet.).
2 Failure to identify (giving false information):
Lester v. State, 366 S.W.3d 214 (Tex. App.—
Waco 2011, pet. ref’d).
Lying to a police officer: (filing false report) Lape
3
v. State, 893 S.W.2d 949 (Tex. App.— Houston
[14th Dist.] 1994, pet. ref’d); Robertson v.
State, 685 S.W.2d 488 (Tex. App.— Fort Worth
1985, no pet.) (“no clear cut criteria” for
moral turpitude.”)
4
Mail fraud: State Bar of Texas v. Heard,
603 S.W.2d 829 (Tex. 1980).
Tax evasion: In re Humphreys, 880 S.W.2d
5
402 (Tex. 1994) (whether a case involves moral
turpitude is a question of law); In the Matter of
Birdwell, 20 S.W.3d 685 (Tex. 2000).
Prostitution: Holgin v. State, 480 S.W.2d 405
6
(Tex. Crim. App. 1972); Husting v. State, 790
S.W.2d 121 (Tex. App.–San Antonio 1990, no pet.)
7
Purchase of a child: In the Matter of Thacker,
881 S.W.2d 307 (Tex. 1994).
Indecent exposure: Polk v. State, 865 S.W.2d 627
8
(Tex. App.— Fort Worth 1993, pet. ref’d).
9 Failure to stop & render aid: Tate v. State Bar
of Texas, 920 S.W.2d 727 (Tex. App.— Houston
[1st Dist.] 1996, writ denied).
Theft: Milligan v. State, 554 S.W.2d 192 (Tex.
10 Crim. App. 1977).
11 Aggravated Assault by a man on a woman:
Jackson v. State, 50 S.W.3d 579 (Tex. App.—
Fort Worth 2001, pet. ref’d); Ludwig v. State, 969
S.W.2d 22 (Tex. App.— Fort Worth 1998, pet.
ref’d); Hardeman v. State, 868 S.W.2d 404
(Tex. App.— Austin 1993), pet. dism’d, 891
S.W.2d 960 (Tex. Crim. App. 1995).
12 Assault by a male on a female: Trippell v. State,
535 S.W.2d 178 (Tex. Crim. App. 1976);
Zamora v. State, No. 13-10-146-CR (Tex. App.—
Corpus Christi 2010, no pet.) (not for pub.);
Hardeman v. State, 868 S.W.2d 404 (Tex. App.—
Austin 1993, pet. dism’d).
13 Communicating a false alarm: Op. Tex. Att’y
Gen. DM 96-140 (1996).
Murder and indecent exposure: Polk v. State,
14 865 S.W.2d 627 (Tex. App.— Fort Worth 1993,
pet. ref’d).
Swindling: Sherman v. State, 62 S.W.2d 146
15 (Tex. Crim. App. 1933).
16 Bank fraud: Searcy v. State Bar of Texas, 604
S.W.2d 256 (Tex. Civ. App. - San Antonio, 1980).
17 Theft, shoplifting: Milligan v. State, 554 S.W.2d
192 (Tex. Crim. App. 1977).
18 Public lewdness: Escobedo v. State, No. 10-05-
00056-CR (Tex. App.— Waco 2010, no pet.)
(not for pub.)
15
Following are not crimes of moral turpitude:
2019, VOLUME 3 / THE DEFENDER
Felony drug possession: In the Matter of Lock,
1
54 S.W.3d 305 (Tex. 2001).
2 Delivery of marijuana: Hernandez v. State, 976
S.W.2d 753 (Tex. App.—Houston [1st Dist.]
1998), pet. ref’d).
Misprision: Duncan v. Board of Disciplinary
3 Appeals, 898 S.W.2d 759 (Tex. 1995) (crimes
involving moral turpitude are those that involve
dishonesty, fraud, deceit, misrepresentation,
deliberate violence, or that reflect adversely on a
person’s honesty or trustworthiness.)
4
Aggravated assault with SBI: Turton v. State
Bar of Texas, 775 S.W.2d 712 (Tex. App.—San
Antonio 1989, writ denied)(not on its face a felony
involving moral turpitude—look at the
circumstances of the offense).
Misdemeanor possession of marijuana: Bell v.
5 State, 620 S.W.2d 116 (Tex. Crim. App. 1980).
Juvenile delinquency: Rivas v. State, 501 S.W.2d
6
918 (Tex. Crim. App. 1973).
Unlawfully carrying a weapon: Trippell v. State,
7
535 S.W.2d 178 (Tex. Crim. App. 1976).
Gambling: Neill v. State, 258 S.W.2d 328 (Tex.
8
Crim. App. 1953).
Misdemeanor DWI: Shipman v. State, 604
9
S.W.2d 182 (Tex. Crim. App. 1980); Janecka v.
State, 937 S.W.2d 456 (Tex. Crim. App. 1996).
10 Public intoxication: Ochoa v. State, 481 S.W.2d
847 (Tex. Crim. App. 1972).
Reckless conduct: Patterson v. State, 783 S.W.2d
11 268 (Tex. App.—Houston [14th Dist.] 1989,
pet. ref’d).
12 Assault: Valdez v. State, 450 S.W.2d 624 (Tex.
Crim. App. 1970).
13 Disturbing the peace: Garza v. State, 532 S.W.2d
624 (Tex. Crim. App. 1976).
Criminal Trespass: Hutson v. State, 843 S.W.2d
14 106 (Tex. App.—Texarkana 1992, no pet.).
16
Criminal Mischief: Gonzalez v. State, 648 S.W.2d
15
THE DEFENDER / 2019, VOLUME 3
740 (Tex. App.—Beaumont 1983, no pet.)
Soliciting bonding business: Op. Tex. Att’y Gen.
16 GA-299 (2005) (violations of Tex. Occ. Code
Sec. 1704.304 (soliciting bonding business in
a police station, jail, prison, detention facility, or
other place of detainment).
Significantly, there are several cases listed above
involving an attorney disciplined by the State Bar of
Texas. For example, in Tate v. State Bar of Texas, 920
S.W.2d 727 (Tex. App.— Houston [1st Dist.] 1996, writ
denied), Tate was charged with felony failure to stop and
render aid. Tate hit three boys with his pickup, killed
one of the boys, and then left the scene of the accident
without rendering aid. He eventually received four years
confinement for three counts of failure to stop and render
aid. He was subsequently disbarred for a felony involving
moral turpitude. As far as the State Bar was concerned,
leaving the scene of an accident involving injury was a
crime of moral turpitude.
Summary of Avoiding
Compulsory Discipline
If your lawyer client faces a felony involving moral
turpitude, charged as “intentionally” or “knowingly,”
and the evidence is overwhelming against them, consider
plea bargaining down to a misdemeanor involving moral
turpitude. As long as the misdemeanor involving moral
turpitude is not barratry, theft, embezzlement, or fraudulent
or reckless misappropriation of money or other property
CONTINUED : DEFENDING THE LAWYER CLIENT
(or any attempt, conspiracy, or solicitation of another to
commit any of those crimes), then your client does not fall
under the definition of “Intentional Crime.” Consequently,
they steer clear of “Compulsory Discipline.” Finally,
be wary of any misdemeanor “Intentional Crime.”
Treat all misdemeanors falling under the definition of
an “Intentional Crime” very seriously, even a Class C.
Compulsory Discipline
Not to Be Confused with
Discretionary Reporting of
Unprofessional Conduct
This article has specifically focused on the criminal
allegation and how that allegation can trigger
“compulsory discipline,” in the sense that the Chief
Disciplinary Counsel has a mandatory duty to initiate a
Disciplinary Action pursuant to TRDP 8.01. It is not to be
confused with the more general concept of “Professional
Misconduct” in which an attorney can violate any of
the Texas Disciplinary Rules of Professional Conduct,
and another attorney would have an affirmative duty
to report such misconduct, pursuant to the provisions
of TDRPC 8.03. Please note that such affirmative duty
to report applies to “…conduct that raises a substantial
question as to that lawyer’s honesty, trustworthiness or
fitness as a lawyer…” Id. TDRPC 8.03, therefore, gives
the potentially reporting attorney discretion in deciding
when a violation of applicable rules raises a “substantial”
question as to honesty, trustworthiness, or fitness.
Comment 2 to TDRPC also brings up this “substantial”
question and notes that “A measure of judgment is,
therefore, required in complying with the provisions of
this Rule,” as well as, “The term ‘substantial’ refers to the
seriousness of the possible offense and not the quantum
of evidence in which the lawyer is aware.” Id.
It is clear, when reading TDRPC 8.03, and TRDP 8.01
in conjunction, that there is discretionary reporting
when it comes to any type of professional misconduct,
but there is no discretion given to the Chief Disciplinary
Counsel to initiate Disciplinary Action when it comes to
“compulsory discipline.”
Chris Hesse is a Houston native, who
now resides and practices in Amarillo,
Texas. He is an ACS-CHAL Forensic
Lawyer-Scientist, who focuses primarily
on DWI cases. Chris represents clients
at trial, on direct appeal, and on post-
conviction habeas corpus.
112 W. 8th Ave., Ste. 617 / Amarillo, Texas 79101
Tel: (806) 350-6785 / Fax: (806) 350-6786
www.PanhandleCriminalDefense.Attorney
by Jake Gatlin, LCDC
SUBSTANCE USE DISORDERS:
CAUSES, CONDITIONS AND
TREATMENT
The Underlying Problem
Most people simply want to satisfy their
natural instincts of material and emotional
security, companionship, and sex. And when
these needs are threatened, they may resort to
a variety of outlets to change the way they feel.
These compensating “remedies” may include
any combination of work, relationships,
attention, hobbies, media, gambling, food,
tobacco, sex, alcohol and drugs.
People generally drink alcohol and use drugs
because they like the effects. They may
be partaking simply to relax, release their
inhibitions, or fit in. They may need mood-
altering substances to face the challenges of
day-to-day living. Mood-altering substances
may be used to cope with the underlying
effects of parental lack of nurturing, fear of
abandonment or a spectrum of trauma. Or,
some individuals may also be genetically
predisposed to substance abuse.
Over time, “social or recreational use” of
mood-altering substances by at-risk individuals
may progress toward substance dependence
and even uncontrollable addiction. The grave
health and social consequences of chemical
dependency often lead to: institutionalization,
tragedy or death. The progression may be
interrupted by a “moment of clarity” or an
intervention by the abuser’s family, associates,
employer or the criminal justice system. This
may lead to a lifelong commitment to recovery.
17
2019, VOLUME 3 / THE DEFENDER
Consequences
Initially, painful consequences of substance
abuse may arise, including problems with
physical, emotional, and mental health. Other
problem areas may include interpersonal
relationships with family, friends and
employers. These and additional problems
such as financial impacts or encounters
with the judicial system may be sufficient
deterrents for a user to stop or moderate on
their own. Of course, one wouldn’t know if an
individual’s one-time bad decision indicates
they have a full-blown substance use disorder.
However, for an alcoholic or addict whose
life has become unmanageable, they may
be in the grip of a progressive, chronic,
and sometimes fatal illness. This disease
is characterized by physical cravings and a
warped mental obsession.
The Solution
However, there is a solution to substance abuse
and dependence. The medical and psychiatric
community classify alcoholism and addiction
as progressive illnesses, rather than a moral
issue or lack of willpower. The modern
recovery movement began in 1935 with
the introduction of 12-step support groups.
Today, many levels of care are available
through licensed treatment centers. Treatment
combined with support groups can address
the underlying issues causing the behavior
that leads to substance abuse. And, statistics
show better success rates when medical and
18 19
by Joseph Ruiz
persuading
THE DEFENDER / 2019, VOLUME 3

2019, VOLUME 3 / THE DEFENDER

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

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

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

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

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

Jake Gatlin is a Licensed

Why engage in an extended continuum of care
including intensive outpatient programs?
According to the National Center for Biotechnology
Information (NCBI)1, Intensive Outpatient Programs
(IOPs) are an important part of the continuum of care
for alcohol and drug use disorders. IOPs allow those
who have gone through medical detoxification and
who no longer need 24-hour supervision to receive
psycho-social support, facilitated relapse management
and coping strategies, and individual symptoms and
needs addressed. The value of IOPs has been verified
through a number of industry studies, and IOPs are
proven to substantially reduce alcohol and drug use
of those who attend consistently.
Chemical Dependency
Counselor and serves
as the Clinical Director of
First Step To Recovery,
LLC. First Step To Recovery
provides Intensive Outpatient
Treatment to adults either
directed by the criminal justice
system or those seeking help to overcome substance abuse
of alcohol and drugs. Jake has over 20 years of experience as
a chemical dependency treatment professional at all levels
of care including detox, residential, partial-hospitalization,
outpatient, and aftercare. Jake has worked with both
adolescents and adults. Jake has also held the positions
of Community Liaison for the Mayor of Houston’s Drug
Prevention Program, Founder/President of the Partnership
for a Drug-Free Houston, and Vice-Chairman of the Dual
Diagnosis Task Force. fstrecovery.com ▪ 713.462.3900 ▪
7676 Hillmont #201, Houston, Texas 77040
off our lawyer hats and put on our private citizen hats in order
to be able to effectively persuade jurors to reject the State’s
purported science. We need to be able to connect with jurors on
a basic human, visceral level in order to move them towards that
NOT GUILTY verdict. This requires the dedicated trial lawyer
to pursue a greater understanding of human nature, psychology,
and how we all make decisions2. Combining knowledge of the
psychology of influence and persuasion with the knowledge
of the legal and scientific intricacies involved in a DWI case
will give us all the best chance at success when we present our
disconnect defense to the jury.
So why do we need to make this investment of time learning
about things not directly in the legal or scientific arena?
Look no further than the comments following our local news
coverage of any criminal case in general, and high-BAC DWI
cases in particular. There we will find incredible, unfiltered
20 21
THE DEFENDER / 2019, VOLUME 3

2019, VOLUME 3 / THE DEFENDER

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

Ultimately, in order to persuade a jury to accept

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

Because of the high BAC, we aren’t supposed to win this
case, which means we really have nothing to lose. But we
have to have the mindset that we are absolutely going to
win. I suggest getting into the prosecutor’s head leading
up to the trial date. Check in to see what the court’s
trial docket looks like ahead of time. Let the prosecutor
know that you’re really excited to try this case. Put
them on their heels a bit. They’re the ones with all the
pressure to win.
Listen extremely carefully during the government’s voir
dire. If they in any way misstate the law, we should not
hesitate to object. If the judge sustains the objection,
the prosecutor’s credibility has taken a big hit. Whether
Texas at all. It should instead say “The Jury Trial of Mr.
John Doe” and have our firm logo on it. I believe this at
least places more of their focus on themselves, our client,
and us instead of it being all about the State of Texas
To establish rapport, we should talk like a prospective
juror rather than like a lawyer. For example, there is no
need to impress them with legal jargon like voir dire.
We should simply refer to it as “jury selection” when
conducting our voir dire. When it’s our turn, we should
take a brief moment to re-introduce ourselves and our
client, placing both hands on the client’s shoulders, letting
the panel know that you’re honored and proud to be here
representing Mr. John Doe4. Impress upon them that the
next couple of days will be some of the most important
people going through the motions and not really being
open about their feelings. People going along to get
along aren’t going to fight for your client’s freedom. I
guarantee that most persons with biases haven’t said a
word at this point. This is the moment when you have
to use the rule for reciprocation to your advantage.
It’s a simple enough principle: those who have given
benefits to someone are entitled to benefits from them
in return5. Dr. Cialdini explains that “requesters who
hope to commission the pre-suasive force of the rule for
reciprocation have to do something that appears daring:
they have to take a chance and give first without a formal
guarantee of compensation6.” The idea is that if we’re
completely open and vulnerable with the panel, they will
feel obligated to reciprocate and be open and honest with
the atmosphere in the courtroom. You’ve humanized
yourself, whereas the government’s lawyer probably got
up there like a robot and didn’t say anything meaningful
about themselves. In less than 90 seconds, we have, at
the very least, made the panel much more receptive to
our subsequent narrative of the issues involved in the
case. And, at best, they’re now flat out rooting for us
to win. This is the moment where we discard the role
of underdog and move forward knowing that we’re now
the favorites.
Brainstorming what you will say in your introduction
will take a lot of emotional energy and introspection.
It forces you to connect with yourself and to find your
unique voice, which is so hard to do in the modern,
22
THE DEFENDER / 2019, VOLUME 3
distracted world we live in today. In order to persuade
a jury of the righteousness of our cause, we must find
our true, authentic voice. This will make us a relatable
human being instead of a paid mouthpiece or a slick
lawyer. Get in touch with the real you and be vulnerable
enough to show the jury the real you. As a caveat,
this all has to come from an authentic place; otherwise,
the jurors will smell it from a mile away and sense an
attempt at manipulation.
Once you get jurors openly discussing their feelings
about the important issues, and sharing personal life
experiences, make sure to connect on a personal level
with the person that just opened themselves up to you.
For example, if someone shares that they lost their son
or daughter in a drunk driving accident and they can’t be
fair, take a few moments to acknowledge their strength
and courage in sharing, and to feel their pain. Don’t
just quickly move on from them because you’ve locked
them down for cause. Be a human being rather than a
CONTINUED : PERSUADING JURORS
calculating lawyer. In this manner, hopefully, we’ve
stricken all of the jurors that could not possibly consider
the disconnect defense, and are now left with peremptory
challenges that we can use to further solidify our final
jury.
I hate to admit it, but I was resistant to adopting the use of
PowerPoint in trials. I feared that it could interfere with
connecting with the panel. Now I couldn’t imagine not
using it. I’ve included the winning PowerPoints I used
in voir dire and the closing argument for the disconnect
acquittal I recently won. This was my first time ever using
a PowerPoint8. As we all know, everyone is attached to
their phones and tablets. We live in a world where people
are literally getting addicted to their screen time. Let’s
give potential jurors what they want: screen time while
they’re in court! I notice most prosecutors using slides
with lots of text on them. That’s because they’re using
their PowerPoints as a crutch. Potential jurors aren’t
interested in reading legal concepts. Instead, our goal
with PowerPoint should be to use mostly cartoons, charts,
and pictures to help them understand and reinforce key
concepts. The few slides that do have text should consist
of no more than 3 scaled questions, touching on sensitive
topics in the case that concern you. Everything else
should be mostly pictures accompanied by short phrases.
The 3 questions should all have a consistent grading,
i.e., favorable answers would be A or B and problematic
or even strike-for-cause-type answers would be C or D.
This way, when you’re deciding on how to exercise your
peremptory strikes, all other things being equal between
potential jurors, you have something objective on which
to base your decision.
Heading into my .161/blood draw/T-bone accident trial,
I was obviously concerned about the prospect of a juror
voting guilty automatically if the evidence showed my
client drank some amount of alcohol, then drove, and
was subsequently involved in an accident. I recommend
asking the entire panel to raise their hands if they’ve ever
been involved in a car accident. You should get 95% of
their hands up. Then follow up with how many have been
involved in an accident where alcohol was not in any way
involved. You’ll probably still have 95% of the panel
with their hands up. It’s an easy way to point out that
being involved in an accident doesn’t necessarily mean
someone is intoxicated (you can reinforce this concept
when you cross-examine the officer. He will readily admit
that alcohol is NOT a contributing factor in most accident
scenes the police respond to). You can follow up with
several jurors regarding what did cause the accidents they
were involved in. After this “pre-suasive” discussion,
you can then present a couple of slides that ask how
the potential jurors feel about the following statements:
I think you are automatically guilty of DWI if you drink
ANY amount of alcohol and then get behind the wheel
of a vehicle.
A) Strongly disagree
B) Disagree
C) Agree
D) Strongly Agree
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2019, VOLUME 3 / THE DEFENDER
I think you are automatically guilty of DWI if you drink
ANY amount of alcohol and then get behind the wheel of
a vehicle, and cause an accident.
A) Strongly disagree
B) Disagree
C) Agree
D) Strongly Agree
If the prosecutors object, argue it’s not an improper
commitment question, but rather a question to test the
jurors’ understanding of the presumption of innocence.
Obviously, at the end if you’re struggling with whom to
strike, you want to err on the side of the As and Bs being
on your jury. They’ve demonstrated by their responses
that they are much more likely to be receptive to the
disconnect defense. Of course, you also want to look for
innocent explanations for how this accident happened,
i.e., awkward intersection layout, texting, GPS, sleep
deprivation, distracting passengers, etc.
Remind jurors that our client’s innocence is the only
presumption in any criminal case. In other words, there
can be no presumption that a breath or blood test is
always reliable, valid, and accurate, or that the result
necessarily corresponds to John Doe (switched vial
theory in a blood case). Further, it’s not up to us to prove
that a result is inaccurate and/or falsely attributed to our
client. Rather, the Government has the burden to prove
beyond a reasonable doubt that their result is accurate
and is, in fact, indicative of our client’s blood and not
someone else’s. In other words, at the end of the case, a
juror should never be telling defense counsel, “you didn’t
prove the result was inaccurate.”
In a disconnect defense case, everything comes down to
whether the jury believes the government’s “science”,
i.e., the BAC result. Therefore, the credibility of the
government’s expert witness will be a huge factor that
goes into the jury’s decision-making process. Because
of this, I recommend using 3 different PowerPoint
slides to prime the jury to closely scrutinize what an
expert testifies to and not just take what they say at face
value simply because they’re an expert. Try to come
up with something in the news or pop culture than can
be analogized to the breath or blood expert in order
24
THE DEFENDER / 2019, VOLUME 3
to reinforce the idea that just because an expert says
something does not necessarily make it so. We shouldn’t
just ignore our commonsense and let someone else think
for us because of their credentials. After all, expert
witnesses are there to help the trier of fact understand
the evidence or determine a fact in issue9, not completely
replace the jury as the factfinders. The jurors must be
empowered by reminding them they are the sole judges
of the facts proved.
An example that proved effective for me was putting up
an image of the gigantic plume of chemicals covering the
greater Houston area following the ITC chemical plant
fire in Deer Park with the short caption “ITC’s Expert:
Air Quality Poses No Danger.” If you live in Deer Park
and have been training for a marathon, are you going
to listen to that expert and go for a 6-mile run in those
conditions, or are you going to question the narrative
and the expert’s motivations and biases? You’d want
proof. A lot of people have been watching Chernobyl on
HBO. Many of the Soviet Union’s government experts’
responses to that disaster would be great fodder for this
type of example. By focusing attention on experts early
and often, i.e., what Dr. Cialdini calls the frontloading
of attention, we’re creating an environment where jurors
will be empowered to closely scrutinizing the state’s star
witness later during the trial rather than blindly accepting
everything they say as truth.
Regarding the constitutional principles that apply in all
criminal cases, including the various burdens of proof,
I highly recommend Brent Mayr’s ring the bell analogy
PowerPoint slides. Once again, we’re giving potential
jurors a visual aid that will help them better learn these
CONTINUED : PERSUADING JURORS
concepts. While I used to use the NCDD staircase, I
really like Brent’s example, because it equates proving
a criminal case beyond a reasonable doubt to ringing the
bell at the carnival (nearly impossible). Also, within the
PowerPoint, you can change the text as needed to fit your
case theory. For example, in my case with the switched
vial theory, under the beyond a reasonable doubt column,
I inserted “I have no reasonable doubt in my mind that
the test was valid and accurate, and that it’s Mr. Doe’s
blood.” By doing so, I’ve already focused the panel’s
attention on the idea that the reported blood result may
not even correspond to my client’s blood.
Okay - I Agree There Is A Disconnect,
But Why?
As trial lawyers, we must be a surrogate for the jury.
Know that the above question will be in their minds as
they sift through the evidence. At this summer’s Rusty
Duncan seminar, Troy McKinney shared some tips on
presenting a disconnect defense. He took something as
simple as a picture of a Great Dane and a Chihuahua
standing next to one another to create a big dichotomy.
The slide has an arrow pointing to the Great Dane with
the caption saying “I have a government DNA test
report that says this is a Chihuahua. Do you believe it?”
It then says “Do you have to know why the report is
wrong to know that is must be wrong?” This example
can be a very powerful way to present a disconnect
defense, especially where there isn’t anything specific
in the breath or blood discovery that you can use to
discredit the result.
While this is a great default position when one has an
exculpatory video performance, and still allows for a
viable disconnect defense, in order to further increase
our chances of securing an acquittal we should strive to
give the jurors cold, hard facts that they can hang their
hats on to give the reported BAC result no weight in their
decision-making process10. Otherwise, the government
will argue the excellent video performance is due to
tolerance rather than innocence.
In my experience, jurors place a lot of weight on issues
surrounding breaks in the chain of custody of the blood
sample. Just because case law says that breaks go to
the weight of the evidence rather than its admissibility,
doesn’t mean we shouldn’t be making a huge deal of
the issue on cross-examination. While the lab typically
is extremely thorough in documenting chain of custody
once they receive it, the police department that handled
the sample prior to it getting to the lab normally does
not. By establishing that the lab’s analysis is only as
good as the integrity of the sample they receive from
the police agency, we can successfully undermine the
result. For example, if the sample was stored at the police
department for a few days before being sent out, where
exactly was it? Under what conditions was it stored?
Was it refrigerated? If it was mailed to the lab, was in
sent in a cooler? The blood analyst will readily admit
that they have no knowledge or control over the quality
of the sample they receive from law enforcement.
Garbage in, garbage out.
Also look at the entire batch run to see if there are .000s
or other BACs around .08 or under. In my .161 case,
7 of the 30 citizen samples tested reflected a BAC of
.000, while 2 others were at or below .08. If you have
a truly exculpatory video/disconnect case, arguing that
your client’s sample was accidentally switched suddenly
becomes much more plausible with this one document
in evidence. In fact, you can argue it’s the only logical
explanation for why there is such a huge disconnect
between what we can see and hear on video versus the
lab’s number.
Remember that we don’t have to prove human error
happened. In fact, how could we ever prove it happened?
The analyst will always testify that they’ve never
accidentally switched vials. Rather the government must
prove beyond a reasonable doubt that this didn’t happen.
Note that jurors don’t have to agree as to why they are
choosing to not give weight to the reported BAC result.
Some can say they don’t know why it’s wrong, they just
know it must be wrong, given all the evidence of sobriety.
Some can say they are unsure whether the sample the
lab received was viable for analysis (chain of custody,
short draws, bad venipuncture technique). Others can
say the sample must have been accidentally switched,
i.e., human error in the lab. Each juror can have different
reasons for their reasonable doubt, so long as they each
have at least a reasonable doubt that goes toward whether
the government proved intoxication.
In closing argument, acknowledge that what you’re
asking the jury to do is hard and it will require a lot of
courage, but it’s the right thing to do. Imagine that all
your jurors live next door to police officers and after the
trial they will eventually talk to them about the work they
did in that courtroom. They must be empowered to have
the guts and independence to stand up for the people.
There should be no shame in them telling their cop
neighbors that they had to find the client NOT GUILTY
because the government’s evidence just didn’t add up.
Show a slide of one of the disconnect pictures used in
voir dire and add the caption “The government wants
you to believe Mr. Doe’s BAC was a .18 at the time of
driving, even though he had the normal use of his mental
and physical faculties and didn’t smell like alcohol???”
Remind them that they individually, and collectively, are
the exclusive judges of the facts proved and the weight to
give the evidence, including the government’s purported
BAC results. We don’t do trials by police officer or trials
by expert witnesses for a reason. The accused is entitled
25
2019, VOLUME 3 / THE DEFENDER
to a trial by jury, because the jury is the accused citizen’s
last line of defense. For the final slide, put up a picture
of the statue of liberty, the constitution, or American flag.
When the State’s “science” is riddled with commonsense,
reasonable doubt due to the overwhelming majority of
the other evidence being consistent with sobriety, the law
demands a verdict of NOT GUILTY, because we err on
the side of freedom in America.
1 See Mark Thiessen’s articles on the Disconnect Defense, including
www.voiceforthedefenseonline.com/story/not-guilty-v-goliath-
conquering-giant-blood-tests-using-disconnect-defense
2 Thank you to Mark Bennett for recommending we all read Influence:
The Psychology of Persuasion and Pre-Suasion: A Revolutionary
Way to Influence and Persuade, both by Robert B. Cialdini, Ph.D.
3 In this case, the client did extremely well on SFSTs, his speech was
not slurred, his eyes were not bloodshot, and no one on scene
smelled alcohol on him.
4 Thanks to Jed Silverman for this tactic.
5 Pre-Suasion, page 153.
6 Id. at 154.
7 Thanks to Mark Thiessen for this introduction. See Eleven Essential
DWI Tactics, Voice for the Defense, June 2014.
8 Thanks to Brent Mayr and Sean Darvishi for so graciously sharing
PowerPoints with me to get started.
9 TEX. RULES EVID. 702.
10 To this end, I recommend hiring Amanda Culbertson to do an expert
review of your discovery packets. She’s always able to find issues
that you can use to strengthen your disconnect defense.
Joseph Ruiz was born in Spain and raised
in Houston, Texas. He and his wife of
6 years are expecting their first child
in November. He graduated from
Vanderbilt University in 2001 before
obtaining his J.D. from the St. Mary’s
University School of Law in 2004. He
began his career working in civil litigation
before transitioning towards his true calling
- criminal defense. He is a member of the Harris
County Criminal Lawyers Association, the Texas Criminal Defense
Lawyers Association, and the DUI Defense Lawyers Association.
Mr. Ruiz tried 300 jury trials in traffic, municipal, and JP courts
before moving into the state court arena, where he’s tried over
40 cases to verdict. He has secured numerous acquittals and has
obtained over 500 dismissals for his clients. Most recently, he
secured a not guilty verdict in Harris County for a young man in a
.16 blood draw/accident, which led to a .266 blood draw dismissal
on the eve of trial the following week. Before that, he won a
contentious trial in Brazoria County for a client charged with deadly
conduct after accidentally shooting someone with an AR-15. When
he’s not competing in the courtroom, he enjoys competing on the
basketball court.
26
Professional
THE DEFENDER / 2019, VOLUME 3
Investigators
How to Choose One, and
How to Use One –
Effectively
By Jeff Wax
F. Lee Bailey began his
career as an investigator. Undoubtedly
that experience helped him in his more noteworthy
vocation. Most lawyers realize the need for a superior
investigation but actually deal with this vital aspect of
their work with the same enthusiasm they show towards
going to the dentist. Perhaps this reluctance is due in part
to the unsavory mystique, which has relentlessly haunted
the professional private investigator since the days of Sam
Spade and The Maltese Falcon.
Nearly all attorneys who have actively practiced law in the
state of Texas for a few years have no doubt met a private
investigator in one situation or another. Oftentimes, he or
she has been the person hired to assist in the discovery
process in preparation of cases for trial. In many instances,
however, within the adversarial process, the opposing side
has employed an investigator who successfully uncovered
more information than the lawyer who relied upon his
own resources and the client’s assistance in establishing
the facts. Thus, this valuable support to the active
practitioner can be of inestimable value
when dealing with complex facts.
This is particularly true in a case that
requires obtaining answers to questions that
the average attorney would be unable to ascertain due to
time constraints, lack of contacts, or even because of not
knowing where to look.
Some law firms have turned over investigative
responsibilities to paralegals, expecting them to abandon
their LEXIS for a trench coat. Although paralegals may
have other skills that will allow them to work well with
investigators, in general, they do not have the resources
available to the qualified, licensed professional investigator
nor the “street sense” that professional licensed investigators
have garnered from many years “in the trenches”.
Investigative methods have changed exponentially over the
years. Many investigators now routinely use sophisticated
technology as a means of retrieving secondary source data
in almost every investigation. Access to this information is
available only to those investigators who have met stringent
requirements and have been properly vetted. However, many
lawyers are unfamiliar with the information these resources
yield. For example, the Social Security Number has grown
increasingly important in recent years as an investigative
tool as have the various methods used in obtaining this
valuable data.
Every attorney should become familiar enough with basic
investigative techniques to properly and cost-effectively
manage the investigation of their cases. In all but the
most conventional cases, the attorney
should take the time to schedule a face-to-face meeting with
the investigator during which s/he should seek constructive
input from those of us who are proficient in fact-finding.
Simultaneously, s/he should provide the investigator with
all available relevant information including documents,
reports, and statements, which the investigator needs to
read, evaluate and assimilate before their investigation
commences. Failure to provide such relevant information
will guarantee a duplication of efforts.
Just as attorneys
specialize, so do investigators.
It is important to ensure that the individual
whom you hire to conduct your investigation has the
technical competency, objectivity, intuitiveness, personality,
creativity and the requisite background and skills to design
and carry out the type of investigation that will provide
you with substantive information. You want an investigator
who will "leave no stone unturned". You should understand
that some investigative agencies might be unsuitable for
your needs because they lack the knowledge to properly
and effectively conduct a law-related investigation. For
that reason, many large law firms employ several different
investigators. I cannot stress enough that it is essential to
find the investigator with the right qualifications every time
you make a referral. This is the key to obtaining results that
are efficacious to your case.
Taking the time to assiduously evaluate your own needs
before locating and interviewing a qualified investigator
will be well worth the effort. Simply stated: exercise
due diligence in the selection process. Undoubtedly, the
most desirable quality an investigator must possess is
honesty. When an individual’s credibility has been called
into question it should send a message to you to become
concerned with the integrity of the information you have
received, not to mention the desirability of your investigator
as a potential witness in your case.
When you decide that a certain case warrants the use of
an investigator, you should consult with your colleagues
if you are not certain whom to engage. More often than
not, other attorneys will share the names of competent
investigators’ whom they have employed in the past, and
can objectively critique those investigators’ respective
levels of proficiency, thoroughness and overall quality of
work. It is advisable to undertake this process when hiring
a professional investigator just as it is when employing any
other expert witness.
27
You are responsible for recommendations made to
2019, VOLUME 3 / THE DEFENDER
your client and for the ultimate selection of an
investigator just as you are for the direct legal
services you provide throughout your
involvement in the case. Accordingly,
it is to your benefit to
interview a
prospective investigator
before deciding whether you make a
referral to him or her. In evaluating your investigator,
you should review his/her experience in serving other
attorneys. Ask for references. You should also ask for a
sample of the types of reports s/he might furnish you and
review them for content, quality, objectivity, attention to
detail, grammar, clarity of thought, insight and especially
usefulness. Because the investigator may be working
with and for your client, attempt to assess what kind
of impression he or she will make upon that client.
A negative impression may undermine your relationship
with your client. The selection process is complete when
you have successfully matched your firm's long-range needs
with the investigator's capacity to undertake wide-ranging,
creative discovery.
When Do You Use An Investigator?
Following are several cases from our files, which illustrate
the value of investigator’s services. An individual from
Georgia had allegedly absconded with a large sum of
money entrusted to him by his employer. The employer’s
attorney contacted me when he believed the subject
might have moved to an area within the state where
I provide investigative services. Although there were active
warrants for the suspect’s arrest and the Georgia authorities
were willing to extradite, law enforcement agencies
were not particularly interested in continuing to look for
this individual.
After determining that local law enforcement agencies had
little, if any, substantial information to offer, we proceeded
with our investigation. We uncovered a trail of assumed
names and fictitious addresses left by the suspect to
confuse authorities. Over time, however, using myriad
investigatory resources we determined the suspect
had moved to San Pedro, California. We subsequently
ascertained his place of employment and his current address.
Based upon our information California authorities arrested
the suspect on a fugitive warrant and he was returned to
Georgia to stand trial and ordered to make full restitution to
his former employer.

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THE DEFENDER / 2019, VOLUME 3
In another instance, I became involved in a conspicuously
dubious rape case. In this matter, the state had charged the
defendant with aggravated sexual misconduct based solely
upon the statements of the complainant and her female
companion who had been with her and the defendant at the
time of the alleged incident. The complainant stated the
defendant at gunpoint forcibly raped her on their first date.
My investigation revealed that the complainant and
defendant had been engaged in an intimate relationship for
at least a month before the alleged incident. Pursuantly,
we located several corroborating witnesses who refuted
the complainant's allegations. Further, we unearthed
information about the complainant being involved in
an automobile accident on the date of the purported
crime in which she was driving the defendant’s vehicle.
Since he did not have insurance, the defendant asked her to
pay for the damages to his car and the owner of the other car
involved in the collision. When she refused, he threatened
to reveal the details of her promiscuity as well as that
of her companion’s to their parents. It was this threat
that prompted and motivated the complaint of rape against
the defendant.
When the aforementioned facts were disclosed to the
prosecutor, he agreed voluntarily agreed to dismiss, with
prejudice, the criminal charges against the defendant.
Resume fraud is a type of deception that is appearing with
increasing frequency. One notable case involved Janet
Cook of The Washington Post. Cook was a reporter who
won a Pulitzer Prize based on a fabricated story. Later
investigation revealed the truth and exposed the fact that
she had falsified her credentials at the time she applied for
her position at The Post.
CONTINUED : PROFESSIONAL INVESTIGATORS
Background investigations on employees become even
more important in the light of the increasing number of
lawsuits that have resulted in judgments against employers
who made no effort to check the credentials of a new
employee. In the typical scenario, the employee becomes
involved in a crime against a fellow employee or customer.
The subsequent investigation reveals a history of violence,
criminal activity, deception and other forms of illegal and
unethical conduct that could have been discovered if the
employer had taken the initiative to diligently examine the
employee’s past before they were hired. In some such cases,
the courts have awarded significant judgments against the
employers based on their negligent hiring practices.
In summary, I suggest that when you consider a case for
investigation you should be as explicit as possible. Define
the scope of the investigation and set limitations. In a tort
action, for example, if liability rather than damages is your
focus, say so. Make sure your investigator understands the
specific information
you want and define your
needs in writing. Be sure to set a timetable
for completion and a maximum allowable budget. On
more protracted investigations or complicated cases, give
assignments in phases. Sometimes a set of facts you
discover early in the case will make the remainder of the
investigation unnecessary.
Assign any follow-up investigation as soon as possible.
Don't wait until contacts fade and witnesses develop
amnesia. Be sure to point out any flaws or omissions, since
any feedback you can provide will most likely enhance
results. Despite popular belief, an investigator's job is based
upon relentless determination and thankless drudgery.
Unfortunately, you don’t always get what you pay for. An
investigator’s hourly billing rate is not always a measure
of quality. Some investigators are under the misconception
that the attorney merely passes the cost on to his client.
Therefore, an investigator’s invoice, which simply states
“For professional services rendered: $3,000” should be
rejected. Use investigators who maintain careful time and
expense records in a form suitable for sharing with your
clients. This is expected of lawyers and unquestionably
must be required of investigators.
Insist upon detailed invoices, which itemize each
expenditure and service. Your investigator should always
be cost-effective and have your budget in mind. Be certain
to ask for the investigator's list of fees for any flat-rate
services or expenses (such as mileage, photographs, online
data research fees, etc.). Find out how much you are being
charged for travel time as opposed to field investigation.
Simply stated, be sure you understand all of the costs
involved.
While a commendable investigation can shape the outcome
of a case, your choice of a proficient investigator will
indubitably shape the outcome of the investigation.
Jeff Wax is a Mitigation Specialist and
Criminal Defense Investigator at
Atlantic International Associates in
Cypress, Texas. The focus of Jeff’s work
is in conducting life history and fact
investigations for defendants facing
capital punishment and juveniles facing
life sentences in the state of Texas. He can be
reached via email at texaslegalinvestigations@
gmail. com or by phone at (207) 838-7260.
NEW
29
2019, VOLUME 3 / THE DEFENDER
DWI
LAWS
BY DANNY EASTERLING
NOW A DEFERRED ADJUDICATION questions regarding the constitutionality, as well as the
For the last 16 years, the Legislature has been application and collection, of this new ��” structure.
considering a bill to allow Deferred Adjudication for The statute reads as follows:
DWI cases. The 86th Legislature passed a version,
now Tex. CCP. Art. 42A.102, that operates as follows: TEX.TRANS.CODE § 709.001
Deferred is available only for �����; offenders with a TRAFFIC FINE FOR CONVICTION OF
BAC of under .15, and this may be non-disclosed upon CERTAIN INTOXICATED DRIVER OFFENSES
receiving a discharge and dismissal. Unfortunately for (a) In this section, “offense relating to the operating
enhancement purposes, DWI deferred is treated like of a motor vehicle while intoxicated” has the
a conviction similar to assault-family violence cases. meaning assigned by Section 49.09, Penal Code.
The bill provides an ignition interlock device is required
on DWI deferred unless the judge waives it following an (b) Except as provided by Subsection (c) , in addition
alcohol/controlled substance evaluation. to the ��; prescribed for the ����; offense,
a person who has been ���� convicted of an
The lobbyists for TCDLA have consistently ���� offense relating to the operating of a motor
against this “false” type of deferred since it can still be vehicle while intoxicated shall pa������
used as a future enhancement.
(1) $3,000 for the ��� conviction within a
ALL SURCHARGES ARE REPEALED 36-month period
Chapter 708 of the Texas Transportation Code is (2) $4,500 for a second or subsequent
repealed. conviction within a 36-month period; and
(3) $6,000 for a ��� or subsequent conviction
HB 2048
if it is shown on the trial of the offense that
This bill eliminates the Drivers Responsibility Program
an analysis of a specimen of the person’s
as of September 1, 2019, meaning any unpaid
blood, breath, or urine showed an alcohol
surcharges on the effective date will no longer be an
concentration of 0.15 or more at the time
obligation, and every driver with a suspension on the
the analysis was performed.
effective date will have it lifted. It is estimated that a
million Texas drivers will have surcharge suspensions
(c) If the court having jurisdiction over an offense
lifted on their license. As written, the bill provides for
that is the basis for a ��; imposed under this
what is basically a new ��” for DWI type convictions on
section makes a ����that the person is
or after September 1. There is no provision for a driver’s
indigent, the court shall waive all ��� and costs
license suspension going forward in any circumstance,
imposed on the person under this section.
and the bill provides for an indigency determination to
be made by the sentencing judge. There are obvious
30
THE DEFENDER / 2019, VOLUME 3
All criminal defense lawyers need
to be aware of a huge change in
the law and implications it has for
defending Marijuana and/or THC cases.
The governor signed HB 1325 on June 10,
2019 legalizing hemp production in Texas.
Hemp is the same plant as marijuana
(Cannibis sativa) and is legally
differentiated from marijuana by THC.
The important definition now reads: the plant (seeds, stalks), illegal parts
“hemp” means the plant Cannabis
sativa L. and any part of that plant,
including the seeds of the plant and
all derivatives, extracts, cannibinoids,
isomers, acids, salts of isomer,
whether growing or not, with a delta-9
tetrahydrocannabinol concentration
of not more than 0.3 percent on a dry
weight basis.
No labs in Texas have a quantitative
method for THC, the sort of method a
laboratory would use to determine the
concentration of THC in a sample. Until
they do, lab analysts will not be able to
testify that they can distinguish between
a substance that meets the legal definition
CONTINUED : BEST DEFENSES
of hemp and any other THC product. The
burden of proof on this issue is always on
the State and never shifts to the defense.
Any crime labs will have to purchase new
instrumentation and change certain testing
procedures to be able to supply that new
evidence to the courts before criminal
cases involving marijuana or THC could
successfully be brought to trial.
Many district attorney offices across
the State may postpone any such
prosecution until the labs can provide the
required evidence.
OUR BRAVE
NEW
HEMP/THC
WORLD
by Danny Easterling
Nicolas Hughes from the Harris County
Public Defender’s Office summarized this
problematic issue:
“I think this problem is larger than
simply ‘is this product hemp or is
it marijuana’ but also a question of
whether the labs could ever differentiate
between Cannabis products as required
by the law. There are legal parts of
of the plant (leaves, flowers), and
super double-plus illegal parts of the
plant (resinous extractive from the
specialized hairs called trichomes).
Products/derivatives/anything derived
from the legal parts of the plant are
legal, illegal parts of the plant are
deemed marijuana (misdemeanor on
up), and super double-plus illegal parts
of the plant are treated as other THC
(state jail felony and up).
The method that labs use here (and I
think everywhere across the state) is
summarized as follows:
1. Look for plant material. If there
is identifiable plant material, try to
identify it under a microscope.
2. Detect the presence of THC in
the product.
Here’s the problem. Literally every part
of the plant contains THC. Hemp seeds,
stalks, leaves and flowers contain THC.
So what happens if you have a product
derived from the Cannibas plant that
contains no identifiable plant material
- say a seed cake or oil? Is testing for
THC good enough to differentiate
between what sort of Cannibas product
we are talking about under the law?
Of course not. The lab needs to prove
the origin.
I got a lab manager to admit, in
writing, that the laboratory’s standard
operating procedure does not have the
capability of distinguishing between
types of Cannabis products under the
old standards.”
Nicolas reports that he filed a complaint
with the Texas Forensic Science
Commission which resulted in him being
selected to serve on a task force. The
Task Force Group for Analytical Methods
for Marijauana will be addressing these
important issues going forward.
All of this brings us to the moral debate
of whether tremendous amounts of our
tax dollars and resources should be spent
on the testing and prosecution of our
citizens who possess an herb (plant based
or extract).
Danny Easterling
is a partner at
Easterling &
Easterling P.C
and has been in
practice for 39
years. He is Board
Certified in Criminal
Law, a Past President
of HCCLA in 1999-2000 and HCCLA
Lawyer of the Year in 2003. He is certified
for appointment to Capital Murder and First
Degree felony cases, AV Preeminent Rated by
Martindale Hubbell and Superb Rated 10 by
AVVO. He has been voted by his peers every
year for the past 17 years as a Texas Monthly
magazine "Super Lawyer." He currently
serves on the Board of Directors of the Texas
Criminal Defense Lawyers Association.
HEMP, MARIHUANA & THE
HARRIS COUNTY DISTRICT
ATTORNEY’S OFFICE
REDEFINITION OF MARIHUANA
PURSUANT TO THE NEW HEMP LAW
The Law in the State of Texas mandating the proof
necessary to prove criminal possession of marihuana was
substantially altered as a direct result of new legislation
passed during the last session of the legislature. This
change in State law, redefining the legal definition of
what, in fact, constitutes “marihuana” has resulted in a
modification to the policy of the Harris County District
Attorney’s Office (HCDAO) with respect to the filing
and prosecution of marijuana charges.
On June 10, 2019 Governor Abbott signed into law,
House Bill 1325 which immediately became effective
as of that date. The new law created the State of Texas’
Hemp Production Plan enabling Texas farmers to legally
grow and harvest the hemp plant as a legislatively
approved agricultural commercial crop.
Texas criminal jurisprudence was impacted by this new
law because Hemp and Marihuana are the same exact
plant, to wit: Cannabis Sativa L., with the sole difference
being the amount of delta-9 Tetrahydrocannabinol
(THC) content in any given plant at issue. The definition
of Hemp in the new law necessarily redefines marihuana
in the following manner:
Hemp is defined by section 121.001 of Texas Agriculture
code to mean Cannabis Sativa L. and any part of that
31
2019, VOLUME 3 / THE DEFENDER
BY
DAVID
MITCHAM
A
P
plant, whether growing or not, with a THC concentration
of not more than .3 percent on a dry weight basis.
Hemp and the THC contained in hemp are now excluded
from the definition of a “controlled substance” for
the purposes of the Texas Controlled Substance Act
and is not prosecutable as “Marihuana”. The growth,
production, sale and use of Hemp will be regulated by
the State as a legal consumer product.
Marijuana, as defined by the Controlled Substance Act
section 481.002 (26) “means the plant Cannabis Sativa
L. whether growing or not, the seeds of that plant and
every compound manufacture salt, derivative, mixture
or preparation of that plant or its seeds.” The term
“Marihuana” does not include Hemp.
Therefore, if the THC concentration of the Cannabis
Sativa L. plant is less than .3 percent, then the plant
is Hemp and not a controlled substance. If the THC
concentration is over .3 percent the plant is Marihuana
and is contraband.
Pursuant to the new law, a properly certified laboratory
test result is now going to be necessary in order to
prove, in a Court of Law, whether the plant substance in
question is either contraband marihuana or legal Hemp.
32 33
THE DEFENDER / 2019, VOLUME 3

2019, VOLUME 3 / THE DEFENDER

HARRIS COUNTY DISTRICT ATTORNEY’S Pending cases filed prior to June 10, 2019 will be reviewed
by the Harris County District Attorney’s office in order to
OFFICE FILING POLICY determine a just resolution consistent with the law and
As a consequence of the foregoing and in order to follow the with a proper regard to the tenants of fundamental fairness.
law as now enacted by the Texas Legislature and the Office The Chief Prosecutor in the Court where such cases are
of the Governor, the Harris County District Attorney’s pending may be consulted by Defense Counsel as to the
Office will not accept criminal charges for misdemeanor State’s position in any particular case.
Possession of Marijuana (4 oz. and under) without an
admissible lab test result proving that the evidence seized PRACTICAL CONSIDERATIONS
contains a THC concentration of over .3%.
UNDER THE STATE OF THE NEW LAW in g a u s
er
These changes in the Law raise certain practical concerns m a k e E -F il re
Felony marijuana charges will be evaluated for filing wor k t o
ther e a
for the criminal defense practitioner in advising their A s w e a ll a b le process,
purposes on a case by case basis at the discretion of the r at the
Ha r r is
n d ly a n
d wo r k
errors.
Chief Prosecutor on duty at the Intake Division of the clients as to what course of action they should employ, n a b usy yea ( D C O ) . fr ie s o f fi li n g s fo r
e e ff ic e rn
if they are detained and suspected of misdemeanor It h a s b le r k ’s O s t il l r e t u
District Attorney’s Office. Based on the available evidence t y D is t r ic t C v e y , c r im in a l om Janu
ary
and the amount of felony contraband in question and in the marihuana possession. Coun
u r r ic a ne Ha r
t e d in r e je c t io n r a t e fr b e lo w
of H lo c a the r is
In li g h t s a r e s t il l A lt h o u g h f t h is y e a
proper instance, such charges may be taken while lab test is t r ic t c le r k
ourth o u s e
eptem b e r o
reduced
Presently, securing a properly authorized and certified deputy d nd the c t h rough S can be
results are still pending. Or, in the alternative, the filing of lo c a t io n
s a r o u
e y o u w t h a t it
o n s fo r
lab test result for THC content is very problematic as the several li k e t o g iv % we kno m on reas
felony charges may be postponed pending the results of . We w
o u ld wha t 5
most c o m
c o m p le x are and er. The
a properly conducted laboratory test certifying the THC forensic labs in Texas, by and large, do not have the current o f w h ere we d e p u t y fu r t h s fo ll o w s :
capacity to conduct such tests and produce such admissible a roadm
ap
A s id e fr o m r e t u r n are a
r. e correct;
ms, ther
content of the evidence submitted. w e o ff e
lab results. However, it is reasonably foreseeable that s e r v ic e s t h e courtroo t is m is s in g o r in
c le r k s in CO t h a umb e r ng does
d is t r ic t of the D 1 he case n n t h e fi li
MISDEMEANOR MARIHUANA sometime in the future the forensic science industry will
r depar
t m e n t s
in t h e c
r im in a l T
e D e fe n d
a n t ’s n a m e o
o n fi le .
DIVERSION PROGRAM rise to the lucrative occasion and come up with a laboratory are othe
im p o r t a
n t r o le 2 T h
atch the
cas e in fo r m a t io n
name w
as
analysis protocol that can comply with the requirements p la y a n not m in g o f the a se
ystem . e spe ll take, p le
The Harris County Misdemeanor Marihuana Diversion of the new State Law. In that event, law enforcement ju s t ic e s If t h s p e ll e d a t in
Program (MMDP) will remain in effect in the following personnel may be able to provide sufficient evidence to adverten
t ly m is ment so s
t in t h e fi li n g c o m
E - F il in g Cou r fa c t in t w it h
manner: When a peace officer detains a suspect on meet the criteria of probable cause and the HCDAO may , t h e Supreme e n t e r t h is c le r k c a n a s s is
0 1 7 in a l t r ic t
suspicion of possession of misdemeanor marijuana, the thereafter reconsider the filing of charges. ary of 2 t o f C r im p u t y d is je c t io n ;
In F e b r u w it h the Cour t h e the de out a re
officer should inform the suspect that the MMDP is still an of Tex a s a lo n g e n t s t o fi li n g w it h
amendm f the number
;
option in which the suspect may participate. By participating and successfully completing the MMDP, adopted fi li n g o ct Court is s in g ;
the Unhappy Accused, suspected of Marihuana possession,
A p p e a ls
u le s fo r e le c t r o n ic
a n d a t ed 3 In c o r r e
s ig n ature is m
ch the
s t a t e w id
e r
C o u n t y was m
l 4 A ttorne y ’s
t it le m ust mat
If the suspect elects to enter into and complete the is a
can avoid even the possibility of future charges and ts. Harr a ll C r im
in s c r ip t io n g fi le d .
MMDP then no case will be filed against the suspect.
documen
e le c t r o n ic fi li n g in
. A lt h o u g h 5 The de
t t it le t h a t is b e in
thereby obtain a sense of timely closure for the incident t o b e g in 1, 2018 documen
In this circumstance, no lab test, and its attendant delay, in question, without ever risking the prospect of a criminal o n J anuary a w o r k in
Courts has bee
n
ke
would be necessary, as long as the suspect complies with
and completes the program. This would allow a person
record.
im p le m e n t a t io n
, we a
n t ic ip a t e e v e n fu
rther
resen t , D C O C rim ina l I n ta take is lo cated a
t 1301
stays
progress t o c o me. At p C r im in a l In T h is s e c t io n
suspected of misdemeanor marijuana possession the in t h e y
ea r
in a l C o u
rt s
, 1 s t fl
oo r .
r ic t c le
rks
option to expeditiously resolve the case with no charges changes is C o u n t y C r im y o f F r a n k li n h d e p u t y d is t if t s
e Har r m a jo r it y w it ree s h
filed rather than wait for the results of a lab test. a ll o f t h n ic and the e v ery bus e c lo c k in t h
r e e le c t r o ll . T h e r ound t h sect n.
io
at Law a ic t C o u rts as we g w o r k in g a r h e D .A . In t a k e
in a l D is t
r ts be in w it h t 19, the
t h e C r im d ocumen k eep up t e rs of 20
On the other hand, if the suspect elects not to go into the David Mitcham is the First Assistant p a p e r
s u b m is s
io n . t o
rst thre
e q u a r 47
a r e s t il
l some
In t h e fi iv e d 3 1 ,4
program, or subsequently fails to comply and complete the to Kim Ogg, the District Attorney of t o e le c t r o n ic a t io n k e s e c t io n r e c e n ew
t r a n s fe r
red in fo r m l In t a
and 39
,7 4 8
program, then law enforcement personnel may proceed, Harris County. He was licensed by d p e r t in e n t b s it e C r im in a c a s e s
n fi n we ny
the State Bar of Texas in 1979. From You ca the DCO w F e lo
within the two year misdemeanor statute of limitations, to E -F il in g o n r it can ne r cases.
obtain the necessary laboratory test result evidence to prove 1980 to 1984 he was a Harris County r e g a r d in
g
e e -F il e ic o n o
& M is demea o n
th ov
prosecutor under then District Attorney in g o n le t e x a s .g
b y c li c k w w w .e fi use
D C O P ro ba b l e C a
the THC content in the seized evidence; and thereafter Johnny Holmes, and assigned to the Trial a t a l/ re
enc e d / C r im in c le r k s a
the District Attorney’s Office may accept misdemeanor Bureau. From 1984 to 2016, he was actively b e r e fe r o m / Common t o p u t y d is t r ic t r
t c le r k .c be se n t Caus e d e g Ce e n t
marijuana possession charges, resulting in the issuance of engaged in private practice of law, as a criminal defense attorney. h c d is t r ic Q u e s t io ns can g @ P r o b a b le J o in t P r o c e s s in
h a s
.a s p x . lF il in the io n
a court summons or an arrest warrant for the suspect to He was elected and served as President of the Harris County E fi le F A Q s k a t C r im in a lo c ated at in t o . T h is s e c t
e h e lp d
e an Ja c bonds
appear in court. Criminal Lawyers Association (HCCLA) from 1988 to 1989 t h e e -f il . a t 7 00 N. S ,0 0 0 p r e -t r ia l
t c le r k .c o
m 22
and was later recognized by his peers in HCCLA with the h c d is t r ic d over 2019.
processe e ptember
The program’s previous exception of filing charges for “Attorney of the Year Award” in 2001 for “Dedication to the a n u a r y -S
Principles and Ideas of American Justice.” For more than fr o m J
misdemeanor possession of marijuana while in a drug- 30 years, he has been Board Certified in Criminal Law by
free zone will no longer apply. All misdemeanor offenders the Texas Board of Legal Specialization.
should be offered the option of MMDP.
34
THE DEFENDER / 2019, VOLUME 3
DCO Criminal Customer Service
This section is located at 201
Caroline, 1st Floor. Even with
the implementation of E-Filing,
the customer service section
still handles many criminal
background checks, and pro se
filings, including occupational
licenses, nondisclosures, motions,
affidavits, subpoenas, paper
certified copies, and assists with
daily inquiries, including those
with no criminal content.
DCO Criminal Collections
Criminal Collections is now
located at 1201 Franklin, 1st
Floor. If a Defendant is requesting
a payment plan for paying
court costs and fines, they can
set up the payment plan with
the Criminal Collections section
as they are leaving court.
DCO Criminal Post Trial
Criminal Post Trial section is
located at 1301 Franklin, 1st
Floor. This section deals with
issues for criminal conviction
relief such as writs of habeas
corpus and appeals. Many of
the records needed to process
these requests are located at the
Records Center at 5900 Canal
Street. Hopefully when the DCO
moves back into the Criminal
Justice Center, the records will
be relocated as well.
The Bond Forfeiture section is
also located with Post Trial. If
a bond is forfeited, a warrant
is issued and a civil case is
created. The bond forfeiture
can be recalled or deleted if
the NISI has not been signed
and the Sheriff’s Office has not
acknowledged the warrant.
Otherwise, the bond has to be
reinstated and the civil case
dismissed. This section initiates
the case and generates the NISI
and citation packet.
35
2019, VOLUME 3 / THE DEFENDER
Supervisor Criminal Probable Cause
DCO Data Control Lawanda Smith 832.927.6671
Currently, Criminal Data Control Criminal Support Manager
Carnetta Washington 832.927.5941
is located at 5900 Canal Street
in the Records Center with Supervisor Criminal
Customer Service
plans to relocate to the Criminal Rena Coker 832.927.5901
Justice Center.
Supervisor Criminal Post
Trial Leslie Charles
832.927.5942
Supervisor Criminal Collections
Susana Campos 832.927.5921
Manager Criminal Data Control
Sylvia O’Campo 832.927.5771
Judith A. Snively
Chief Deputy
of Courts
Office of
Harris County
District Clerk
Updated Thumb Print Scanners judith.snively@
The DCO has provided brand hcdistrictclerk.com
new thumbprint scanners (832) 927-5777
to the Criminal District and
County Courts at Law after
many years of frustrating
malfunctions with the old
scanners, often resulting in
pulling out the old ink pads.
The new ones are smaller
and more precise.
So as you pass through the
Courts, please remember to
smile at the deputy district
clerks when you ask for
their assistance. They have
a lot of responsibilities
keeping up with all that
they do in the courtroom,
as well as staying current
with new data processes.
The DCO is here to assist.
Criminal Courts Manager
Christine Baldwin 832.927.5971
Supervisor Criminal
•
District Courts TO PUBLISH AN ARTICLE, CONTACT ROBERT PELTON @
Kathleen Tickle 832.927.5972 713-524-8471 rpeltonlawyer1@aol.com
Supervisor Criminal County
••
Courts at Law TO PLACE AN AD, VISIT HCCLA.ORG/DEFENDER
Jessica Ordon 832.927.5974 Full Page Ad $500/Issue - $1800/YR 1/2 Page Ad $300/Issue - $1080/YR
Supervisor Criminal Intake 1/4 Page Ad $175/Issue - $630/YR Business Card AD $99/Issue - $356/YR
Kathy Emerson 832.927.5871
D I S T R I B U T I O N 10 0 0 C O P I E S P E R I S S U E / 4 I S S U E S P E R Y E A R
D E F E N D E R
2019 / VOLUME 3

THE DEFENDER
PO Box 924523
Houston TX 77292-4523