2018

VOLUME 2

YOUR CLIENT

Learn more starting on page 25

 WHAT’S INSIDE 2018, VOLUME 2
CLE EVENTS
WINNING WARRIORS SEMINAR
OCT 19

DONALD DAVIS SEMINAR

NOV 8
CLE EVENTS
2
ANY QUESTIONS?
Visit the calendar at www.hccla.org 4 OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS

A WORD FROM YOUR PRESIDENT

BY DOUG MURPHY 5
8 WINNING WARRIORS

CELEBRATING THE ALL-STARS OF THE

DEFENSE BAR: 48TH ANNUAL BANQUET
BY CHRISTINA APPELT
12
16 HCCLA NEWS ROUND UP
WELCOME NEW MEMBERS
SPECIAL ELECTION ISSUE DETAILS

ADDICTION IS AN ILLNESS...
NOT A CRIME
BY CHRIS MCKINNEY 17
21
THE RISKS OF A COLORADO
CANNABIS VACATION
BY D. CHRIS HESSE

WHY BAD THINGS KEEP HAPPENING

TO YOUR CLIENT WITH PTSD...
AND HOW TO STOP IT
BY PATRICK F. MCCANN
25
28
SAM HOUSTON
AND THE SEPARATION OF POWERS
BY JOSEPH W. VARELA

32
THE EXTRAORDINARY MEASURES
TAKEN TO COVER UP A LIE
BY STEPHEN LE BROUQ
 4 C. ANTHONY FRILOUX 5
STUART KINARD
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

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

past presidents
LORI BOTELLO DAVID R. BIRES
ADS & DISTRIBUTION WOODY DENSEN
ROBERT PELTON
CHRISTINA APPELT
1971-2018 WILL GRAY

DESIGN & LAYOUT

EDWARD A. MALLETT
CAROLYN GARCIA a word from your president
Doug Murphy
BROCHURE BUILDERS
B
 RANDI DELOACH JACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM
CLYDE WILLIAMS
ROBERT PELTON
CANDELARIO ELIZONDO
ALLEN C. ISBELL
DAVID MITCHAM Dear Members of HCCLA- I know I would not be the lawyer I am today
without this opportunity. It is incumbent on all
JIM E. LAVINE It is with great honor that I carry the baton for the of us to ensure that all lawyers receive similar
RICK BRASS next year passed on by many great lawyers before opportunities to learn what has been passed down
to us. There are great lawyers, and lawyers who
2018-2019 MARY E. CONN me that led HCCLA to become the largest local
are working to be great. I recall as a young law
Hccla officers & board KENT A. SCHAFFER
DAN COGDELL
and most robust criminal defense bar in the nation.
The legacy of HCCLA has really been created student attending an HCCLA cross examination
seminar featuring Terry MacCarthy. On the stage
JIM SKELTON
by the legacies of Percy Foreman and Richard
“Racehorse” Haynes and their many proteges. was also Racehorse Haynes. I was completely
GEORGE J. PARNHAM awestruck by their presence, and the substance
PRESIDENT EXECUTIVE DIRECTOR The legal mentoring and experiences Percy and
DOUG MURPHY CHRISTINA APPELT GARLAND D. MCINNIS of their presentations. If the Rolling Stones had
Race provided all their many proteges really took
ROBERT A. MOEN been playing next door for free, you could have
root and spread to all lawyers in Harris County
PRESIDENT ELECT BOARD OF DIRECTORS LLOYD OLIVER and throughout Texas. Many of us are the lawyers not lured me away. That experience made a lasting
NEAL DAVIS CORDT AKERS DANNY EASTERLING we are today due to Percy and Race’s generational impression on me and helped instill and create
JIMMY ARDOIN WAYNE HILL reach. Before going to law school, I remember good cross-examination techniques and habits
VICE-PRESIDENT STACI BIGGAR that I still employ today. Another memorable and
RICHARD FRANKOFF reading Texas Lawyer.
MARK R. THIESSEN LORI BOTELLO impressionable experience was the camaraderie
W. TROY MCKINNEY
KATE FERRELL of the HCCLA bar. I remember meeting a
CYNTHIA HENLEY All the great Texas civil and
SECRETARY JUSTIN C. HARRIS friendly lawyer named Danny Easterling who was
STANLEY G. SCHNEIDER interested in helping soon-to-be lawyers. Danny’s
DAVID RYAN GEMAYEL HAYNES
JORDAN LEWIS
WENDELL A. ODOM, JR. criminal defense trial lawyers— encouragement made me feel welcomed to a band
ROBERT J. FICKMAN
TREASURER W. TROY MCKINNEY the really colorful and truly of lawyers before even graduating law school.
STEVEN H. HALPERT RAND MINTZER PATRICK F. MCCANN
These lasting impressions that HCCLA made
PAUL M. MORGAN MARK BENNETT interesting lawyers— on me need to be passed onto to the next
PAST PRESIDENT TODD OVERSTREET JOANNE MUSICK
TUCKER GRAVES DAMON PARRISH II
were all from Houston. generation of lawyers that are full of passion and
NICOLE DEBORDE desire to be the next generation of criminal
JED SILVERMAN EARL D. MUSICK defense lawyers to carry the baton for HCCLA.
J. JULIO VELA
HCCLA has an abundance of great lawyers.
CHRISTOPHER L. TRITICO And many great teachers. For 18 ½ years, I had My goal as your HCCLA president is to work as
JOE VINAS hard as I can to fulfill 3 goals on top of carrying
T.B. TODD DUPONT, II the great benefit of a great mentor, friend and law
SARAH V. WOOD out the mission of HCCLA.
CARMEN M. ROE partner in Gary Trichter.
JOANNE MUSICK
TYLER FLOOD
 6 7
PROVIDE MORE SUBSTANTIVE PROMOTE CIVILITY AND
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

TRIAL SKILLS CONTINUING
LEGAL EDUCATION
First, we need to provide more substantive trial
skills continuing legal education. HCCLA has
many living legal legends that can share their
wisdom and experience. Tyler Flood stepped up to
the plate as CLE Curriculum Chairman. Seven days
after taking office, Tyler created a great lineup of
speakers for the Winning Warriors: Earning Your
Stripes seminar. It was a great success and also
provided HCCLA a financial boost to continue
carrying out the mission.
GROW AND INVOLVE
OUR MEMBERSHIP
Second, we need to grow the membership
of HCCLA. Not just increase the size of our
membership (although I did audaciously pledge to
acquire 100 members in the first 100 days of taking
office), but a huge focus is engaging the robust
resources of experienced lawyers to mentor and
teach younger lawyers. Doing so will provide Sarah
Wood and Damon Parrish II, the passionate leaders
of the HCCLA “Second Chair Program”, with more
experienced lawyers to expand and improve the
reach of this important program.
CONTINUED : A WORD FROM YOUR PRESIDENT
PROFESSIONALISM IN HCCLA
Third, I want to promote civility and
professionalism in HCCLA and in our practices.
Our diversity is our greatest strength, but hostility
is our greatest weakness. Make no mistake,
fervent debate is healthy. Being civil in the face of
adversity is not a sign of weakness, it is a sign of
strength. It also doesn’t mean we as an organization
will sit idly by and let transgressions go unchecked,
it just means that we will engage in a professional
way that allows us to be part of the solution, and
not part of the problem in a scorched earth style
attacks. There will never be any censorship or
restriction on the HCCLA list-serve. Free speech
allows a free marketplace for the best ideas to rise
to the top. A true democracy that we all believe
in provides the true freedom for free speech and
creative thinking. The best ideas survive
by meritocracy. Sometimes the manner in
which some folks respond turns off other people.
You have the right to choose whomever you
want to be.
To quote a Florida lawyer and mentor of mine,
Flem Whited: “Be yourself, unless you is losing,
and/or you is an asshole.” And nobody likes an
Asshole. We all believe in our cause, we have
significant differences of opinions on how to go
in providing our input for improving the CJC.
It’s certainly a long laundry list.
ANNUAL HCCLA BANQUET
Our annual banquet was a great success due to
all the attendees and the hard-working efforts of
our esteemed executive director Christina Appelt.
Christina secured a new and beautiful venue in
downtown that will allow our continued growth
as the banquet continues to grow and evolve.
Thank you, Christina, for everything you do for
us, and congratulations to all the deserving award
recipients. It was a special night for us all!
HARRIS COUNTY PUBLIC
DEFENDER’S OFFICE
On June 12, 2018, the Harris County
Commissioners placed on their agenda to
determine the continued employment or
reclassification of Harris County Public Defender,
Alex Bunin. We learned of this in Houston
Chronicle on the Friday before the Tuesday
commissioner’s meeting. HCCLA rallied and
fought for an independent public defender’s
office. We packed commissioner’s court and it
was standing room only with many people
a public defender whose work performance and
integrity has never been questioned in his 8 years
as the Harris County Public Defender.
I would like to thank Pat McCann and Nicole
DeBorde for their assistance, Mac Secrest as
member of PDO advisory board, David Gerger on
behalf of NACDL, and David Moore on behalf of
TCDLA for appearing and speaking in support of
Alex Bunin and the Public Defender’s Office.
Mac’s sage wisdom saved the day by persuading
the commissioner’s court to pass a motion requiring
the PDO advisory board to conduct an investigation
as to whether the information disclosed by Alex
Bunin violated any law. David Moore had the best
quote of the day in his rebuttal to Commissioner
Cagle’s question of whether he was old school in
revealing the names of his clients. David said, with
his thoughtful east Texas drawl, I’d like to think
I’m old school, but if I was, I’d be drinking from
segregated waters. It was a poignant moment that
encapsulated the issue of why Alex released the
information to a study on racial discrimination in
the juvenile courts.
This will be an ongoing and continuing issue, and
we will keep everyone posted. We will continue
to need everyone’s involvement in maintaining an
independent public defender’s office.
DECLARATION OF

about achieving our goals. In a time of disunion, standing in the hallway.

We also created a federal component to HCCLA
as some of our greatest lawyers who practice
almost exclusively federal court are also involved
in HCCLA. Jimmy Ardoin agreed to take the
reins as chairman of this newly created federal
committee to bring more federal lawyers into the
fold. Other good news is that as of June 28th we
acquired exactly 100 members since taking office
on May 10th, making good on my pledge. Will
still have a long way to go to get our membership
numbers back to where they belong. Thanks to all
the hard-working board members contributing
their time and efforts in making this possible.
we need to unify and work together.
UPDATE ON CJC
There will continue to be challenges logistically
with our courthouses. We all need to work together
to be part of the solution, not the problem to make
things safer for all involved. Thanks to former
HCCLA President Chris Tritico for leading the
charge behind voicing solutions to the Harris
County Commissioners Court on needed changes
for the CJC. Progress has begun with the jail
dockets moving back to top 4 floors of the CJC.
This is much safer for everyone. We will continue
to work with the judges and all other stakeholders
INDEPENDENCE READINGS
Commissioners Jack Cagle and Steve Raddack
took issue with Alex providing public
Thanks to Robb Fickman for creating what has
information to the litigants in the bail bond
become a tradition of reading the Declaration of
lawsuit and also providing information regarding
Independence just before July 4th. This tradition
juveniles to the Texas Criminal Justice Coalition
has spread not just throughout every county in
investigating racial discrimination in juvenile
Texas, but throughout the nation by criminal
courts. The commissioners are clearly retaliating
defense lawyers. It’s a patriotic way of reminding
against Alex not just over the bail bond lawsuit,
everyone about what it truly means to be American,
but also due to Judge Phillips’ well-publicized and
and why we enjoy the constitutional protections.
embarrassing recusal on a juvenile case. Shortly
We must always be vigilant in protecting these
after Judge Phillips’ recusal, a Public Information
freedoms.
Act request was made by former Harris County
DA investigator Kenny Rogers (apparently at the
behest of Commissioner Cagle) to the PD’s office
for Alex Bunin’s emails. Interesting timing for
 8 9
THE DEFENDER / 2018, VOLUME 2
Julio Vela ended the year with a bang, securing a NG
in CCCL11 on a .14 DWI, poking holes in the cop’s
credibility during his cross. JV then learned W is
expecting their daughter, so there won’t be any poking and
banging for a while.
••••••••••••••••••••••••••••••••••••••••
Alex Azzo secured an acquittal in DC230 on an Attempted
Sexual Assault. Word is State didn’t fully argue case
in closing and Alex, confident in his work, waived close.
TC submitted case to jury and did not permit State to
argue again. Gutsy.
••••••••••••••••••••••••••••••••••••••••
Patrick McCann, HCCLA Mentor of the Year, saw
a satisfying end of his years long fight to end TX death
penalty cases involving intellectually disabled Ds
when HCDAO agreed to a term of years for D after
SCOTUS overruled Briseno.
••••••••••••••••••••••••••••••••••••••••
Justin Harris got a big NG in CCCL2 on AFV. D
accused of biting CW (that’s love in 21st Century), but
Justin caught CW in a string of lies and RD bite marks
were self-inflicted. Justin followed up with 2 word verdict
in CCCL1. D charged with possessing device with intent
to falsify drug test. After arrest on parole violation,
HC jailer finds a plastic bottle with warm yellow liquid
tied to penis with dental floss. Ouch. D says bladder issues
and uses discreetly. Justin did not tell State it’s better to be
pissed off than pissed on.
••••••••••••••••••••••••••••••••••••••••
Sean Darvishi got NG on a workplace assault in
CCCL5 where CW said repeatedly CW felt no pain.
Sean and Brian Ayson earned a NG in CCCL8 on a .07
breath test DWI. Tech said it RD that D was over .08
at time of driving. Sean followed up with Justin Harris
(that guy, again?) for DV on .09 breath DWI, with another
tech saying there was RD. Sean went solo for NG on .06
breath DWI in FBCCL2. Why are we having to trying
these cases again?
••••••••••••••••••••••••••••••••••••••••
Brian Ayson also got tech to admit RD on .12 breath
DWI in CCCL10, and also got NG. Brian then scored
NG in FBCCL4 on .12 DWI where D was found stuck
on railroad tracks.
••••••••••••••••••••••••••••••••••••••••
Priscilla Bush and Alex Houthuijzen got a MNT granted,
flipping a guilty plea in DC230. D’s plea was involuntary
due to alleged misconduct by bailiff.
Brad Walters in CCCL4 really needed to win for D to
keep job, so initially agreed to PTI. Paid for interview,
approved, but DAs have no contract 3 months and
2 resets later. Brad finds unshared Brady notice in State file,
so takes a .08 DWI to trial and hears the sweetest 2 words
in the family law center… I mean courthouse.
••••••••••••••••••••••••••••••••••••••••
Adam Brown got a murder mistrial in DC122. Somehow,
a newspaper article about the case went back to the jury
along with the ME’s report. Adam and Abigail Anastasio
then hung a jury in DC56 for capital murder of a child.
••••••••••••••••••••••••••••••••••••••••
Lindsay Lopez and Adam Capetillo got DV in FBCCL1
on AFV. After jury sworn, State sought to amend
information because they had CW named wrong. Lindsay
credits David Ryan for the idea to cross CW if CW had
ever been known by that name, and CW had not. That was
enough for TC to decide enough.
••••••••••••••••••••••••••••••••••••••••
PCS case out of Bosque County saw Brandon Ball and
Chaunte’ Sterling work a mistrial. Miranda violations,
mandatory probation, and DAO unwilling to budge on
pretrial offer made the decision to try case easy.
••••••••••••••••••••••••••••••••••••••••
NG Verdict Maggie Hindman on DWI3rd in DC56.
D arrested in the parking lot at 10:00 AM. D worked late at
bar night before. Blood test showed THC and prescription
drugs. Defendant looked good on video and jury felt LEOs
did a poor job.
••••••••••••••••••••••••••••••••••••••••
D charged with AFV and bribery of state judge. Carl
Moore investigated and proved to HCDAO that CW
framed D. Cases dismissed, and CW charged. Learn the
lesson – investigate your cases! This happens more than
ADAs will admit!
••••••••••••••••••••••••••••••••••••••••
Military appeals are some of the hardest to win, but Jack
and Terri Zimmermann got a reversed and rendered for
D, an AF LTC charged with rape. CW claims it happened
in 1997, didn’t outcry until 2015. No PC found, but
command pursued anyway.
••••••••••••••••••••••••••••••••••••••••
Victoria Erfesoglou teamed up with Justin Harris (yeah,
that guy, again!) to hear 2 sweetest words in the courthouse
on a blood DWI in FBCCL2, despite some questionable
rulings by TC.
David Adler pleads D in SDTX on 51 kilos of cocaine,
spread over 5 trips out of state. No 5k, only safety valve.
Due to some super-secret great lawyering, D got 12 months
and a day.
••••••••••••••••••••••••••••••••••••••••
DV for HCCLA President Doug Murphy in FBCCL5
on DWI. The Dougie followed up with NG in CCCL1
on >.15 DWI.
••••••••••••••••••••••••••••••••••••••••
Immediate Past HCCLA President Tucker Graves got a
hung jury on ASAC in DC184.
••••••••••••••••••••••••••••••••••••••••
HCCLA President Elect Neal A. Davis hung a jury on
Indecency in DC176.
••••••••••••••••••••••••••••••••••••••••
Ralph and Lisa Gonzalez heard NG on Agg Robbery
and Agg Kidnapping in FBC. D and ADAs both wept as
verdicts were read – but for very different reasons.
••••••••••••••••••••••••••••••••••••••••
Angela Weltin heard 2 word verdict on her first CDL trial
murder in DC185.
••••••••••••••••••••••••••••••••••••••••
Kasey Doggett won MTS in no test DWI in FBCCL4.
Kase dismissed!
••••••••••••••••••••••••••••••••••••••••
Michael Abner heard NG on resisting arrest in GCCL1.
LEOs went to D’s house, and charged D when D
refused to talk.
••••••••••••••••••••••••••••••••••••••••
Ron Morgan won MTS based on no PC in FBC on a DWI.
••••••••••••••••••••••••••••••••••••••••
Skip Cornelius heard 2 word verdict on capital murder.
••••••••••••••••••••••••••••••••••••••••
Cordt Akers earned an in trial dismissal on DWI
in CCCL5.
••••••••••••••••••••••••••••••••••••••••
Carmen Roe and Nathan Mays hung jury in DC185, agg
assault on a public servant. D accused of attempting to run
an officer over in his jeep. Physical evidence showed cop
took a knee, waited, and unloaded a full clip into the side
of D’s vehicle while D was leaving flea market. Pre-trial
offer was 15 years TDC. On re-trial, jury came back with
misd deadly conduct. The Carmen-ator then teamed with
Robb Fickman to win CCA appeal from DC248 on MTS
witnessed by Mark Bennett. Oh, and then Carmen was
elected a SBOT rep because, what else do you do?
THE DEFENDER / 2018, VOLUME 2
ADA wanted max time for .24 blood DWI in Washington
County. D has CDL and has a clean record. Phil Baker
teed it up and got NG.
••••••••••••••••••••••••••••••••••••••••
When is a win not NG? When you beat the offer! Team Bob
and Doug Loper got a jury to deliver a 23 year sentence
on the lesser offense of murder in DC434. The trial started
as a non-death capital.
••••••••••••••••••••••••••••••••••••••••
Donale Evans got a mid-trial dismissal (really, mid-
cross examination of LEO) on .10 breath DWI. PTI
turned down, and Donale pointed out mistake after mistake
after mistake.
••••••••••••••••••••••••••••••••••••••••
Armen Merjanian and Cory Roth heard the big NG on
POM in’ Colorado County. 63 year old D with no criminal
history and the State refused all reasonable offers to
dismiss. Cory followed up with NG on AFV in CCCL15,
with LEO testifying LEO saw D hitting CW. TC refused to
accept BIPP and dismiss.
••••••••••••••••••••••••••••••••••••••••
Kate Ferrell beat .19 blood DWI involving a major
accident and D in hospital for weeks. DWI Task Force
peeled down D’s bandages to administer HGN.
••••••••••••••••••••••••••••••••••••••••
Sorcha Landau shot the moon on HCDAO in COA,
flipping an adult certification of a juvenile on Moon
grounds (see what I did there?). D had received a capital
life sentence, and now will be re-sentenced as a juvenile.
••••••••••••••••••••••••••••••••••••••••
Kyle Sampson was drafted after the murder case was
set for trial in DC351. Kyle drafted Mike Driver on
the day of trial to assist, and the K&M Connection heard
the sweetest 2 words in the Juvenile (In)Justice Center…
err, courthouse.
••••••••••••••••••••••••••••••••••••••••
Tonya Rolland and Bao-Long Hoang earned NG for a .17
DWI/accident in CCCL5. TC was unhappy with Tonya’s
cross as it was “not fair” to HCDAO.
••••••••••••••••••••••••••••••••••••••••
Narcs just cannot help but cheat to win. However, D had
surveillance cameras, so Brett Podolsky and Matt Sharp
just let them spin their tale, locked them in, and then played
the video. MTS granted in DC182 on DCS1.
10 11
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

Austen H. Hobbs won in COA14, Andreea Ionescu got a 15 minute NG in CCCL8 on AFV.
affirming GCCL3 MTS on DWI. The CW says D punched CW 6 times in stomach. Andrea

issue was failing to maintain a single lane.
Austen then teamed up with Justin Harris
(because apparently everyone does) for
a DV on DWI in HCTX and NG on
DWI in FBC.
••••••••••••••••••••••••••••
Emily Detoto and Paul Morgan got a
mistrial in DC185 on murder. Voir Dire was moved up,
no one told Sparty and The Bearded One, and they were
Troy McKinney got a big win COA9 from a Jefferson
forced to pick jury on fly. Then trial was delayed by a
County case on warrantless blood draw DWI. 2 day MTS,
winter storm.
assisted by Gary Trichter, Chris Denuna and Wes
••••••••••••••••••••••••••••••••••••••••
Rucker. Wes and Chris spent scores of hours collecting
FBCDAO thought they had a whale - .18 blood DWI4,
over 50 warrants issued after-hours and on weekends
bad video. Anthony Segura and Adam Capetillo (again)
over a four year period. LEOs never considered this
heard NG on DWI4 in DC240, when LEO admitted
because it was as a “mandatory blood draw.’ Ultimately,
no PC for stop.
the COA held State’s failure to prove actual unavailability
••••••••••••••••••••••••••••••••••••••••
of judge was fatal.
Lori Gooch and Te’iva Bell got their groove back and
••••••••••••••••••••••••••••••••••••••••
secured NG in CCCL5.
Lynnette Briggs and Rachel Dragony earned 2 word
david ryan
caught CW fibbing (because family law center is a palace
of perjury) and inconsistent prior statements in medical
records and reporting.
••••••••••••••••••••••••••••••••••••••••
Hugh Brasher went up to Smith County and heard
NG on BOH. Winning Warriors is written by HCCLA Secretary,
•••••••••••••••••••••••••••••••••••••••• David Ryan (2015-present). David has been
Pre-trial offer was 5 years TDC for D on charge of trying practicing for 25 years, Mentor of the Year 2013-
to take a firearm from a peace officer. Eddie Cortes 2015 (ret.), Member of the Year 2016, HCCLA
took his chances with jury, and walked out 15 minutes Board Member 2013-2015, co-chair of TCDLA
later with NG. Rural Practice, and TCDLA Board Member
••••••••••••••••••••••••••••••••••••••••
(2013-present). The victories are yours. David
Joe LaBella and Rob Stephens defended a decorated,
provides the snark.
war injured vet on a no test DWI in MCCL4 and came
away with NG. Sadly, Joe lost his battle with pancreatic
cancer shortly after.

Did you or anyone

••••••••••••••••••••••••••••••••••••••••
verdict on AADW in DC10. GCDAO was so sure of a
Wade Smith got an in trial dismissal of DWI2 in FBCCL4.
win most of the office turned up for the verdict. Plot twist!
Despite a really awful report, video went missing. During
••••••••••••••••••••••••••••••••••••••••

you know have

trial, FBCDAO comes up with a new video. Wade asked
Eric Benavides got NG on .09 DWI in CCCL2.
TC to dismiss for MMA violation. While TC considered
Again, tech admitted RD. Again, why are these cases
its ruling, State decided to dismiss. So, no matter what
going to trial?

success?
COA10 says about MMA, keep urging TCs to punish State
••••••••••••••••••••••••••••••••••••••••
for failing to comply with MMA. Wade then hiked up to
Jay Cohen won MTS on .24 breath DWI, and then NG
MCCL1 for a .18 blood DWI. During Franks hearing,
at trial in CCCL8.
Wade gets LEO to admit another LEO wrote affidavit and
••••••••••••••••••••••••••••••••••••••••
CONTINUED : WINNING WARRIORS

LEO has no personal knowledge. MTS and DV granted.

Intox Manslaughter in DC248 was no match for Mark
••••••••••••••••••••••••••••••••••••••••
and Taly Theissen. Theme Theissen earned NG and
Lori Botello was having none of 4 year TDC offer in
TS on DWI.
DC176 for a 1st offense AFV-choking. With a jury on the
••••••••••••••••••••••••••••••••••••••••
way, D took TS on misd AFV.
Joe Varela pulled a rabbit out of a hat in DC176. D was
••••••••••••••••••••••••••••••••••••••••
5-99 with bad history on AADW public servant with bad
David Ryan and Matt Tyson hit a DV on crim mischief in
facts. D on 10-year DADJ, and Joe was handling MAJ.
FBCCL5. D got into an argument at nail salon, allegedly
TC initially found technicals true. Joe worked up the
throwing a glass which broke a nail gun. However,
case, presented witnesses and argument, and TC kept
testimony seemed to indicate salon is in Harris County,
D on DADJ. Investigate the cases, you must – Sun Tzu
and definitely nail gun broke when CW pushed D into a Submit the names of the lawyers and a brief description to:
(maybe it was Yoda).
table as D tried to leave.
hcclawinningwarriorscolumn@yahoo.com
We do not check social media for your wins.
.
12 13

the
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

The HCCLA 48th Annual Banquet was held on May
at i n g
Celebr tars of
10th at the Houston Ballroom at Bayou Place. Tucker

All-S nse Bar:

Graves and Doug Murphy did an exceptional job
e hosting the event. Edward Mallett inducted 2018-2019
the Def u a l Officers and Board of Directors. Over 300 lawyers, friends,

t h A n n
48 anquet
family members, judges and candidates attended an
enchanting evening to celebrate this year’s outstanding

HCCLA B
lawyer achievements.
lt,
ristina
Appe
By Ch ve Directo
Execu
ti
r
Congratulations to the award winners!

LAWYER OF THE YEAR SHARON LEVINE UNSUNG HERO

Scott Pawgan
David Ryan presented Scott Pawgan with this
distinguished award. Board Certified in Criminal
Law (TBLS), Scott tends to toil mostly out of sight in
the hinterlands. He is always willing to offer his
take on parole issues, technology issues, and sex
offender cases. Scott had a big win in the CCA on
sex offender cases this year when the legislature
granted relief to any sex offender with a case
pending. Scott’s client was on appeal. Montgomery
County prosecutors argued to the Court of Appeals
that the legislation violated the Governor’s powers
of pardon and parole, and the court affirmed. Scott
TORCH OF LIBERTY PRESIDENT’S AWARD took it up to the CCA who voted 7-2 to free his client.
Damon Parrish II
Racehorse Haynes once said that the real heroes are
the unsung lawyers who work hard in the trenches
everyday, with little to no recognition. Damon Parrish
II is one of those lawyers who truly embodies the spirit
and courage of Sharon Levine, this award’s namesake.
Damon fights hard for his clients at the Public
Defender’s Office. He does not seek attention. He
quietly serves on the county’s eFile Committee as a
strong voice for the defense, helping to improve the
system and provide training for defense lawyers. He
also co-chairs HCCLA’s Second Chair Program, pairing
newer lawyers with mentors. Damon selflessly gives
his time to help anyone in need, whether it’s jumping

Plaintiff Lawyers
Scott also got one of those rare cases where he got in a canoe to rescue flood victims or bringing jumper

in O’Donnell v. Harris County

Robert Fickman to cross-examine a presiding judge, a complaining
witness in an Assault on Public Servant case. Scott
methodically, but respectfully, picked apart the
cables to a stranded member. After Hurricane
Harvey, Damon volunteered in shelters, distributed
supplies, assisted people with FEMA applications,
Tucker Graves presented the President’s Award judge’s testimony, used the cops to demonstrate helped move the PD offices, went into damaged
(Susman Godfrey LLP, Civil Rights Corps, Texas Fair
to Robb Fickman for his many years of service and the judge’s lack of candor and truthfulness, and homes of colleagues, tore out sheetrock, hauled
Defense Project)
dedication to the bail issue that is finally coming scored a Not Guilty. Congratulations Scott! trash to curbsides, and made any other home
For years HCCLA has been outspoken on the issue repairs needed. Damon Parrish is a true unsung hero
to fruition. For over a decade, Robb has been an
of bail reform. We have long known it would take a in every sense.
outspoken voice on the need for bail reform in Harris
federal lawsuit to effect any real change but did not
County. As President in 2006, Robb wrote his first
have the resources or funds to bring one to suit. At long
scathing piece in The Defender against the unjust bail
last, Neal Manne of Susman Godfrey, LLP took it head-
practices. He has continued to speak out against the
on in 2016 when he filed a pro bono lawsuit against
unfair systematic denial of PR bonds and the infamous
Harris County with the aid of two organizations, Civil
“Plea Mill”. In 2013, he sent a letter to all county court
Rights Corps and Texas Fair Defense Project. Together,
judges urging them to change their policies and
they have fought a $6 million (and counting) defense of
published it on his website. Frequently quoted in the
the indefensible - Harris County’s unconstitutional and
press, Robb has been a prolific writer on this subject
decades-long practice of punishing poor people who
for years in countless Defender articles, blogs, listserve
could not afford to make bond. These citizens accused
posts, and had dozens of editorials published in the
faced a harsh choice of pleading guilty for a quick
Houston Chronicle. Many of his articles have appeared
release - straddling them with lifelong convictions - or
in law journals across the nation, and referenced in
languishing in jail until trial while losing their freedom,
the NACDL amicus brief for the bail lawsuit. He has
family and jobs. The lawsuit has shined a national
condemned the county’s systematic abuse of poor
spotlight on Harris County’s criminalization of the
people on Reasonable Doubt TV and in other public
indigent accused, resulting in a federal injunction and
appearances. Robb’s unwavering zeal for justice on
5th Circuit rulings in favor of bail reform. Neal Manne
this matter has brought about long overdue reforms
humbly accepted the award on behalf of his firm;
in Harris County.
Elizabeth Rossi accepted on behalf of the Civil Rights
Corps in New York; and Susanne Pringle accepted
as Director of the Texas Fair Defense Project. HCCLA
applauds them for carrying this Torch of Liberty!
14 15
RICHARD ‘RACEHORSE’ HAYNES LIFETIME ACHIEVEMENT
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

Each of these honorees has had a remarkable and distinguished career in criminal defense.

Sam D. Adamo
Licensed in 1968, Sam Adamo served his first 5 years
at the Harris County District Attorney’s Office trying
all criminal cases from DWI’s to Capital Murders. He
started up the White Collar Special Crimes Division and
remained at the top of this division until he left in 1976 to
start his own criminal defense practice. Focusing entirely
on criminal law, Sam Sr. was one of the early attorneys
to become Board Certified in Criminal Law (TBLS). He
has obtained dismissals and acquittals in every type of
criminal case, with 50 years of legal experience. He has
represented individuals, corporations, and even the
Police Union over the course of his career. He served
as HCCLA Vice President in 2012-13. His children, Sam
Adamo Jr. and Tammy Massa, who followed in their
father’s footsteps as attorneys, proudly presented him
with this award.
MENTOR OF THE YEAR MEMBER OF THE YEAR

Patrick McCann HCCLA Membership

Pat McCann was nominated for his longtime work with No doubt Tucker Graves had a doozy of a year as

the Gideon’s Promise/FACT program and the Precinct
4 evidence destruction matters. Pat consistently
devotes his time to mentoring younger lawyers in
Harris and surrounding counties, while also working
tirelessly to save his client’s lives from Texas’ death row.
Pat gave a heartfelt toast at the banquet to honor his
own mentor, Jonathan Munier. He asked the crowd to
do him the honor of charging their glasses, and raising
them with him: “To Jon, and all of our mentors. We can
never pay them back, but we can try to pay it forward.
Wherever they are, we hope they are proud.”
CONTINUED : HCCLA BANQUET
Connie B. Williams
HCCLA President. And so did the members--Hurricane
Harvey, ice storms, court closures and relocations, jail
dockets, bond dockets, and mandatory eFiling. While Connie Williams is one of the pillars of criminal defense in Harris
his own home was damaged by Harvey, Tucker County. He is known as a gentleman and formidable advocate
remained calm and focused at the helm. He saw in the courtroom. Connie began his legal career in 1974 after
firsthand how many members were affected by the graduating from the University of Houston. After a short stay at the
Harris County District Attorney’s Office, Connie began his career as
courthouse chaos or personally struck by tragedy, and
a criminal defense lawyer. Over the span of his career, Connie has
still helped others. Impressed by how resilient HCCLA represented approximately 50 persons accused of Capital Murder,
members were, how they came together to weather and all but 6 avoided death row during a time when Harris County
the storms, Tucker chose to honor the entire criminal led the nation in capital murder sentences. He was named one of
defense bar instead of selecting just one member for the Top Lawyers in Houston in 1994. Connie is a decorated Vietnam
War veteran with numerous medals for Valor in Combat, including
this award.
the Silver and Bronze Stars. But Connie will tell you his proudest
achievement in life is having a wonderful, supportive family. Tyrone
Moncriffe eloquently presented this award to his longtime friend
and colleague.

R.P. ‘Skip’ Cornelius

Skip Cornelius started in 1972 at the Harris County District
Attorney’s Office where he first-chaired more than 160

What a
felony jury trials. He served as the Chief Prosecutor of the
185th and 184th, then went on to work as an AUSA for the
Special thanks to everyone for coming out to Southern District of Texas in the Public Corruption, Bank Fraud

memorable
celebrate these amazing lawyers--and to Steven
Halpert (Treasurer), Bob Rosenberg (photography),
Michael Godfrey (audio/visual), Shannon Moore
and Embezzlement Sections. In 1982, he began his practice
in criminal defense. He has been lead counsel in more than
200 criminal jury trials of all kinds, ranging from DWI to Capital
Murder, in both state and federal courts in Texas and other

evening!
(registration), and Craig Howard and his staff at
The Houston Ballroom for going above and beyond
to make the program such a success!
states. Skip was named HCCLA Lawyer of the Year in 2009
for several high-profile cases resulting in amazing verdicts.
He continues to have success at trial, recently winning an
acquittal for Capital Murder. Alvin Nunnery gave a beautiful
speech honoring his friend and colleague at the banquet.
16 17
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / SPRING 2018

WELCOME Addiction is
NEW HCCLA an Illness...
MEMBERS
new members
Matt Alford
Marisela Arredondo
Dylan Blackwell
Tyler Brock
John Clayton Caldwell
Chris McKinney
Dana Nazarova
Thai-Anh Nguyen
Tyson Phillips
James Gregory Rubin
Michele Barber Chimene Anthony Ray Smith
harris county
election information
Not a Crime
BY CHRIS McKINNEY

A recent and infrequent trip to the gym had me reading

the New York Times on a stationary bicycle when I came
across a headline article entitled: “Jail for Drug Relapse:
Eldred relapsed during her treatment and began
using fentanyl.7
Christine Cockrell William M. Stradley
A Case Asks if That’s Fair.”1 The article discussed She later provided a urine sample to screen for drugs
Zachary B. Fertitta Richard Torres LAST DAY TO REGISTER TO VOTE treatment for opiate addiction and how relapse is an at the request of her probation officer.8 Eldred tested
Ryan Gertz
Derek Hollingsworth
Raymundo J. Vazquez
Angela Weltin
OCT 9 expected part of clinical recovery treatment. Despite positive for fentanyl and Suboxone.9
the expectancy of relapse in clinical recovery, relapse Eldred’s probation officer moved to have Eldred
Carson Joachim Adam J. Wolfe REQUEST FOR ABSENTEE BALLOT DEADLINE in the criminal justice system is usually treated with detained pending a probation violation hearing.10 She
Kaia Lubanko Kessler
OCT 26 the imposition of a jail or prison sentence. Treatment
and recovery professionals say the problem with jail is
was remanded to jail without bail and released ten days
later to a residential treatment program.11
“the penalty’s effect on an offender’s recovery.” This
new paralegal members EARLY VOTING article was incredibly thought provoking and provides a At a subsequent hearing, Eldred’s judge found her

Claudia Hipps
OCT 22 - NOV 2 complete paradigm shift to the archaic manner in which in violation of the terms of her probation, continued
Eldred’s probation, and denied her attorney’s request to
punishments in these situations truly hinder recovery.
Scheiner Law Group change the conditions of the probation.12
GENERAL ELECTION This also provides lawyers with a valid legal and science
NOV 6
Isabela Juarez
Law Office of Steve O. Gonzalez
based legal argument in certain cases to assist our clients But is jailing an addict for relapse fair and does
who truly desire and want treatment versus jail. requiring a sick person to be drug free set them up for
Jordan Gilbert
Law Office of Steve O. Gonzalez failure? That’s the question that Supreme Judicial Court
ABSENTEE BALLOT DEADLINE In 2016, Julie Eldred pled guilty to larceny over $250
POST RECEIVED BY
Laura Lopez in a Stow, Massachusetts court.2 She was placed on of Massachusetts seeks to answer in Commonwealth v.
Law Office of Steve O. Gonzalez Julie Eldred, No. SJC-12279.
the Massachusetts equivalent of deferred adjudication
NOV 7, 5:00 PM for one year, with conditions that she remain drug free Eldred and her attorneys argue that her community
new student members and submit to random drug testing as required.3 Two
days after being placed on community supervision,
supervision to “remain drug free” violates her substantive
constitutional right under Robinson v. California, 370
Daniel S. Chavez John A. Leo
Eldred completed an intake appointment at an intensive U.S. 660 (1962), not to be punished for a status offense,
outpatient program (IOP) at a local hospital.4 There namely, for being an individual with a chronic medical
Mayra Faz Phillip Lewis
she met with a doctor who prescribed her Suboxone, a condition, i.e., active opioid disorder, not in remission,
Freddie Lee Gabriel Sydney Paige Pippin medication to treat her opiate addiction.5 Five days later, and that Eldred’s failure to comply with that condition
LaKai Henderson Jacob Schiffer Eldred began IOP.6 was not “willful.”
JoLissa Krystal Jones Sintia Solis
18
THE DEFENDER / SPRING 2018
Understanding
addiction
as an Illness
In Robinson, the United States Supreme Court held that
a law imprisoning persons afflicted with the “illness” of
narcotic addiction inflicted cruel and unusual punishment
in violation of the Eight and Fourteenth Amendments.13
Addiction is a primary, chronic disease
of brain reward, motivation, memory and
related circuitry.14
Addiction affects neurotransmission and interactions
within reward structures of the brain, such that
motivational hierarchies are altered and addictive
behaviors… supplant healthy, self-care related
behaviors.15 Addiction also affects the brain such that
memory of previous exposures to rewards … leads to a
biological and behavioral response to external cues, in
turn triggering craving and/or engagement in addictive
behaviors.16
CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME
Addiction occurs
in three stages
1 Binge/Intoxication, the stage at which
an individual consumes an intoxicating
substance and experiences its rewarding
or pleasurable effects;
2 Withdrawal/Negative Affect, the stage
at which an individual experiences a
negative emotional state in the absence of Finally, the age of onset of substance use may also be
the substance; and a risk factor as individuals who begin using substances
3 Preoccupation/Anticipation, the stage at
which one seeks substances again after a
period of abstinence.17
This three-stage cycle “worsens over time and involves
dramatic changes in the brain reward, stress, and
executive function systems.”18 Indeed, the combination
of the symptoms of all three stages often provides an
overwhelming driver for substance seeking that can be
unrelenting.19
Your Clients
Susceptibility
to Addiction
Not all people use substances, and even among those who
use them, not all are equally likely to become addicted.20
Like other chronic health conditions, substance use
disorders are influenced by complex interplay between
a person’s genes and environment.21
Genetic factors are thought to account for 40 to 70
percent of individual differences in risk for addiction.22
Similarly, substance use disorders are significantly more
prevalent in individuals who suffer from mental another
illness.23 The reasons why substance use disorders and
mental disorders often occur together are not clear, and
establishing the relationships between these conditions
is difficult.24 Three possible explanations exist, however.
First, having a mental disorder may increase a person’s
vulnerability to substance use disorders because certain
substances may, at least temporarily, be able to reduce
mental disorder symptoms and this are particularly
negatively reinforcing in these individuals. Second,
substance use disorders may increase vulnerability for
mental disorders.25 Third, it is also possible that both
substance use disorders and mental disorders are caused
by shared, overlapping factors, such as particular genes,
overlapping neurobiological deficits, and exposure to
traumatic or stressful life experiences.26
during adolescence often experience more chronic and
intensive use compared with those who begin use at an
older age. In other words, the earlier the exposure, the
greater the risk.27
19
THE DEFENDER / SPRING 2018
Promoting Patience
Rather than Punishment
1 www.nytimes.com/2018/06/04/health/
drug-addict-relapse-opioids.html
The fact that a client afflicted with substance use
disorder tests positive while on probation shouldn’t be
2 RA 1, 5, Commonwealth v. Julie Eldred, No. SJC-12279.
surprising. Indeed, recovery from substance use disorder
characteristically involves periods of recurrence and
3 Id. at 2-3, 10.
remission.28 Studies have increasingly shown that 4 Id. at 16, 18, 54.
relapses are a commonly occurring part of recovery
from substance use disorder and should be considered 5 Id. at 26, 75, 78.
a “dynamic, ongoing process rather than a discrete or
terminal event.”29 6 Id. at 75, 79.
In fact, a client with a substance use 7 Id. at 11, 75, 80.
disorder is expected to relapse.30 Only
a minority of patients who successfully 8 Id. at 16, 18-19.
complete opioid detoxification or long- 9 Id. at 11, 75, 80.
term treatment of any kind, can abstain
in a prolonged fashion from opioid use.31 10 Id. at 12; Tr. 2.
The risk of relapse can remain for many 11 RA at 3, 13, 76, Commonwealth v. Julie Eldred, No. SJC-12279.
years.32
12 Id. at RA 3, 13; Tr. 1, 3-15.
We have indeed progressed from the Seventeenth
Century, when the violently insane went to the whipping
post and into prison dungeons, until they had regained 13 Robinson, 370 U.S. at 666-667.
their reason, or, as sometimes happened, were burned
at the stake or hanged.33 But still, punitive measures
for those who relapse exist. Probationers, like Eldred,
who suffer from substance use disorder are frequently
14 Brief of Amicus, Massachusetts Medical Society citing American
Society of Addiction Medicine, Definition of Addiction
(“Definition of Addiction”).
threatened with or simply relegated to jail, which tends
to worsen their preexisting conditions.34 But does jail
15 Id.
adequately address their addictions or should we be
16 Id.
advocating for a new set of “standard conditions” when
it comes to clients with substance use disorders? If the
17 Brief of Amicus, Massachusetts Medical Society citing
goal is to treat them for their sickness, why undermine
the rehabilitative purpose of punishment?35
As Justice Douglas made clear in
Massachusetts Medical Society at 23; Koob and Le Moal,
Drug abuse: Hedonic homeostatic dysregulation, 278 Science
52-58 (1997); Volkow et al., Neurobiological Advances from
the Brain Disease Model of Addiction, 374 N. Eng. J. Med.
Robinson, “we would forget the teachings 363-71 (2016).
of the Eighth Amendment if we allowed
sickness to be made a crime and permitted
sick people to be punished for being sick.
18 Brief of Amicus, Massachusetts Medical Society citing
Surgeon General’s Report on Alcohol, Drugs and Health
entitled Facing Addiction in America, Chapter 2 at 18 (2016).
This age of Enlightenment cannot tolerate 19 Id.
such barbarous action.”36
20 21
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

20 Brief of Amicus, Massachusetts Medical Society citing Surgeon
General’s Report on Alcohol, Drugs and Health entitled
Facing Addiction in America, Chapter 2 at 21 (2016).
30 Brief of Amicus, Massachusetts Medical Society citing Koston
et al., The Neurobiology of Opioid Dependence: Implications
for Treatment, 1 Sci. Pract. Perspect. 13, 19-20 (2002). the
21 Id. at 22.

22 Prescott CA, Kendler KS. Genetic and environmental

contributions to alcohol abuse and dependence in a
population-based sample of male twins. American Journal
of Psychiatry. 1999;156:34–40; Schuckit MA, Edenberg
HJ, Kalmijn J, Flury L, Smith TL, Reich T, Foroud T.
31 Brief of Amicus, Massachusetts Medical Society citing
Davison et al., Outpatient Treatment Engagement and
Abstinence Rates Following Inpatient Opioid Detoxification, risks of a
colorado
25 J. Addict. Dis. 27, 33 (2008).
32 Brief of Amicus, Massachusetts Medical Society citing Hser,
et. al., A 33-year follow-up of narcotics addicts, 58 Archives of

cannabis
A genome-wide search for genes that relate to a low level of General Psychiatry, 503-508 (2001); Valliant, The natural history
response to alcohol. Alcoholism: Clinical and Experimental of alcoholism revisited. Cambridge, MA: Harvard University
Research. 2001;25(3):323–329. Press (1995).

23 Brief of Amicus, Massachusetts Medical Society citing American
Academy of Addiction Psychiatry, Summer Newsletter Vol. 31,
No. 3 (2015) Travel Awardee Column: Addition Training
for the General Psychiatrist, Elie Aoun, “Aoun”).
vacation
33 Simpson v. State, 668 S.W.2d 915, 922 (Tex. App.—Houston
[1st Dist.] 1984) (Levy, A.J. dissenting) (citing Deutsch,
“The Mentally Ill in America” (1937), p. 13; “Action for
Mental Health” (1961), p. 26.

24 Brief of Amicus, Massachusetts Medical Society citing Surgeon
General’s Report on Alcohol, Drugs and Health entitled
Facing Addiction in America, Chapter 2 at 23 (2016).
25 Jacobsen LK, Southwick SM, Kosten TR, Substance use disorders
in patients with posttraumatic stress disorder: A review of the
literature, American Journal of Psychiatry, 2001;158(8):
1184–1190; Leeies M, Pagura J, Sareen J, Bolton JM,
CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME
34 Drucker, A Plague of Prisons: The Epidemiology of Mass
Incarceration in America 116 (2011).
35 Brief of Amicus, Massachusetts Medical Society citing
Volkow et al., Drug Use Disorders: impact of a public health
rather than a criminal justice approach, 16 World Psychiatry
213-214 (2017).
by D. Chris Hesse
Colorado is now widely considered the center of
what is being called “cannabis tourism.” When
Colorado made legal the recreational use of
marijuana in 2014, tourists have been going there
to get their legal high and take in the sights. The

The use of alcohol and drugs to self-medicate symptoms of
posttraumatic stress disorder, Depression and Anxiety, 2010;
27(8):731–736; Kumari V, Postma P. Nicotine use in
schizophrenia: The self medication hypotheses, Neuroscience
and Biobehavioral Reviews, 2005;29(6):1021–1034.
26 Brief of Amicus, Massachusetts Medical Society citing Surgeon
General’s Report on Alcohol, Drugs and Health entitled
Facing Addiction in America, Chapter 2 at 23 (2016).
27 Hanson KL, Medina KL, Padula CB, Tapert SF, Brown SA,
Impact of adolescent alcohol and drug use on
neuropsychological functioning in young adulthood: 10-year
outcomes, Journal of Child and Adolescent Substance Abuse,
2011;20(2):135–154.
28 Brief of Amicus, Massachusetts Medical Society citing
Commonwealth v. Julie Eldred, No. SJC-12279
29 Brief of Amicus, Massachusetts Medical Society citing
Hendershot et al., Relapse prevention for addictive behaviors,
6 Subst. Abuse Treat. Prev. Policy 2 (2011).
36 Robinson, 370 U.S. at 678.
chris mckinney
A criminal defense lawyer in Houston, Texas.
He spent the ��� ��and a half years of his legal
career at the Harris County District Attorney’s
����working in their Vehicular Crimes
Division. He is a 2012 graduate of South Texas
College of Law and a 2009 graduate from
Texas A&M University, earning a bachelor’s
degree in political science. When he’s not in
the courtroom, he’s spending time with his
wife, Sarah, and his daughter, Charlotte. And
when he actually gets a moment to himself,
he’s smoking briskets and brewing beer.
legal sale of marijuana in Colorado in the year
2015 has topped $ 1 billion, making the industry a
close second to the sale of craft beer. $135 million
in taxes and fees were generated for the State.
Please see http://reason.com/blog/2016/02/16/
legal-marijuana-sales-totaled-1-billion.
Many Texans are driving back home with
their purchases of Colorado cannabis and
do not realize the amount of risk they are
taking when it comes to Texas state law.
A vast majority of these Texans are driving back
from Colorado through Dalhart and Amarillo.
The amount of drug busts in these two areas have
greatly increased since “cannabis tourism” took
off in Colorado starting in 2014. The busts don’t
always involve large quantities that are intended
for resale, but most of the time involves a quantity
intended for personal use. It is important to know
the varying penalty levels for the type of cannabis
that is being possessed before anyone decides
to place themselves at risk of being arrested
and prosecuted.
22 23
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

The Types of Cannabis and the Penalty Levels of protection that are drawn around public and private It is important to note that a person Vaporizing hash oil delivers an
colleges and universities, schools, youth centers, can be charged with Class “B” incredible amount of THC to the
There are three levels of misdemeanors and four levels playgrounds (1,000 feet) and public swimming pools possession of leafy marijuana under user compared to vaporizing the leaf
of felonies in Texas (Please see Texas Penal Code Sec. and video arcades (300 feet). Please see Texas Health 2 ounces as long as the leaf that or burning the leaf.
12.11, 12.22, 12.23, 12.35, 12.34, 12.33, & 12.32): and Safety Code Sec. 481.134. Generally speaking, the person has is “usable.”
crime is bumped up to the next level crime. For instance Edibles made with hash oil are
1 Class “C” crimes are fine-only offenses. The general idea is that a also popular among THC users
a Class “B” possession amount will be charged as a Class
2 Class “B” crimes are crimes whereby the accused could face up to “A” because the 2 ounces or less of marijuana was found “usable amount” is the amount because they minimize the need to
180 days in jail or 6 months to 2 years of probation. burn marijuana and inhale harsh

in a drug free zone. I most commonly see drug free zone of marijuana a person needs to
enhancements charged within 1,000 feet of playgrounds or unpleasant smoke or even use a
3 Class “A” crimes are crimes whereby the accused could face consume for the sole purpose vaporizer. Common edibles include
and schools (school property, to be exact) and almost of “getting high.” This can
up to one year in jail or 6 months to 2 years of probation. brownies, cookies, and candies made
never on a freeway stop, although it is still very possible
amount to just one puff... with hash oil.
4 State Jail Felonies (SJF) are crimes whereby the accused to be driving within 1,000 feet of a school while on the
could face anywhere from 180 days to 2 years in a State Jail freeway. For instance, Saint Andrew’s Episcopal School There have been convictions Wax is the most powerful form of
Facility or anywhere from 2 to 5 years of probation. is located on Georgia and the school property butts right involving unimaginably small marijuana on the market. People
up against the westbound feeder road. The distance from amounts of marijuana. For example, who use marijuana wax use a small
5 3rd Degree Felonies are crimes whereby the accused could this school property to the eastbound lanes of I-40 is a in Parson v. State, 193 S.W.3d amount, or a dab, to work. Another
face anywhere from 2 to 10 years in a penitentiary or from 2 mere 175 feet, well within the 1,000 foot range. (Tex. App.—Texarkana 2006), the name for marijuana wax is BHO,
to 10 years of probation. Court of Appeals upheld a case which is short for butane honey oil.
Drug free zones can also bump up the minimum range
6 2nd Degree Felonies are crimes whereby the accused could of punishment when it comes to the felony accusation. where a person was arrested and Making wax is a dangerous process.
face anywhere from 2 to 20 years in the penitentiary or from Drug free zones can also affect parole eligibility. convicted of possessing a usable Wax can be smoked in a bong or
2 to 10 years of probation. For purposes of this article, we will focus on an accusation amount of marijuana and the amount vaporizer. It is 80% pure THC. It
of possessing cannabis without a delivery or drug free was 1.41 grams. is also the most expensive form of
7 1st Degree Felonies are crimes whereby the accused could face zone allegation. marijuana on the market.
anywhere from 5 to 99 years or life in the penitentiary or
from 2 to 10 years of probation. People charged with possessing hash
Hash Oils, Edibles, and Waxes: oil, edibles, or waxes are charged
CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION

Cannabis possession in Texas can range anywhere from a Leafy Marijuana with Possession of a Controlled
THC is the active chemical and
Class “B” misdemeanor up to a 1st Degree Felony. Substance in Penalty Group 2 (PCS
Possession of leafy marijuana subjects a person to arrest principal hallucinogen in marijuana.
There is no such thing as Class “C” cannabis Hash oil, which is made by exposing PG 2. See Texas Health and Safety
for Possession of Marijuana. Please see Texas Health and Code Sec. 481.116.) PCS PG2
possession, although an officer could give Safety Code Sec. 481.121. marijuana to a solvent, is a potent
and concentrated carrier of THC. falls within the following range
a Class “C” Citation for Possession of Drug of punishment depending on the
The penalty level depends on the weight of the Hash oil, due to its concentration
Paraphernalia. and lack of plant matter, is in the weight possessed:
leafy marijuana. It does not matter whether the
same penalty group as ecstasy and
Please see Texas Health and Safety Code Sec. 481.125. leafy marijuana is hydroponically grown (higher 1 SJF: Less than 1 gram
Class “B” accusations and higher are offenses whereby THC content marijuana, or your garden variety
amphetamines.

the person can be placed into full custodial arrest and
“Mexican Skank-Weed”. All leafy marijuana is Hash oil can be smoked in a 2 3rd Degree: 1 gram or more
booked into jail. These people will have to bond out vaporizer. Vaporizers are the modern but less than 4 grams
pending the court case. weighed the same.
day equivalent of the cigarette.
3 2nd Degree: 4 grams or more
This article will not focus on delivering marijuana or 1 Class “B”: 2 ounces or less. Vaporizers can be as small as a
but less than 400 grams
delivery of a controlled substance. Delivery falls within pen and work to extract the water
a different range than possession and involves different 2 Class “A”: 4 ounces or less but more than 2 ounces. molecules from the marijuana leaf
4 1st Degree: more than 400 grams. Id.
and turn those water molecules into a
weights. Please see Texas Health and Safety Code Sec.
3 SJF: 5 pounds or less but more than 4 ounces. (By way of comparison, 1 pound is
481.120 & 481.113. It is rare to be accused of delivery of vapor. Vaporizers also turn the liquid
approximately 454 grams
marijuana or delivery of a controlled substance, and the hash oil into a vapor to be inhaled.
4 3rd Degree: 50 pounds or less but more than 5 pounds.
vast majority of the cannabis charges I have seen involve Marijuana users are quickly The average weight of just one
possession, not delivery. To put it simply, “delivering” 5 2nd Degree: 2,000 pounds or less but more than 50 pounds. transitioning from burning the marijuana cookie is 30 grams. One
is shown if it is obvious that the cannabis is going to be marijuana leaf, to vaporizing the pound of cookies is really not that
resold (such as pre-packaged in small amounts to suggest 6 1st Degree: more than 2,000 pounds. Id. leaf or vaporizing the hash oil. It is heavy and does not amount to much.
intent to re-sell) or the person is literally caught in the act important to note that vaporizing the I’ve had many clients charged with
of hand delivering to another individual. Possession of Marijuana falls within the following range PCS PG2 and facing a 2nd Degree
of punishment depending on the weight possessed. leaf extracts more THC than burning
the leaf. Additionally, vaporizing is Felony because of just one cookie or
Also, please note that possessing marijuana or a
safer than burning the leaf because a small edible.
controlled substance in a drug free zone creates its
own set of special problems. Drug free zones are zones the user is not inhaling carcinogens.
24 25
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

Post-Traumatic Stress
Disorder is a condition
that occurs in people
who have experienced
a frightening or violent
event, i.e., trauma.
The condition’s symptoms
include nightmares, avoidance
Possessing a single 30 gram marijuana cookie In most instances a person accused of possession will
of the situations or people that
subjects the person possessing the single seek the services of a bail bondsman who would charge
10% of the total bond as the bondsman’s fee. So for remind the individual of the
cookie to a hefty 2nd Degree Felony accusation.
example if the person is charged with possessing a 30 incident or series of incidents,
As ridiculous as it sounds, one 30 gram cookie gram marijuana cookie in the 2nd Degree Felony range, flashbacks to the incident,
is equivalent, punishment range wise, to trouble sleeping, and feelings
CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION
by Patrick F. McCann
Some people are familiar
with this condition through
their readings or experience
with veterans who have faced
combat or hostile fire, or
incidents like the USS Cole
bombing. PTSD can manifest
within a few months of the
incident or sometimes even
months or years later.
However, veterans are not
the only ones who experience
trauma. Many of us have
People who were physically
abused as children, people
who were assaulted in prison,
women or men who were
sexually assaulted, young
people who were part of
gangs and the violence in their
neighborhoods, people who
have lost family to suicide, or
been in a deadly fire, or were
injured in a tragic car accident,
all can experience PTSD.
Now, before you get skeptical,

and the bond was set at $20,000, the person would need had veterans as clients, and I think about the questions on
possessing anywhere from 50 to 2,000 pounds to come up with $2,000 to bond out. The bail bondsman of being on edge. Symptoms
frankly started learning about the following page as they
of leafy weed. then acts as a surety and vouches for that person that that usually continue for over a
month and can normally be this disorder because of my relate to our clients, and see
person will show up to court. attempts to assist veterans if it is likely our clients could
Some might say that the legislature went too far when traced to a specific indecent
setting up the punishment ranges for marijuana edibles, In addition to the higher bond amounts come the higher or series of incidents. in criminal court, but if you answer “Yes” to any of these
oils, and waxes. It almost encourages marijuana users attorney fees. It is industry standard for attorneys to think about it, many of our questions,
to possess leafy weed rather than the edibles, oils, charge a certain amount of money depending mostly on clients have been exposed regardless
and waxes. the punishment range level of the crime. Complexity of to trauma. of why.
the crime and estimated amount of work the attorney may
have to do also is a factor in the pricing. But basically,
The Bail-Bondsman & The Attorney: representation on a SJF accusation starts out in Texas at
the bottom range of $3,500 for a pre-trial fee and $3,500
With the higher accusations come the higher bail bond for a trial fee. The fees only go up from there when the
amounts and higher attorney fees. punishment range goes up. Attorneys put their law license
on the line every time they represent someone, and when
Bonds across the State of Texas generally fall within the
the stakes are higher, the fee is higher.
following ranges depending on the penalty range:

1 Class “B”: $500-$1,500
The Lesson
2 Class “A”: $1,000 to $3,000
No matter what your
3 SJF: $3,500 to $8,000 feelings on whether
marijuana should be
4 3rd Degree: $10,000 to $20,000 made legal in Texas or
not, be aware of the extreme
5 2nd Degree: $15,000 to $40,000 penalty ranges for some of
the cannabis products and
6 1st Degree: $40,000 and above the corresponding bail
bondsman and attorney fees.
26
THE DEFENDER / 2018, VOLUME 2
DO YOU HAVE NIGHTMARES?
DO YOU FEEL ANXIOUS?
[CANNOT SIT STILL, WORRIES, LESS THAN CALM]
DO CERTAIN SOUNDS OR SMELLS
MAKE YOU FEEL ANXIOUS?
ARE YOU UNCOMFORTABLE IN CROWDS?
ARE YOU FRIGHTENED BY SUDDEN
LOUD NOISES?
ARE YOU UNCOMFORTABLE IF YOU CANNOT
SEE THE ENTIRE ROOM?
DO YOU EVER FEEL UNEASY OR THREATENED?
[OR, DO YOU HAVE SUDDEN ANGRY OUTBURSTS
CONTINUED : WHY BAD THINGS KEEP HAPPENING TO YOUR CLIENT...
FOR NO APPARENT REASON?]
DO YOU HAVE TROUBLE SLEEPING?
DO YOU AVOID NOISY AREAS?
DO YOU HAVE NEGATIVE VIEWS OF YOURSELF
OR FEELINGS OF GUILT OR BLAME?
These questions are not all encompassing,
nor are they a sure fire way to detect
PTSD. If you take the risk factors, for
instance, abusive childhood, or anyone
who has been involved in a CPS case, or
prior military service in a hazardous area
or direct combat, or prior prison time,
or prior losses of loved ones in a violent
way, for example – and then observe
the client – is the client hyper-vigilant,
keep his/her back to the wall, head on
a swivel, or does the client complain of
sleeplessness, irritability, bad dreams,
take anti-anxiety medications, does
the client appear to look for threats or
complain about how some guard reminds
client of abusive dad, “that bastard”, etc.
– then this connection between the risk
factors and your actual observation of
such behavior is worth following up for
several reasons.
First, the circumstances that produce the
PTSD are often quite mitigating to juries,
judges, and prosecutors. It will not always
help, but if people begin to see your client
as the kid who was abused and placed in
a foster home instead of the armored car
robber, then this can only help. Second,
the PTSD itself is often the root of the
actions that got your client in court in
the first place. Whether it is being caught
with controlled substances that they use
to anesthetize, or the drinking that led
to the DWI, or a flashback that caused
an over-aggressive reaction that led to
an assault charge, a diagnosis of
PTSD could mean you have both
an explanation for the illegal act
and a way forward, i.e. treatment.
This can only help your client.
Last, it can provide, in some
instances, a defense, particularly if
you can put the fact-finder back in
the incident that caused the PTSD
and see how it was perceived by
the client. In limited instances,
PTSD may even provide a defense
against intent, if you can prove
a flashback occurred or that the
circumstances were misperceived.
So, we know to at least look for
the presence of this disorder in our
all too-often traumatized clients.
Next, since we are lawyers, we
need to prove this, so we can use
it. If our client is a veteran, often
that simply means obtaining the
veteran’s medical records, if they
already have such a diagnosis. If
a vet does not have the diagnosis
yet, then see if a VA examination
and diagnosis can be arranged.
First, though, you may need to
obtain the records that support
the diagnosis, such as combat
awards (a Purple Heart, a Combat
Action ribbon, commendations
with a combat “V” for valor,
awards for heroism, such as a
Bronze Star, or a unit citation)
or the discharge papers, called a
“DD-214”, which will list the job,
deployments, and action history of
the service member. We can also
look to the unit history maintained
in the archives of the separate
services, which will list combat or
hazardous actions by the veteran’s
unit. These can be obtained by a
VA release form downloaded off
the web or available at the VA.
For our civilian clients, the records
process is more tricky. Prison
and jail discipline or medical
records are often a surprising gold
mine, even if it looks as if your
guy was written up for the fight.
Attacks on your client are often
documented in either medical or
disciplinary records. An average
reader of such records may
frown on this, but how many of
your friends would respond with
calm equanimity to an attempted
sexual assault or shanking? For
older cases of sexual or physical
abuse to a client during their
childhood, a subpoena typically to
the Children’s Protective Service
agency in the county where the
child grew up will unearth such
history as will a release for any
medical or counseling records.
Juvenile records are often also a
good source for this information.
27
THE DEFENDER / 2018, VOLUME 2
You may also want affidavits
from family members (this works
for the vets above as well]) as to
the client’s waking up at night
screaming, increased drinking,
increased drug use, or sudden
bursts of temper since returning
from prison, the service, the fire,
or since leaving foster care.
Which brings up a point -
PEOPLE DO NOT LIKE TALKING
ABOUT TRAUMATIC EVENTS
BECAUSE THEY WERE TRAUMATIC.
You need to get at least some
trust, some facts, or some family
help you to prove up this disorder
because no one likes sharing
difficult times from their past
with strangers. Would you? Keep
this in mind and treat the issue
with some dignity. Do not expect
immediate help from the client as
to the horrible things endured in
the past. This conversation does
not happen in a holdover cell
meeting; it happens over time and
investigative effort and once trust
is established between attorney
and client.
Look for the PTSD that many of
our clients have, find the proof, and
use it to lessen their consequence.
28
THE DEFENDER / 2018, VOLUME 2
SAM HOUSTON AND THE
Fundamental to the work of this court is a
vigilant recognition that it is but one of three
equal branches of our federal government. The
work of the court is not to create policy or judge
the wisdom of any particular policy promoted
by the other two branches. That is the work of
the legislative and executive branches and of the
citizens of this country who ultimately exercise
democratic control over those branches. The
work of the Judiciary, and this court, is limited
to ensuring that the actions taken by the other
two branches comport with our country’s laws,
and more importantly, our Constitution.1
I.
Whereas Thomas Hobbes held that all authority exercised
by government must be vested in one man,2 or assembly of
men, Montesquieu argued for a division of power:
In every government there are three sorts of
power . . .
By virtue of the first, the prince or magistrate
enacts temporary or perpetual laws, and
amends or abrogates those that have been
already enacted. By the second, he makes
peace or war, sends or receives embassies;
establishes the public security, and provides
against invasions. By the third, he punishes
criminals, or determines the disputes that arise
between individuals . . . .
This, roughly, is the distribution of the authority of the
legislative, executive, and judicial branches with which
we are familiar. Montesquieu considers what could occur
if these powers were vested in the same entity:
When the legislative and executive powers
are united in the same person, or in the same
body of magistrates, there can be no liberty;
because apprehensions may arise, lest the same
monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the power of
judging be not separated from the legislative
and executive powers. Were it joined with the
legislative, the life and liberty of the subject
would be exposed to arbitrary control, for the
judge would then be the legislator. Were it
joined to the executive power, the judge might
behave with all the violence of an oppressor.3
James Madison and Alexander Hamilton, among many
others, conceived a constitution that would give each
branch of government the means by which to maintain
independence: a sort of Newtonian machine by which
the ambitions of the participants could be harnessed to
counteract ambition.4
The U.S. Constitution does not explicitly contain the phrase
“separation of powers” nor is there an implied statement of
its intent to accomplish it,5 but the Constitution’s first three
Articles set out separately the composition and powers of
the legislature, the president, and the courts. There is clear
language at the beginning of each of the three Articles that
all powers appropriated to each branch of government
shall be vested only in that branch.
29
by Joseph W. Varela
THE DEFENDER / 2018, VOLUME 2
SEPARATION OF POWERS
II.
It was 1832, and Sam Houston had a problem. He was
freshly back in Washington, and upon picking up a
newspaper,6 he saw that Ohio Congressman William
Stansberry had made a speech on the floor of the House
of Representatives. In that speech, Stansberry accused
Houston of being one of a cabal of Jackson Administration
cronies who were favored in the award of certain contracts.
Houston‘s political career was at a temporary ebb, and
he could not afford to see his reputation lowered by this
affront. Houston avenged the accusation in a manner not
uncommon in early nineteenth-century American politics:
he armed himself with a heavy hickory walking stick and
went in search of Stansberry.7
It wasn’t long before Houston caught up with Stansberry
one evening on Pennsylvania Avenue. Houston began
striking Stansberry with the stick. The latter shot at
Houston with a pistol, but the weapon misfired. After
further blows, Stansberry escaped.
Days later a resolution was introduced in the House of
Representatives, calling for Houston’s arrest and trial. Sam Houston, Hermann Park, City of Houston. (Photo by Author)
Congressman (and future president) James Polk argued
that the House lacked authority for such an action, but Houston began his defense by attacking the authority of
the resolution passed by a wide margin, and Houston was Congress to try him. Speaking of his trial, he declaimed:
arrested. He was freed on his own recognizance and bound
over for trial in the constructive custody of the House’s If such a discretion is in your hand, the power
Sergeant at Arms. of punishment must extend to life itself . . . over
a man who had not, in any way, interrupted
The “trial” was a sensation. Houston’s lawyer was none your deliberations. If you can arrest him, you
other than Francis Scott Key, composer of the national may not only fine him, and imprison him, but
anthem. That advocate appeared to be suffering from the you may inflict upon him torture and death. . . .
effects of an excess of drink, and Houston, a trial lawyer
himself, stepped in and conducted his own defense. Gentlemen have admitted that the power they
claimed is not found in the Constitution. Then
where is it?
30
THE DEFENDER / 2018, VOLUME 2
And, warning of the consequences should the procedure
become popular:
. . . it has been deemed not sufficient to rely
upon the Constitution . . . personal feelings of
members have been appealed to . . . to induce
the House to act under the influence of partiality
and to sacrifice its duty, the law, and the
Constitution to merely personal consideration
. . . . it is not my rights alone, but the rights of
millions that are involved here . . . .
CONTINUED : SAM HOUSTON AND THE SEPARATION OF POWERS
When one member cited the actions of France’s
revolutionary National Assembly8 as precedent, Houston
was ready with an answer:
What legislative bodies could have been more
corrupt than they? . . . they themselves had
usurped the power they exercised—and terror
struck the hearts of men who had no home, no
country: for where there is no security to the
citizen there is neither home nor country. . . .
Houston was found guilty. The punishment: to be
reprimanded by the Speaker of the House. The sentence
was duly carried out.9
III.
While the separation of powers doctrine generally frowns
upon any one branch of government encroaching upon
the powers of any of the other two, of particular interest
to us is Sam Houston’s situation. The problem arises
when the legislative branch attempts to exercise a power
traditionally held to belong only to the judiciary: the power
of punishment.
A bill of attainder is a legislative finding of guilt and
imposition of punishment. Congress is expressly forbidden
from making a bill of attainder10 and so are the states;11 all
fifty state constitutions forbid bills of attainder.12
The U.S. Supreme Court considered bills of attainder in
cases arising after the Civil War.13 Those cases concerned
loyalty oaths as a condition of professional licensing,
not legislatively imposed punishments. The first modern
treatment of bills of attainder occurred in U.S. vs. Lovett,14
which arose during World War II. Congress passed
an appropriations bill, which contained a section that
purported to deny salaries to thirty-nine named federal
employees for alleged “subversive activity.”
The bill forbade that the named individuals receive any
compensation for government employment, except for
service as jurors or soldiers. A special subcommittee of the
House Appropriations Committee convened a hearing, at
which the subjects of the bill were permitted to testify but
were not allowed counsel. The special subcommittee noted
that there was no legal definition of “subversive activity,”
so it furnished its own definition for the occasion. Lovett
and others were found “guilty.” After acrimonious debate,
both houses passed the appropriations bill, including the
section cutting off the salaries. President Roosevelt signed
it to avoid problems funding the war, but he entered
a statement in the record that he believed the provision
denying compensation for government employment to the
particular thirty-nine individuals to be unconstitutional.
The U.S. Supreme Court agreed. Writing for the majority,
Justice Hugo Black held that Lovett’s situation constituted
a bill of attainder because it identified specific persons and
inflicted a punishment without the safeguards of a judicial
trial. In doing so, the Supreme Court established this
formula as the test for bills of attainder.
31
THE DEFENDER / 2018, VOLUME 2
No Texas law has been invalidated as an unconstitutional 7 The story is told by Houston’s biographer, M. K.
bill of attainder under either the U.S. or Texas Constitutions. Wisehart, in Sam Houston, American Giant (Van Rees
A recent case, In re Commitment of Miller,15 was a challenge Press, 1962).
to the Texas sex offender civil commitment scheme.16 The
Supreme Court, in Kansas v. Hendricks,17 had previously 8 See, generally, Simon Schama, Citizens: A Chronicle
held that civil commitment is not punishment, but instead of the French Revolution (Random House, 1989).
was intended to effect protection of the public and,
possibly, treatment of those committed. The Miller court, 9 Later Houston was found guilty in a proper court of
therefore, found that since there was no punishment, such assault and fined $500.
a scheme did not function as a bill of attainder.
10 U.S. Const. art. I, § 9.
The rarity of litigation concerning bills of attainder
argues that the Constitution has successfully discouraged
11 U.S. Const. art. I, § 10.
their use.18
--------------------------------------------------------------------- 12 E.g., Texas Const. art. I, § 16.
1 Temporary Restraining Order, State of Washington et 13 Ex Parte Garland, 71 U.S. 333 (1866); Cummings v.
al. vs. Donald J. Trump et al.; Case No. C17-0141JLR, Missouri, 71 U.S. 277 (1867).
United States District Court for the Western District of
Washington, February 3, 2017. 14 328 U.S. 303 (1946).
2 Leviathan, Chapter XVIII (1651). 15 262 S.W.3d 877 (Tex. App.-Beaumont 2008,
pet. ref’d.).
3 The Spirit of the Laws, Vol. 1, Book XI (1748). Trans.
Thomas Nugent (London: J. Nourse, 1777). Charles- 16 Tex. Health & Safety Code §841.003.
Louis de Secondat, Baron de Montesquieu was the
great French lawyer, political philosopher and historian 17 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501, 65
who influenced the French Revolution and modern U.S.L.W. 4564 (1997).
constitutional thought. Separation of powers is only
the greatest of his many achievements. Nowhere is his 18 But see Matthew Steilen, “Bills of Attainder,” 53 Hous.
influence stronger than in the U.S. Constitution. L. Rev. 767 (2016), arguing that the real problem is
executive non-judicial punishments, e.g. asset forfeiture,
4 Federalist No. 51 (1788). See generally, Donald S. Lutz, and that the Bill of Attainder Clause encompasses them
as well. Steilen’s article also provides a good history.
The Origins of American Constitutionalism, (Louisiana
State University Press, 1988).
5 Cf. Virginia Constitution of 1776.
6 National Intelligencer, April 3, 1832.
32
THE DEFENDER / 2018, VOLUME 2
war STORIES
THE EXTRAORDINARY
MEASURES TAKEN TO
COVER UP A LIE
The prosecutors in the City of
Carrollton Municipal Court have a
reputation for being unfair, and the
Court is notorious for its draconian
policies. While some matters are
discretionary, others are not. The
Michael Morton Act, codified under
Article 39.14 of the Texas Code of
Criminal Procedure, is mandatory,
and Carrollton prosecutors have
intentionally violated the law.
When they got stuck in a corner,
instead of admitting error, they lied
in a blatant attempt to cover-up what
they did wrong.
On March 1, 2018, I submitted a I had a busy schedule, but she would
request under Article 39.14 for my not be providing same. I informed
client’s discovery files as he believes Scanlon that I would provide a blank
he was racially profiled and did not DVD or flash drive and asked where
know why he was detained by the I should drop off the media device.
BY stephen le broCq
On March 5, 2018, Scanlon responded
that it would be “unreasonable” to think
that she would allow a device from an
“unknown source” to be put into one
of the City’s computers. As ridiculous of
an assertion that this was, I replied that
I would supply a brand-new flash drive or
disc in unopened packaging. Scanlon did
not respond, so I sent another email on
March 6, 2018 as a final attempt to get the
electronic duplicates of the officer’s in-car
dash and body worn cameras. Scanlon
continued to resist and stated that it was
her office’s “policy” and there were “no
exceptions.” Scanlon encouraged me to
file a motion with the Court, so I did.
That same day I filed a motion to compel
discovery, requesting the videos and
police. My client was not charged
requesting the Court order the City
with nor given warnings for any
Attorney’s Office to change their policy so
moving violations, and he wanted to
it would be in compliance with the Michael
know the reason for the traffic stop.
Morton Act. On March 15, 2018, the motion
was heard in a separate courtroom outside
On March 2, 2018, Mary Scanlon,
of the normal docket. It was on the record.
the main prosecutor in Carrollton,
Susan Keller represented the State of Texas
responded that she would not provide
at the hearing, and Scanlon was not present.
electronic duplicates of the videos in
For the first time, Keller represented to the
question, but that I could set-up a
Court that their office had no capability
time to view the videos on days when
of downloading the videos. I found this
she was available. I explained that my
argument to be strange for multiple
schedule was too busy, and I simply
reasons. First, Scanlon never mentioned
wanted the electronic duplicates that
this in any of her e-mails. You would think
Michael Morton requires. Scanlon
that if I offered to provide a flash drive
replied that it was “unfortunate” that
or DVD and that it was technologically
impossible to copy media, that Scanlon
would have replied as such. Next, I am
aware of the software and technology
used by Carrollton: WatchGuard.
33
THE DEFENDER / 2018, VOLUME 2
The company advertises how simple it is
to download the videos and the multiple
methods by which a download could occur:
DVD, USB Drive and even cloud-sharing.
I knew that Keller’s representations to the
Court were patently false.
Nevertheless, as routinely done, the Court
sided with the Government and denied my
motion completely. Later that day after the
hearing, I filed a Request for Findings of
Fact and Conclusions of Law. On March 19,
2018, the Court faxed me its findings and
conclusions. The Court placed its emphasis
on the fact that I did not try to work with
the City to find a time to view the video,
even when I was not asking to view it—
I was asking to electronically duplicate it.
The Michael Morton Act allows many
different options for discovery, which are
conjunctive, and viewing discovery is one
of the options allowed. My client wanted
to see his video in my office, as is his right.
The Court also apparently created new
definitions of the plain-term “electronic
duplicate”, finding that it “could mean”
making a “video of the video.” In my motion,
I cited dictionary terms, which the Court
disregarded. Duplicating something is a
replica. The videos have Metadata—stored
information regarding when the videos
were downloaded, created, edited, etc…
Furthermore, I did not want to hold my
phone to a computer screen or projector
and capture a video of a video. I held off
doing anything for a couple of months
while I was working on other cases.
34
THE DEFENDER / 2018, VOLUME 2
On April 23, 2018, I filed a Motion for Leave
for Petition to File a Writ of Mandamus, Writ
of Prohibition, and for Emergency Relief
in the Texas Court of Criminal Appeals
(“CCA”). On May 2, 2018, the CCA ordered
Judge Meredith Lyon to respond to the
motion I filed. On May 15, 2018, Scanlon
e-mailed me that “[t]he prosecutor [sic]
office now has the ability to download [the
videos] and burn them to flash drives.”
Later that day, I filed a request under the
Public Information Act for documents that
would show the purported “upgrade” of
the computer system that I know was false.
On May 17, 2018, Carrollton responded
by sending me an invoice for $7,056.00,
estimating that it would take 320 hours
of labor to find the basic documents I
asked for. I was curious as to why it would
take so long to find something that was
supposedly done within the past month
or so. I filed a complaint with the Attorney
General’s Office on May 17, 2018, and it is
still pending.
Carrollton hired a private law firm to
represent their interests. I discussed
proposed on many occasions, dismissing
to dismiss the mandamus petition as
moot, if they would represent that the
“new policy” would stay in effect. They
would not agree, and I filed a motion
to disqualify their counsel as a conflict
because the Judge and City Attorney hired
the same lawyer. The City Attorney’s Office
has 5 attorneys, plus the City was never
ordered to respond to the Mandamus,
so it’s unclear why the City hired this law
firm, especially if the City “fixed” the only
issue that made the Mandamus ripe. I have
filed a motion to dismiss Mandamus as
moot, and Carrollton’s lawyers are asking
for sanctions, stating that my motion to
disqualify them was baseless. I then filed a
civil suit to prevent the law firm from being
paid since it violates the Gift Clause.
Dallas Morning News wrote an article about
this case, and several people have reached
out to me regarding it. Additionally, when
I tried to contact Carrollton about the
issues within the Court, the private law firm
sent me a cease and desist letter, stating
that I violated ethical rules—essentially
threatening me and suppressing free
speech. As a result of that letter and the
prosecutors’ actions, I have also filed a
federal lawsuit in the Northern District
of Texas. All defendants in the State and
Federal cases have been duly served with
process. Stay tuned for the outcome of this
conflict and hope that justice will prevail.
stephen le brocq
The managing partner of Le Brocq Law Firm
PLLC, Mr. Le Brocq, attended middle school and
high school in the Carrollton Farmers Branch
Independent School District. After graduating
high school, Mr. Le Brocq attended law school
in Michigan and started his legal career in
Chicago. After obtaining experience in public
defender ����and state prosecutor ����
Mr. Le Brocq worked at a large plaintiff’s ��in
Chicago handling mostly medical malpractice
and wrongful death cases. He then opened a
general practice ��in Chicago, which he later
expanded to Dallas. Desiring to stay focused on
the Carrollton community and to give back, Mr.
Le Brocq opened an additional location to his ��
across the street from the Carrollton Municipal SPECIAL ELECTION
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D E F E N D E R
2018 / VOLUME 2

THE DEFENDER
PO Box 924523
Houston TX 77292-4523