Prosecutor

TEXAS

PROSECUTOR

The Official Journal of the

Texas District & County Attorneys Association

“It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.”

Art. 2.01, Texas Code of Criminal Procedure

Volume 46, Number 5 • September–October 2016 • www.tdcaa.com

THE

“I

felt like I had stepped into a horror movie,”

said one of the investigators who’d been called

out to a house on the

northwest side of Wichita Falls. Law

enforcement officers were serving an

arrest warrant for a subject at 3106

Northeast Drive, and they had no

idea what they would find when they

entered the nondescript house.

“It was easily the worst thing I

have seen in 25 years of law enforce-

ment.” Officer after officer who

responded to the scene later testified

in a similar way.

The first thing officers noticed

was the overwhelming smell of

human feces emanating from the res-

idence. “The house smelled like a dirty outhouse at a

deer camp,” one investigator said. In looking for the sus-

pect with the warrant, officers had obtained permission

to enter the house. In a dimly lit, cluttered front room,

they found what appeared to be a cage. “It scared me—I

thought it was a monster in a cage,” one veteran officer

said, remembering when he first entered the room and

saw the naked, caged creature making guttural noises.

“It looked like a caged animal.”

In fact, officers had discovered 25-year-old Allison

(not her real name), the daughter of Robin Payne. The

cage was a dilapidated adult medical crib. The apparent

rust on the cage’s bars turned out to be dried fecal mat-

ter. Allison was naked in the crib with no

bedding or pillows. She was covered in

dried feces, which made a pattern like a

tattoo on one leg. Her fingernails and toe-

nails were also caked in her own excre-

ment.

As a baby, Allison had suffered a stroke

and had severe brain damage. Other than

guttural sounds, she could not communi-

cate, and she was legally blind. When offi-

cers discovered her, she was in a clear state

of distress. Her brother, Brandon Terrell,

who had felony drug convictions, was the

only relative at the house. (The warrant

was for Mickey Stuart, a friend of Bran-

don’s who was not at the house.)

After being transported to the hospital, Allison was

showered. It took four nurses over 30 minutes to clean

her thoroughly. The fecal matter was so dried and

embedded in her pelvic and anal regions that nurses had

to pick it out in a laborious piece-by-piece process.

“When she realized she was getting a shower, she got this

big smile on her face,” one of her nurses said. Even after

the shower, Allison still reeked of feces.

Wichita Falls horror story

Officers and prosecutors alike said this crime scene haunted them. How Wichi-

ta County prosecutors sought justice for a disabled woman exploited by her

own mother.

Continued on page 18

By John Gillespie and

Stephen Rancourt

Assistant Criminal District

Attorneys in Wichita County

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

Table of Contents

COVER STORY: Wichita Falls horror story

By John Gillespie and Stephen Rancourt, Assistant Criminal District Attorneys

in Wichita County

4 Executive Director’s Report: Our first winner in the Article

42.12 rewrite contest

By Rob Kepple, TDCAA Executive Director in Austin

7 The President’s Column: An opportunity—and duty—to

lead

By Bernard Ammerman, District Attorney in Willacy County

8 Upcoming TDCAA seminars

9 TDCAF News: Advanced training for prosecutors and recent

gifts to the Foundation

By Rob Kepple, TDCAA Executive Director in Austin

10 Victim Services: Notice of a rate increase for CVC

By Jalayne Robinson, LMSW, Victims Services Director at TDCAA

12 As The Judges Saw It: Defense of a third party and the

meaning of ‘immediately necessary’

By Andrea L. Westerfeld, Assistant Criminal District Attorney in Collin County

14 Prosecutor booklets available for members

15 Photos from our Prosecutor Trial Skills Course

16 Photos from Advanced Trial Skills Course

17 A roundup of notable quotables

21 Criminal Law: “Does the defendant have to register?”

By Hilary Wright, Assistant Criminal District Attorney in Dallas County

24 Mental Defenses: Evaluating defendants for competency

and insanity

By Matthew D. Faubion, M.D., Forensic Psychiatrist and Clinical Director of

the Kerrville State Hospital, and Erin M. Foley, Ph.D., Forensic Director

of the Department of State Health Services in Austin

30 Criminal Law: Free at last?

By Zachary Robichaux, Law Student, South Texas College of Law, and Jason

Bennyhoff, Assistant District Attorney in Fort Bend County

32 Public Information: Keeping the government’s actions in the

clear

By Zack Wavrusa, Assistant County and District Attorney in Rusk County

Robert Newton Bland, IV

Kathleen A. Braddock

Thomas L. Bridges

Kenda Culpepper

Yolanda de Leon

David A. Escamilla

Tony Fidelie

Knox Fitzpatrick

2016 Officers

President Bernard Ammerman, Raymondville

Chair of the Board Staley Heatly, Vernon

President-Elect Randall Sims, Amarillo

Sec’y/Treasurer Jennifer Tharp, New Braunfels

Regional Directors

Region 1: Wally Hatch, Plainview

Region 2: Bill Helwig, Plains

Region 3: Rebekah Whitworth, Mason

Region 4: Jose Aliseda, Jr., Beeville

Region 5: Steve Reis, Bay City

Region 6: Kenda Culpepper, Rockwall

Region 7: Michael Fouts, Haskell

Region 8: Dusty Boyd, Gatesville

Board Representatives

District Attorney Julie Renken

Criminal District Attorney Jack Roady

County Attorney Vince Ryan

Assistant Prosecutor Woody Halstead

Training Committee Chair Melinda Westmoreland

Civil Committee Chair Michael Hartman

TAC Representative Laurie English

Investigator Board Chair Terry Vogel

Key Personnel Board Chair Raquel Scott

Victim Services Board Chair Serena Payne

Staff

Robert Kepple, Executive Director • W. Clay Abbott,

DWI Resource Prosecutor • Diane Burch Beckham,

Senior Staff Counsel • Kaylene Braden, Membership

Director and Assistant Database Manager • William

Calem, Director of Operations and Chief Financial

Officer • Shannon Edmonds, Staff Attorney • Tammy

Hall, Financial Officer • Jordan Kazmann, Sales

Manager • Patrick Kinghorn, Meeting Planner • Brian

Klas, Training Director • Ashley Martin, Research

Attorney • Jalayne Robinson, Victim Services Director •

Dayatra Rogers, Database Manager and Registrar •

LaToya Scott, Meeting Planner • Sarah Wolf,

Communications Director

Sarah Wolf, Editor • Diane Beckham, Senior Staff Counsel

TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION

505 W. 12th St., Ste. 100, Austin, TX 78701 • 512/474-2436 • fax: 512/478-4112 • www.tdcaa.com

Published bimonthly by TDCAA through legislative appropriation to the Texas Court of Criminal Appeals. Subscriptions are free to Texas prosecutors, investigators, prosecutor office personnel, and other

TDCAA members. Articles not otherwise copyrighted may be reprinted with attribution as follows: “Reprinted from The Texas Prosecutor with permission of the Texas District and County Attorneys

Association.” Views expressed are solely those of the authors. We retain the right to edit material.

TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION

TEXAS DISTRICT & COUNTY ATTORNEYS FOUNDATION

505 W. 12th St., Ste. 100 Austin, TX 78701 • 512/474-2436 • fax: 512/478-4112 • www.tdcaf.org

TEXAS DISTRICT & COUNTY ATTORNEYS FOUNDATION

Foundation Board of Trustees

Foundation Advisory Committee

H.E. Bert Graham

Russell Hardin, Jr.

Michael J. Hinton

Helen Jackson

Tom Krampitz

Barry L. Macha

Mindy Montford

Mark Yarbrough

D. August Boto

The Honorable James L. Chapman

Troy Cotton

Ashton Cumberbatch, Jr.

Norma Davenport

Dean Robert S. Fertitta

Gerald R. Flatten

Jack C. Frels

The Honorable Larry Gist

Michael J. Guarino

Tom Hanna

Bill Hill

The Honorable W.C. “Bud” Kirkendall

The Honorable Oliver Kitzman

The Honorable James E. “Pete” Laney

The Honorable Michael J. McCormick

The Honorable John T. Montford

Kimbra Kathryn Ogg

Charles A. Rosenthal, Jr.

Joe Shannon, Jr.

Johnny Keane Sutton

Carol S. Vance

n the July-August edition of The

Texas Prosecutor I announced a

contest: Find a substantive

change in the Code of Criminal Pro-

cedure’s Article 42.12 re-write and

win the TDCAA book

of your choice.

I think our first

responder is a winner.

Judge Larry Gist from

Beaumont wrote to

point out a rather obvi-

ous change: The very

first section of CCP

Art. 42.12, whose title

was “Purpose,” was

deleted in the re-codi-

fied CCP chapter 42A.

But is that a substantive change? Does

it change the meaning of the words?

I agree with Judge Gist that it

does, and here is why. The stated pur-

pose of Article 42.12 is “to place

wholly within the state courts the

responsibility for determining when

the imposition of sentence in certain

cases shall be suspended, the condi-

tions of community supervision and

the supervision of defendants placed

on community supervision. …” But

that is not what Art. 42.12 does.

Indeed, the article has evolved into

the home for limitations on a judge’s

authority when it comes to his discre-

tion to impose community supervi-

sion and conditions of supervision.

What was once a simple section that

said essentially, “Judges, just go do

justice,” is now, “Here is a big, long

list of things you can’t do.”

And I agree that this was inten-

tional. Many of you may recall efforts

in the late 1990s to legislatively

delete Art. 42.12 and revert to a sim-

ple “use your judicial discretion and

do a good job” approach. A lot of

judges and lawyers liked

the idea. But there was

one problem: No legisla-

tor would file such a bill.

Finally, a state senator

explained the problem to

us: Legislators liked Art.

42.12 as it was because

that is where legislators

could tell judges what to

do. Why would a legisla-

tor want to change that?

So Judge Gist, I think

you are indeed right. The purpose of

Art. 42.12 has changed, and the new

Chapter 42A will carry that change

forward. A TDCAA book of your

choice is on its way!

Who will rebuild trust?

It has been a tough summer for Dal-

las and indeed, the whole country, in

the wake of police shootings and

ambushes in cities across the nation.

It feels like Black Lives Matter and

Blue Lives Matter have squared off in

many respects. How does this work

out?

A recent poll by the Texas Trib-

une revealed that 73 percent of read-

ers believed that it will be community

groups and other local leaders who

find the right path—not the legisla-

ture, state leaders, police groups, or

others. Could it be that district and

county attorneys are in a unique posi-

tion to lead the way? I think maybe

so. After all, these shootings and use

of force cases land on your desk—

ultimately all of the parties intersect

in your office.

Many of your colleagues agree.

In August the TDCAA Diversity,

Recruitment, and Retention Com-

mittee met to discuss the issues facing

our profession and communities,

including what prosecutors can and

should do in these uncertain times.

The discussion went beyond the

intricacies of investigating and prose-

cuting use-of-force cases and includ-

ed the role of Texas prosecutors in

restoring a sense of balance to our

communities. So stay tuned: There

will be more to follow. If you want to

get involved in the discussion and the

work of the committee, just give me a

call.

Prosecutors leading on

conviction integrity

In the July –August edition of this

journal, I talked about how prosecu-

tors are the key to reform in criminal

justice and that they have taken the

lead in DNA, discovery, and other

critical reform efforts. So it was satis-

fying to see the cover of the July 10,

2016, New York Times Magazine: It

featured a letter from the Harris

County District Attorney’s Office to

a one-time criminal defendant

informing her that there had been a

flawed drug test and that she had

been prosecuted in error. The article

behind the cover image raised a lot of

issues about pre-trial detention,

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

E XECUTIVE DIRECTOR’ S REPORT

By Rob Kepple

TDCAA Executive

Director in Austin

Our first winner in the Article

42.12 rewrite contest

police use of preliminary drug test

kits, plea bargaining, and the role of

the defense attorney.

I know we tend to cringe when

we see that the New York Times has

written something about Texas pros-

ecutors, but by putting that letter on

the front cover, the Times tacitly

acknowledged that Texas prosecutors

are dedicated to getting it right.

Indeed, the article credits Harris

County Assistant DA Inger Chan-

dler with exposing the problem with

convictions based on the field tests,

DA Devon Anderson with devoting

resources to the problem and com-

mitting to exonerating innocent

individuals, and former Assistant

DA Marie Munier (who wrote the

letter on the front of the magazine)

with getting the job done. You can

read the article here:

www.nytimes.com/2016/07/10/mag

azine/how-a-2-roadside-drug-test-

sends-innocent-people-to-jail.html.

Finally, Inger recently published

an article in the Summer 2016 issue

of the American Bar Association’s

Criminal Justice Section journal

titled, “Conviction Integrity Review

Units: Owning the Past, Changing

the Future.” In the article she dis-

cusses the development of convic-

tion integrity units in Texas and how

prosecutors have engaged in a collab-

orative approach to reviewing cases,

which has reaped benefits. I’m afraid

that there is no access to the article if

you are not an ABA member, but if

the ABA keeps this up, prosecutors

might have the incentive to join!

The Honorable

Gerald Goodwin

I am saddened to report the passing

of a well-respected and beloved for-

mer DA and jurist, Judge Gerald

Goodwin. Gerald was a towering

figure in the East Texas legal com-

munity, having started prosecution

in 1971 in Houston before moving

home to Lufkin in 1974 to begin a

storied career as a prosecutor and

then a judge. Indeed, until very

recently Gerald was sitting on the

bench overseeing Angelina County’s

“rocket docket.” I got to know Judge

Goodwin when I came to the associ-

ation. He was a big supporter of the

Foundation and obviously loved our

profession—he’d regularly miss judi-

cial conferences to come to our

Annual Update in September. We

will miss you, Judge.

Welcome new—but not

green—prosecutors

Welcome to a folks who have taken

the reins in county attorney offices.

First, Rodolfo Gutierrez is our new

Jim Hogg County Attorney. But he

is not new to prosecution—Rudy

began his career as an assistant DA in

Jim Hogg County way back in 1977,

which might make him the longest-

serving assistant in the state.

And hello once again to Ed Wal-

ton, who is now the Loving County

Attorney pro tem. Y’all might

remember that Ed was the CDA in

Kaufman County from 2003 to

2006. He still lives there, but

through happenstance now spends

some time in Loving County as its

county attorney. Loving is one of our

least-populated counties, as it’s home

to only 86 Texans but 452 oil wells.

If just one more lawyer moves there,

the legal profession will boom!

Limestone County

Justice League

It is always great when legal firepow-

er gathers in one place. Recently

folks in Mexia honored retiring

attorney Holloway Martin after a

56-year legal career. The ceremony

offered a chance for the photo

below: Pictured from the left are

Holloway Martin, Limestone Coun-

ty District and County Attorney

from 1961 to 1969; Judge Patrick

Simmons, District and County

Attorney from 1981 to 1985; and

Roy DeFriend, the District and

County Attorney from 2001 to the

present. Thirty years of announcing

“ready” for the State over five

decades! An impressive trio.

Thanks to Bobby Bell

Congratulations to Bobby Bell, who

had served as the Jackson County

Criminal District Attorney for 32

years until his appointment in

August to the 267th Judicial District

Court bench. Bobby’s reputation

and legacy is that of a strong advo-

cate for the right of victims. Know-

ing Bobby, I’m sure that adjusting to

the more passive role of district court

judge will take a week or two, but he

will be a great judge. Thanks, Bobby,

for your service!

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

Continued on page 6

Automated vehicle update

About a year ago I went to a confer-

ence with folks from the Texas A&M

Transportation Institute. The pur-

pose was to meet with prosecutors

and law enforcement to explore the

issues involving traffic law enforce-

ment when it comes to automated

vehicles. Officers in the room quick-

ly identified some basic issues: If

there is a wreck, how does the officer

move and/or turn off the automated

vehicle (abbreviated as AV)? If the

AV commits a traffic violation, how

does the officer pull it over? Who

gets the ticket? What if the AV hits

someone and fails to stop and render

aid? What if the AV is pulled over

and a drug dog hits on it because it is

being used as an automated drug

courier? Fully automated vehicles

will be hitting the roads soon, and

these questions will need answers.

Texas A&M is working on them

and has recently issued a report on

the challenges of moving into an AV

world. Check it out at: http://

d2dtl5nnlpfr0r.cloudfront.net/tti.ta

mu.edu/documents/PRC-15-46-

F.pdf. Or go to our online Journal

Archive at www.tdcaa.com/journal,

look for this column, and download

the PDF from there.

Speaking of vehicles …

It was the end of an era when we at

TDCAA said goodbye to our trusty

white Suburban (“the ’burban” for

short—it’s pictured in the top photo

at right), which had carried our

training team all over this great state

for more than 10 years. Truth be

told, we can be pretty tough on vehi-

cles (the ’burban had its fair share of

windshield cracks and bumper

scrapes), and it was high time to get a

new one to tote us—and all of our

gear—to Galveston for our Annual

conference in September.

Enter Frank the Tank. That’s a

photo of him, below. He is our new

TDCAA van/truck/tank, and he is a

shiny black Nissan beast designed to

haul lots of people (which we have)

and lots of stuff (which we also

have). A world of thanks to Shannon

Edmonds, our trusty Governmental

Relations Director, who researched,

shopped for, and test drove vans and

SUVs in search of the exact right

vehicle for our needs. He earned a

debt of gratitude from all of us—as

well as naming rights for the beast.

Some of you may remember that

Frank the Tank was Will Ferrell’s

nickname in the movie Old School

(it’s a TDCAA staff fave and is con-

sistently quoted around these parts),

always up for a party—and maybe a

little streaking. We’re not exactly

sure why Shannon went with that

nickname, but we’re going to keep a

close eye on both him and our new

ride for the near future, just to be

safe.

The first lawsuit over

guns in the courthouse

In the last six months, different

counties have gotten letters from the

Attorney General’s Office notifying

county officials that various county

buildings had improperly posted

signs prohibiting concealed firearms

on the premise. The AG had the

unenviable task of managing the

complaints around those signs made

by open-carry and constitutional-

carry advocates, and that office has

been doing a great job of working

out these problems all over the state.

Well, one of our prosecutors

decided enough was enough and

“cut out the middle man,” so to

speak. Recently Elton Mathis, our

Waller County CDA, filed a declara-

tory judgment action naming Terry

Holcomb, the Executive Director of

Texas Carry, as the defendant. The

lawsuit’s goal is simple: to secure a

legal ruling that §46.03(a)(3) of the

Penal Code means exactly what it

says, that guns are not allowed in a

courthouse. Period. To read the law-

suit, go to our website at www.

tdcaa.com/journal, and find this col-

umn in this issue.

Just before this issue went to

press, Attorney General Ken Paxton

filed suit against Waller County on

this very issue, so stay tuned to see

how it all plays out.

Welcome,

August James Martin!

We are thrilled to report that Ashley

Martin, our most excellent Research

Attorney, has a son! August James

Martin was born on July 6 at a

healthy 8 pounds, 2 ounces. Every-

one is doing great, and we’re proud

Continued from page 5

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

The ’burban

Frank the TankFrank the Tank

to add another soul to the TDCAA

family.

The Seeds of Injustice

I enjoy reading a good crime drama,

and it is even more fun when it is

written by one of our own. The

most recent novel by a TDCAA

member is The Seeds of Injustice by

Rusk County and District Attorney

Micheal Jimerson. It is a good read

and a lot of fun as it is a bit of a

“period piece” set in post Civil-War

East Texas. Here’s the back cover

description: “Caleb Philips returns

from the carnage of the Civil War to

find his wife dead, his teenage son

rebelling, and his native East Texas

in turmoil. Before he can begin to

rebuild, another returned veteran,

ex-Confederate general-turned-

judge Matthew Ector deputizes him

to hunt down the cold-blooded

killers of several newly freed slaves.

In the meantime, Ector himself

must deliver justice in a courtroom

for an Indian chief and former rebel

general under the hostile gaze of the

Union occupying authorities. In a

rip-roaring tale stretching from the

Piney Woods of East Texas to the

barren desert of the Comancheria in

New Mexico, author Micheal Jimer-

son weaves a powerful tale of love,

loss, vengeance, and forgiveness.”

You can find it on Amazon at

www.amazon.com/Seeds-Injustice-

Micheal-Jimerson/dp/1936497328. i

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

P RESIDENT’ S COLUMN

An opportunity—

and duty—to lead

ike all of you, I was horrified

when five officers in Dallas

who were pro-

viding security at a

peaceful demonstration

for the Black Lives

Matter movement were

shot and killed by a

sniper. Following the

tragedy in Dallas, three

Baton Rouge officers

were ambushed, and

one San Diego officer

was killed during a traf-

fic stop. Preliminary

data by the National

Law Enforcement Offi-

cers Memorial Fund

shows that 2016 has seen an epidem-

ic of officers who have been shot to

death in the line of duty. At this date

the number is 32, compared to 18 for

the entire year of 2015. That is an

increase of nearly 78 percent. What is

as alarming is that 14 of these officers

were murdered by ambush.

As prosecutors, we work every

day with our police officers. To learn

to appreciate the challenges of their

job, I have done numerous ride-

alongs with officers. I wanted to

experience what police officers expe-

rience every minute on their jobs.

How else could I paint an adequate

picture to a jury? And I did not stay

in the comfort of the air-conditioned

patrol unit and watch by long-dis-

tance. I got out and stood near the

officers to listen first-hand to their

interactions with citizens. It’s a job

fraught with uncertainty: What are

you walking into? Is the driver

behind the wheel armed?

What or who is in the back

seat, behind the fence, or on

the other side of this door?

What I offer to you is that

policing is not a job for the

weak-kneed. I highly rec-

ommend that prosecutors

do a ride-along with your

local officers to experience

what they do to keep our

families and us safe.

In Texas, Governor

Greg Abbott announced a

proposed bill called the

Police Protection Act after

the murder of the Dallas police offi-

cers. The bill would extend hate-

crime protection to law enforcement

officers and change the offense of

assaulting a public servant from a

third-degree felony to a second-

degree. I think that is a good message

of support for law enforcement.

Abbott also proposes a campaign to

educate Texas youth on the value of

the service of law enforcement offi-

cers. Education may be a vital tool to

bring our hurting people together.

So where do we go from here?

How do we work to support and pro-

tect our officers? I suggest that we go

back to the beginning of this current

tumult over police use of force and

the reactionary ambush of officers—

all the way to Ferguson, Missouri.

Questions have been raised

about how police officers are trained

By Bernard

Ammerman

District Attorney in

Willacy County

Continued on page 8

when it comes to use of force, as well

as when and how they use that force.

As far as I can tell, those questions

aren’t going away. As ministers of

justice who prosecute (or don’t pros-

ecute) use-of-force cases, we are

squarely in the middle of this issue.

This is our opportunity to lead the

conversation in our communities,

and we all win if we can begin a con-

versation that restores and enhances

trust in our law enforcement com-

munity.

I’d like to remind everyone what

was happening on that tragic night

in Dallas: Citizens were marching in

peaceful protest while being protect-

ed—not opposed—by the police. I

don’t have a laundry list of things we

need to talk about or what needs to

change, but it seems to me that peo-

ple are on the right track in Dallas. i

Continued from page 7

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

N EWSWORTHY

Upcoming TDCAA seminars

Advanced Criminal & Civil Law

Update, September 21–23, 2016, at

the Galveston Island Convention

Center in Galveston. The host hotel,

the San Luis Resort & Spa, is sold out,

but TDCAA has contracted with

others:

Hotel Galvez & Spa, a Wyndham

Grand hotel, 2024 Seawall Blvd. The

rate is $99 plus tax for run-of-house

rooms. Call 409/765-7721 and identify

yourself with TX District & County

Attorneys or TDCAA by August 19 to

get this rate.

Hilton Galveston Island Resort (next

to Convention Center), 5400 Seawall

Blvd. Rates are $99 for a single and

$149 for a double (plus tax). Call

409/744-5000 and identify yourself

with TX District & County Attorneys

or TDCAA to get these rates by

August 20.

Tremont House, a Wyndham Grand

hotel, 2300 Ship's Mechanic Row.

Rates are $99 for a single, $129 for a

double, and $139 for a triple (plus

tax). Call 409/765-7721 and identify

yourself with TDCAA by August 26 to

get these rates.

Harbor House, 221st Street. Rates are

$99 for a single, $129 for a double,

and $139 for a triple (plus tax). Call

409/765-7721 and identify yourself

with TDCAA by August 26 to get

these rates.

The Holiday Inn Resort on the Beach,

5002 Seawall Blvd. Rates are $99 for

single and $149 for double occupancy

(plus tax). Call 877/410-6667 and

identify yourself with TX District &

County Attorneys or TDCAA to get

these rates by August 20.

Key Personnel & Victim Assistance

Coordinator Seminar, November 2–4,

at the Embassy Suites Hotel &

Conference Center, 1001 E. McCarty

Lane, in San Marcos. Rates are $119

plus tax for a single or double room;

this rate is good until October 11 or

until sold out. To make reservations,

call 512/392-6450 and identify

yourself with TDCAA.

Elected Prosecutor Conference,

November 30–December 2, at La

Toretta Lake Resort & Spa, 600 La

Toretta Blvd., in Montgomery. Rooms

are $139 plus tax per night. See our

website, www.tdcaa.com/training, for

information on making reservations.

Registration for all TDCAA

seminars is online only at

www.tdcaa.com/training. i

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

he Foundation exists to sup-

port the mission of TDCAA

to train and support today’s

Texas prosecutors. We know that

grant funding can go a long way, but

we want Texas prosecutors to be the

best in the nation, so we continue to

strive to find the resources to do the

job.

I am proud that the Foundation

is able to support the recently com-

pleted Advanced Trial

Advocacy Course at

the Baylor College of

Law. (See a group

photo of the atten-

dees, faculty advisors,

and a few speakers,

below.) This is one of

our best courses, and

it draws major support

from the Foundation.

We all know that the

job of a prosecutor has

gotten more complicated. We no

longer just try our cases and move to

the next. We pay attention and

devote resources to all sorts of issues

in our criminal justice system, from

pre-trial services to diversions to sex

offender civil commitment to victim

services. Our offices have become

pivot points for reform of the crimi-

nal justice system.

And that is good and right. But

there is one constant to this job:

When it is time to stand and

announce, “The State is ready, Your

Honor,” we have to be the best. We

have to truly be in command of the

courtroom and have the skills need-

ed to fight for justice. This course is

designed with that in

mind. This year we again

had students from all over

the state, from Pecos to

Beaumont and every-

where in between, and

faculty from all over the

country. These prosecu-

tors learn from the best to

be the best. We couldn’t

do it without the Founda-

tion and your support.

Thanks to Dean Brad

Toben at Baylor for allowing us to

use the school’s wonderful facilities.

It is a world-class environment for

trial advocacy skills, and the dean’s

continued enthusiasm for our pro-

gram is very gratifying! i

TDCAF NEWS

By Rob Kepple

TDCAA Executive

Director in Austin

Richard Alpert

Don Clemmer

Justin Tony Cunningham

David Escamilla

Gerald Fohn

Dan Hagood

Luke Inman

Micheal Jimerson

Justin Jones

Rob Kepple in honor of John B.

Holmes, Jr., Lyn McClellan,

and Kelly Siegler

Rob Kepple in memory of Gerald

Goodwin

Tom Krampitz in memory of Gerald

Goodwin

Doug Lowe

Lyn McClellan in honor of Bert

Graham

Lyn McClellan in honor of John B.

Holmes, Jr.**

Kim Ogg

Keith Orsburn

J. Kevin Sutton

* gifts received between June 3

and August 5, 2016

** Editor’s note: In the last issue of

this journal, Lyn McClellan’s gift

was mistakenly noted to be in

memory of John B. Holmes, Jr. It

should have been in honor of Mr.

Holmes, as he is very much alive.

We regret that error! We’re glad to

correct it in this issue. We’re also

glad he’s got a great sense of

humor about being erroneously

reported as deceased. i

Recent gifts to the

Foundation*

Advanced training for prosecutors

V ICTIM SERVICES

Notice of a rate increase for CVC

ust recently, the Office of the

Attorney General announced

new rate increases to the Texas

Crime Victims’ Compensation

(CVC) program. This is the first

increase to some claim

limits since the 1990s.

From January 1, 1980

to June 30, 2016, the

program paid out

$1.45 billion involving

225,698 victim appli-

cations.

The increased lim-

its will take effect for

violent offenses com-

mitted on or after July

15, 2016. Here are

some of the changes:

• Funeral and burial limits have

been increased from $4,500 to

$6,500.

• The loss of earnings and loss of

support benefits go from a maxi-

mum of $500 per week to $700.

• Reimbursing child care expenses

increased from $100 per child per

week to $300.

• The crime scene clean-up limit

went from $750 to $2,250.

• Reimbursement for a sexual

assault exam went from $700 to

$1,000.

• Reimbursement for property

seized at a crime scene increased

from $750 to $1,000.

For a detailed list of the new

Texas CVC program claim limits go

to www.texasattorneygeneral.gov/

cvs/crime-victims-compensation-

reimbursable-expenses. And for

more information about the Texas

CVC program, including eligibility

requirements, go to www.texasattor-

neygeneral.gov/cvs/crime-victims-

compensation.

Upcoming training

TDCAA’s Key Personnel & Victim

Assistance Coordinator Seminar will

be November 2–4 at the Embassy

Suites in San Marcos.

Don’t miss this opportu-

nity to learn from the best

speakers in Texas and to

network with prosecutor’s

staff from across the state.

A bonus: The hotel is

within a few minutes’

shuttle ride to two major

outlet malls! Visit

www.tdcaa.com/train-

ing/key-personnel-vic-

tim-assistance-coordina-

tor-seminar for registra-

tion and hotel information. We

would love to see you there!

Key Personnel and Victim

Services Board Elections

Elections for the 2017 Key Personnel

and Victim Services Boards (Regions

1, 3, 5, and 7) will be on November

3 at 1:15 p.m. at the KP/VAC Semi-

nar in San Marcos. (See the map,

below, to find out what region you’re

in.)

Both boards assist in preparing

and developing operational proce-

dures, standards, training, and edu-

cational programs. Regional repre-

sentatives serve as a point of contact

for their region. To be eligible, each

candidate must have the permission

of her elected prosecutor, attend the

elections at the annual seminar, and

must have paid membership dues

prior to the meeting. The bylaws for

the Victim Services board and FAQs

about running for the boards are

posted at www.tdcaa.com/victim-

services.

Professional Victim

Assistance Coordinator

recognition

Certification as a Professional Victim

Assistance Coordinator (PVAC) is

designed to recognize professional-

ism in prosecutor-based victim assis-

tance and to acknowledge a mini-

mum standard of training in the

field. Applicants must provide victim

assistance through a prosecutor’s

office and be or become a member of

the Texas District and County Attor-

neys Association in the Key Person-

nel category to be eligible for this

recognition.

Other requirements include:

• either three years’ experience

providing direct victim services for a

prosecutor’s office or five years’ expe-

rience in the victim services field,

one of which has to be providing

prosecutor-based victim assistance;

• training recognized for CLE,

TCOLE, social work, and/or

licensed professional counselor edu-

cational credits;

• at least one workshop on the fol-

lowing topics:

* prosecutor victim assistance

coordinator duties under Chapter 56

of the Code of Criminal Procedure;

* the rules and application

process for Crime Victims’ Compen-

sation;

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

By Jalayne

Robinson, LMSW

Victims Services

Director at TDCAA

* the impact of crime on vic-

tims and survivors; or

* crisis intervention and sup-

port counseling.

• applicants must show that they

have already received 45 total hours

of training in victim services (which

is equivalent to the number of hours

in the National Victim Assistance

Academy program created by the

U.S. Department of Justice’s Office

for Victims of Crime). Please note

that training documentation may no

longer be readily available for coordi-

nators with extensive experience,

especially in the case of basic training

on CCP Chapter 56. An applicant

who has 10 years’ experience in

direct victim services (five of which

must be in a prosecutor’s office) may

sign an affidavit stating that the

training requirement has been met

in lieu of providing copies of train-

ing receipts.

• five professional references from

individuals not related to the appli-

cant. One must be from the elected

prosecutor in the jurisdiction where

the applicant has been employed and

at least one of the letters must be

from a representative from a local

victim services agency in the com-

munity who has worked with the

applicant for one year or longer. The

remaining three letters can be from

other victim services agencies, crime

victims, law enforcement representa-

tives, assistant prosecutors, or other

criminal justice professionals who

have knowledge of the applicant’s

skills and abilities in the field of vic-

tim services.

The next deadline for submit-

ting PVAC applications is January

31, 2017. Applications can be found

(as a PDF download) at www.tdcaa

.com/victim-services, or look on our

website in the Journal Archive in this

issue.

In-office visits

Thank you to each of the offices that

invited me to come out for victim

services assistance. Traveling across

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

ABOVE: In Montgomery County, I met with the Victim Assistance Division in the morning, then

trained prosecutors in the afternoon on how VACs can help them. Pictured from left to right are Jason

Larman, Jarrod Smith, Philip Harris, Brent Chapell, Taylor Stoehner, Philip Teissier, Sara Corradi, Echo

Coleman, Ilda Rupert, Nancy Hebert, Amber Dana, Joel Daniels, Bradlee Thornton, Jane Viada, Donna

Berkey, Jocellyn Camarillo, Chaco (a service dog), Vince Santini, Tamara Holland, Kyle Crowl, Pam

Traylor, Ranger (another service dog), Tiana Sanford, and me on the far right. BELOW: In Harris

County, I met with the Victim Services staff. From left to right are VACs Cindy Contreras, Vania Delga-

do, Jennifer Gosko, Monica Neal, Martha Cazarez, Alex Guajardo, and Maria Guerrero. Seated is

Michelle Permenter, Director of the Victim/Witness Division; Colleen Jordan is part of the division but

is not in the picture.

Continued on page 12

A S THE JUDGES SAW IT

Defense of a third party

and the meaning of

‘immediately necessary’

elf-defense claims show up reg-

ularly in prosecution, and their

brother, defense of a third par-

ty, only slightly less

often. Both claims

require that force be

“immediately neces-

sary” before they

apply, but neither

statute nor any other

part of the law defines

what “immediately

necessary” means. In

Henley v. State,

the

Court of Criminals

Appeals looked at that

meaning and what is

required for self-

defense or defense of

a third party to apply.

The facts

Gregory Henley and his ex-wife,

Brandy, were going through a cus-

tody dispute. At the time of trial,

Gregory had sole custody of their

two sons, and Brandy had supervised

visitation. The visitation was super-

vised due to claims that Brandy’s

new husband, Douglas, had stran-

gled the boys and Douglas’s 11-year-

old former stepson had sexually

abused them.

On the day of the offense,

Brandy and her mother (who super-

vised the visitations) arrived at Hen-

ley’s house to pick up the boys.

Brandy refused to speak to Henley

other than to tell him to bring the

boys to the car. When he refused, she

called 911 to report that Henley was

violating the court order allowing

her visitation. Henley brought the

boys to the car and put

them in the backseat.

Brandy was sitting in the

driver’s seat waiting for

the police to arrive when

Henley broke off her

door handle, pulled

Brandy out of the car by

her hair, hit her in the

face with his fists, and

knocked her head against

the concrete. When

Brandy’s mother tried to

intervene, he shoved her

back, and she broke her

arm in the fall. Henley

then got in his car—

without his sons—and drove away.

At his assault trial, Henley

claimed defense of a third party, that

his assault of Brandy was justified to

protect his sons from potential abuse

by Douglas or his stepson. He want-

ed to present evidence about the alle-

gations against Douglas and his step-

son and evidence that Brandy had

lied to the family court about living

with Douglas, showing that he had a

reasonable belief that Brandy might

violate the court order about not

allowing Douglas to be around the

boys during her visits. The abuse

allegations were first made in August

2011; this offense was in May 2012.

Henley testified in a hearing that he

became aware of additional allega-

tions a week before the offense, but

Texas and visiting each of your

offices is so exciting to me! It is such

an honor to be able to help victim

assistance coordinators (VACs) and

prosecutors recognize the services

and resources available for crime

victims and to share ideas on how

VACs may assist the prosecutors

with whom they work.

Please reach out to me at

J[email protected], and

I will develop either group or indi-

vidualized victim services training

for your office. i

Continued from page 11

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

By Andrea L.

Westerfeld

Assistant Criminal

District Attorney in

Collin County

In the Washington and Burleson County District

Attorney’s Office, I met with Julie Renken, the DA

(on the far left) and Amanda Schumann, VAC (in

the center). That’s me on the far right.

he did not contact CPS or the police

or make any attempt to modify the

custody orders in that time. After

several hearings outside the jury’s

presence at different points of the tri-

al, the trial court ruled that the evi-

dence was irrelevant and thus inad-

missible.

“Immediately necessary”

Both self-defense and defense of a

third party share the requirement

that the actor believe his use of force

is “immediately necessary” to protect

himself or a third party. The term

“immediately necessary” is not

defined in either statute or elsewhere

in the Penal Code. Although the

Court has not considered the imme-

diacy requirement in the defense of a

third person context, it drew the

analogy to a similar justification

defense: necessity. The necessity

defense justifies conduct if the actor

believes the conduct is “immediately

necessary to avoid imminent

harm.”

Imminent harm means

harm that is ready to take place;

therefore, for conduct that is imme-

diately necessary to avoid imminent

harm, “that conduct is needed right

now.”

For force to be “immediately

necessary” to protect another, it

must be force that is needed at that

moment, “when a split-second deci-

sion is required.”

A defendant has the right to

present evidence relevant only to a

valid justification defense.

Other-

wise the evidence is irrelevant and

inadmissible. Thus, Henley turns on

whether the evidence showed a valid

defense of a third party justification

to the assault charge. If not, the evi-

dence was inadmissible. The Court

concluded that even if all of Henley’s

evidence was true—giving reasons

why he did not trust Brandy to

watch the boys and why he was

angry at her ignoring his concerns—

it still did not do anything to justify

assaulting her because there was no

split-second decision that it was nec-

essary to assault her to protect his

children. Neither Douglas nor his

former stepson were present at the

time, and there was no evidence that

there was any imminent danger of

them coming into contact with the

boys. Henley’s evidence focused only

on his fears based on information

that was, at best, a week old. Any

potential harm he feared was “nei-

ther immediately present nor certain

to occur in the immediate future.”

In considering whether the

threat was imminent, the Court not-

ed the number of other alternatives

Henley could have taken to address

his concerns if he was afraid the boys

were in danger.

He could have

sought out a temporary restraining

order to prevent Brandy’s visit, filed

for a change in the custody arrange-

ment with the family court, or noti-

fied CPS or the police. Indeed,

because Brandy had already called

911 and was waiting on the police to

arrive when Henley started assault-

ing her, he could have just waited for

the police and explained his concern.

The Court also pointed out that

Henley created the danger by first

putting his sons in Brandy’s car and

then assaulting her. He also left his

sons behind (and possibly in danger)

when he drove away after the assault.

In all, the Court decided that Hen-

ley’s evidence helped make his anger

more understandable, but it did not

provide a valid defense.

In short, the Court concluded

that to be justified to use force to

protect a third person, the person

had to have been in immediate dan-

ger, not danger from an “imagined

future scenario.”

Because Henley’s

evidence did not show that Douglas

or his former stepson were present or

that Brandy or her mother were

about to endanger the boys, his evi-

dence did not support defense of a

third party.

Going forward

What does Henley mean for practi-

tioners? Importantly, the Court’s

decision was not unanimous, spawn-

ing three dissenting opinions and

one concurring opinion. Two of the

dissents argued that Henley was enti-

tled to present evidence on the issue

even if a jury might not have found

reasonable his belief that force was

immediately necessary.

This high-

lights how dangerous a road a prose-

cutor faces when trying to exclude

requested jury charges. Any evidence

raising a defense—no matter how

weak, impeached, or contradicted—

requires it to be included in the jury

charge upon request.

Here, the

majority opinion relied on the con-

clusion that even if Henley’s evi-

dence was fully believed, it still did

not raise the defense and thus the

evidence was irrelevant. It is impor-

tant for prosecutors to remember

that the question is not whether the

evidence is believable but simply

whether it exists.

Presiding Judge Keller’s dissent

raised a different issue. She believed

that the majority ruling added an

extra imminency requirement to the

statute. The statute requires that

force only be immediately necessary,

not that it be immediately necessary

Continued on page 14

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

to protect against imminent use of

force. This, Keller believes, is to pre-

vent a “point of no return” event

from returning, where it may be the

last opportunity to use force even

though the danger itself is in the

future.

However, even this danger

was not present in Henley, as there

was no indication that dragging

Brandy out of the car while she wait-

ed for the police to arrive was the

“point of no return” after which

Henley’s sons would inevitably find

themselves facing danger. But in

another case where the danger may

not be immediate but the need to act

is—perhaps if Brandy had been

threatening to take the boys away to

hide with her and Douglas and Hen-

ley had no other opportunity to stop

her—a court may find that such cir-

cumstances do satisfy the immediacy

requirement. The important factor

to keep in mind is thus not whether

the danger is about to happen, but

whether the defendant’s actions were

necessary at that moment to prevent

the danger.

In light of the concerns raised by

the dissents, it is important not to

get carried away with this victory for

the State. Small changes in Henley’s

facts could have resulted in a very

different opinion. But in cases where

the defendant is claiming to have

been acting under self-defense or

defense of a third party based on

purely an “imagined future scenario”

instead of a danger actually close at

hand, this case is an important

weapon in the prosecutor’s arsenal.

A defendant cannot simply use his

imagination to think of a possible

danger in the future to justify an

assault in the present. The danger

must be in some way near at hand or

immediate, or the assault is just an

assault. i

Endnotes

Henley v. State, No. PD-0257-15, 2016 WL

3564247 (Tex. Crim. App. June 29, 2016).

The strangling allegation was later found not

true, and the sexual assault allegation was found

to be true.

Tex. Penal Code §9.22.

Henley, slip op. at 19.

Id. at 20.

Id. at 5.

Id. at 21-22.

Id. at 22.

Id.

Id. at 25.

Id., Hervey, J., and Newell, J., dissenting.

Beltran v. State, 472 S.W.3d 283, 290 (Tex.

Crim. App. 2015).

Henley, slip op. at 2 (Keller, P.J., dissenting).

Continued from page 13

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

e at the association offer to our

members a 12-page booklet

that discusses prosecution as a career.

We hope it will be helpful for law

students and others

considering jobs in our field.

Any TDCAA member who

would like copies of this

brochure for a speech or a

local career day is welcome

to email the editor at

[email protected] to

request free copies. Please

put “prosecutor booklet” in

the subject line, tell us how

many copies you want, and

allow a few days for delivery. ❉

Prosecutor booklets

available for members

N EWS

W ORTHY

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

N EWSWORTHY

Photos from our Prosecutor Trial Skills Course

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

N EWSWORTHY

Photos from our Advanced Trial Skills Course

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

Q UOTABLES

A roundup of notable quotables

Have a quote to share? Email it to Sarah.W[email protected]. Everyone

who contributes one to this column will receive a free TDCAA T-shirt!

“‘Pokemon Go’ is

not a valid defense

for violating a no-

contact order.”

—@lawyerthoughts on Twitter

“We just want

people to hire us,

either as lawyers or

for their bar

mitzvah.”

—Waco defense attorney Will Hutson,

who, along with law partner Chris

Harris, wrote and recorded “Don’t Eat

Your Weed,” a song they uploaded to

YouTube (www.youtube.com/watch?

v=nQZRA7wft1I). It’s been viewed

more than 331,000 as of press time.

(http://www.texarkanagazette.com/ne

ws/texas/story/2016/jul/12/singing-

lawyers-send-message-dont-eat-your-

weed/631143/)

“Yeah, if you are speeding through McLennan

County, you just might get pulled over by The Dude.”

—actor Jeff Bridges, well-known for playing The Dude in The Big Lebowski,

at the premiere of Hell or High Water, a new movie in which he plays a West

Texas sheriff. He based his performance on McLennan County Sheriff Parnell

McNamara, and the two men hit it off so well that Sheriff McNamara made

Bridges an honorary deputy. An audience member at the premiere asked

Bridges about being deputized, and he proudly whipped out his ID card so

everyone could see it. (hwww.wacotrib.com/news/mclennan_county/sheriff-

mcnamara-the-inspiration-for-jeff-bridges-new-movie-role/article_c3c1b95b-

e27b-5ec5-afbd-344941f6f606.html)

—Dallas Police Chief David O. Brown,

at a press conference after five Dallas

peace officers were killed at a protest.

(www.nytimes.com/2016/07/12/us/dal

las-police-chief-brown-protests.html)

“They tell me before she became hooked on heroin,

she was a very loving and attentive parent.”

—James Bogen, court-appointed attorney for April Corcoran, 32, of Ohio.

Corcoran was sentenced to 51 years to life in prison for loaning her 11-year-

old daughter to her drug dealer in exchange for heroin. Judge Leslie Ghiz,

who sentenced Corcoran, told her from the bench that this was by far the

worst crime that had come before her in her 3

⁄2 years as a judge.

(https://www.washingtonpost.com/news/morning-mix/wp/2016/07/20/the-

worst-thing-that-has-come-before-this-court-ohio-mom-financed-her-

addiction-by-letting-drug-dealer-rape-her-child/)

“As reflected by many public speeches that he gave to various organizations

and graduation ceremonies, he was eternally grateful for the opportunity

that America gives to those who work hard, particularly to a young barefoot

boy who herded goats and later graduated from law school.”

—Obituary for the late Honorable Gerald Goodwin, onetime district attorney and district judge in Angelina County (and a

member of our Foundation’s Texas Prosecutors Society), who died in August after a battle with lung cancer.

(http://www.legacy.com/obituaries/lufkindailynews/obituary.aspx?page=lifestory&pid=180947871)

“Every societal failure, we put it off on the cops to solve. Not enough

mental health funding—let the cop handle it. Not enough drug addiction

funding—let’s give it to the cops. Here in Dallas we got a loose dog

problem. Let’s have the cops chase loose dogs. Schools fail—give it to the

cops. Seventy percent of the African-American community is being raised

by single women. Let’s give it to the cops to solve that as well. Policing was

never meant to solve all those problems.”

Assessing the crime scene

Back at the house, officers executed

the search warrant, cataloging the

shocking state of Allison’s room.

“Her room looked like a hoarder’s

house,” one investigator said. One of

us, John, also responded to the call

and witnessed it first hand. In my 15

years as a prosecutor, I’ve seen some

awful crime scenes, but none has

haunted me like that house. Clothes

and various junk cluttered the entire

area, with barely any space to walk to

or from the crib. A bottle of curdled

chocolate milk rested on a table a

few feet from where Allison slept.

The floor was littered with discarded

Chef Boyardee-type food tins.

Not five feet from the crib, a

dead mouse laid in a trap on the

floor. The floor was also sprinkled

with rodent droppings. The wall

next to the crib was smeared with

dried fecal matter. The mattress in

the crib had a hole in it, and an

indentation indicated Allison had

been lying in one spot. Duct tape

held the old crib together. When

investigators pulled the crib back

from the wall, they found a huge pile

of human feces on the floor against

the wall. In the crime scene photos,

it almost looked like large scoops of

chocolate ice cream.

In the kitchen, the refrigerator

was dead and overgrown with mold.

Other than some ice coolers with

lunch meat, investigators could

locate no edible food in the room.

One cooler did contain several cold

beers, and the cabinets above the

stove were filled with empty cigarette

boxes. The living room with the TV

and the other bedrooms were much

cleaner than Allison’s room.

While investigators were on

scene, Robin Payne arrived home

with a bottle of chocolate milk. Ms.

Payne identified herself as Allison’s

mother and said she had been at a

community college and left Allison

with her son, Brandon.

Ms. Payne said she was “awfully

ashamed” for Allison’s condition and

that she “had no excuse for it.” Ms.

Payne told the detective that she

knew she had failed her daughter

and that she should be doing better

for her.

In that interview, Ms. Payne also

said she had not taken Allison to a

doctor in two years and that she had

not seen a dentist in five. The unem-

ployed Ms. Payne said she had been

meaning to call for a doctor for Alli-

son, but “there just aren’t enough

hours in the day.” Finally, Ms. Payne

said she was receiving $710 a month

in Social Security disability for her

daughter.

Finding the right charge

Law enforcement sent the case over

as a grand jury referral for injury to a

disabled person. While the medical

records indicated that Allison may

have been dehydrated and malnour-

ished, she had no significant injuries.

Also, because she was unable to com-

municate, Allison could not tell us

whether her condition caused her

physical pain.

In scouring the Penal Code for

the best charge, we located exploita-

tion. In 15 years as a prosecutor, I

(John) had never reviewed or

charged an exploitation offense. Sec-

tion 32.53 of the Penal Code defines

exploitation, a third-degree felony, as

the “illegal or improper use of a

child, elderly individual, or disabled

individual or [of their resources] for

monetary or personal benefit, profit,

or gain.” Additionally, exploitation

can be intentional, knowing, or reck-

less.

Exploitation neatly fit our set of

facts. First, the charge did not

require that we prove bodily injury.

Second, it was broad enough that in

proving that Allison’s resources were

used for Robin Payne’s monetary or

personal benefit, we could focus on

the Social Security money that Ms.

Payne took for her daughter’s provi-

sion coupled with the substandard

care that she provided, including the

lack of medical or dental care, filthy

conditions of the room and crib, and

lack of hygiene. Additionally, the

Adult Protective Services investiga-

tion, which started the day Allison

was found and concluded four

months later, expressly determined

that Robin Payne exploited her

daughter and found significant med-

ical and physical neglect, so we had

an expert report to support the

charge. Based on this information,

the grand jury returned an indict-

ment for exploitation.

The bench trial

On the eve of trial, defense counsel

said her client wanted to plead guilty

and go open to the judge at a bench

Continued from the front cover

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

C OVER STORY

Wichita Falls horror story (cont’d)

trial on punishment. We consented.

Our trial strategy was to call

almost every law enforcement officer

who responded to the scene to

explain it was one of the most horrif-

ic crime scenes each had seen in his

law enforcement career. In total, we

had eight officers testify that they

had been in numerous messy houses

and seen many disturbing things,

but that this house and the condi-

tions that Robin Payne had subject-

ed Allison to were some of the very

worst things these veteran officers

had seen. Months later, these officers

were still visibly shaken from what

they had witnessed in Allison’s room.

We also called several of Ms.

Payne’s neighbors. Two said they

thought Allison had been committed

to a facility because they never saw

her in the neighborhood after the

young woman had stopped going to

Dayhab, a daycare-like facility for

the disabled, five years before. Ms.

Payne’s next door neighbor, who was

a bit like the nosy neighbor Gladys

Kravitz on the old ’60s TV show

Bewitched, said she became so con-

cerned about never seeing Allison

that she point-blank asked Ms.

Payne why Allison never left the

house. Ms. Payne claimed that Alli-

son was “allergic to the sun” so she

could not bring her outside. Allison’s

pediatrician, however, testified that

she had no such condition. We

believed this testimony was impor-

tant to show that Allison had been

willfully confined inside the house.

The neighbors testified that

while they often saw Ms. Payne

walking her dogs in the neighbor-

hood, they never saw her taking Alli-

son out to get some sun and fresh air.

Ms. Payne’s lie about the sun allergy

also helped demonstrate her con-

sciousness of guilt.

Dr. Kenneth Sultemeier, a pedi-

atrician who had treated Allison

since she was baby, was also a key

witness. He explained that Allison

had hydrocephalus and shunts in her

brain. She had complications with

these shunts, and the doctor said

they needed to be checked regularly

by a physician. Additionally, Allison

had a seizure disorder for which she

needed regular medical care.

Dr. Sultemeier said Ms. Payne

knew of these critical medical condi-

tions but that she had not brought

Allison to see him in five years, and

Ms. Payne admitted on the stand

that Dr. Sultemeier was the last doc-

tor to have seen Allison. Thus, the

doctor’s testimony established that

Robin Payne had lied regarding Alli-

son’s last doctor’s visit. While Ms.

Payne repeatedly claimed it had been

only two years, actually five years

had elapsed since a doctor had exam-

ined Allison.

To establish motive for the

exploitation, we called the care facil-

ity administrator at the first facility

where Allison had lived after her

removal from the Payne house. The

administrator confirmed that while

Medicaid would help pay for care for

a patient like Allison, her mother

would have to assign over her dis-

ability payments to the facility. The

administrator also testified that

patients like Allison received regular

perineum care, which demonstrated

the type of intimate cleaning a

patient like Allison needed and

would receive in an inpatient facility.

This evidence showed the

motive: Ms. Payne was denying her

daughter inpatient care that she des-

perately needed because she would

have to relinquish the monthly dis-

ability payments. Thus, the old

adage of “follow the money” applied

to our case.

The State’s case ended with Nik-

ki Ross, a veteran Adult Protective

Services investigator. We designated

Ms. Ross as an expert witness in the

investigation of exploitation and

neglect. Ms. Ross detailed her thor-

ough investigation and her conclu-

sions that Ms. Payne had medically

and physically neglected Allison and

that she had exploited her daughter’s

resources.

Significantly, Ms. Ross detailed

all of the social services that were

available for a disabled individual,

such as adaptive medical equipment,

medical treatment, and home health

nurses through Medicaid. Yet the

only social services that Ms. Payne

had taken advantage of were food

stamps and disability payments,

which directly benefitted herself.

Ms. Ross also testified that it was

clear from looking at Allison that

“Ms. Payne wasn’t spending much

money on her.”

Emergency room records indi-

cated Allison was malnourished, but

the defense questioned Dr. Sulte-

meier about Allison’s lab numbers,

and the doctor replied that they were

all normal and not indicative of mal-

nourishment. We wound up not

emphasizing that at trial. Allison had

a voracious appetite when she was

placed in care and gained 10

pounds—but disabled people in her

condition will eat and eat and eat, we

were told, so it is hard to say if her

appetite was because of malnourish-

ment or because of her disabilities.

Finally, Ms. Ross testified that in

Continued on page 20

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

approximately 2,500 cases of adult

abuse and neglect that she had inves-

tigated, this was the single worst case

of a child’s exploitation and neglect

by a parent.

The defense case

Rather than accept responsibility

and claim that the defendant was

just overwhelmed and had let the sit-

uation get out of control (which is

what Robin Payne had told the

detective the first time she spoke

with him), the defense decided to

deny that Ms. Payne had exploited

Allison and instead blamed law

enforcement for her daughter’s con-

dition. (That’s right: Ms. Payne pled

guilty but then tried to shift the

blame for Allison’s condition else-

where. We were befuddled as to that

trial strategy.)

Ms. Payne and several other wit-

nesses testified that on that morning

when Robin left for class, Allison

was clothed and clean, that there was

no fecal matter smeared on her crib

or bedroom walls, and that there was

no dead mouse on the floor. Rather,

they claimed that when law enforce-

ment arrived, Allison had just

escaped her clothes and had a bowel

movement. Allison had “fast-drying”

fecal matter, they said, and she often

“pooped balls and balls and balls—

massive amounts—of poop.” Thus,

they claimed law enforcement was

responsible for Allison’s situation,

which the defense claimed had dete-

riorated rapidly only after the offi-

cers arrived and intervened.

This absurd testimony was

rebutted by two first responders who

cared for Allison. Both testified that

they had encountered many situa-

tions where people had lost control

of their bowels and then not been

discovered for up to 24 hours, but

Allison’s situation was worse than

those. Rather, they said it was clearly

something that took days if not

weeks to deteriorate to that point.

While Ms. Payne testified that

her son Brandon was an appropriate

babysitter, Brandon himself testified,

“I’m not a babysitter. I’m not a role

model. I’m not a daycare provider. I

don’t change diapers.”

Sadly, trial testimony also

revealed that Ms. Payne rarely went

to see Allison after her placement in

a residential care facility.

The perjury

During her direct testimony, Ms.

Payne went through her alleged

expenditures for Allison. She

claimed to have spent close to $700 a

month on her and claimed not to be

able to account for only $20. This

directly contradicted the informa-

tion she had given to the APS inves-

tigator, when she had trouble

accounting for much more of Alli-

son’s money.

When defense counsel asked if

she ever spent Allison’s money on

herself, Ms. Payne said that she had

not. We were surprised that Ms.

Payne had just denied the offense for

which she pleaded guilty. Important-

ly, she had previously signed a judi-

cial confession where she swore she

had exploited Allison.

On cross-examination, John

asked her if she was familiar with the

legal definition of exploitation. She

said that she was and that her attor-

ney had explained it to her. Then I

asked her if under the legal defini-

tion of exploitation in Texas, did she

ever exploit her daughter? “No, I did

not exploit her,” she replied.

Later that week, the grand jury

indicted Ms. Payne for aggravated

perjury because she had sworn to

two directly contradictory state-

ments under oath, both of which

could not be true.

The sentence

“The true measure of any society can

be found in how it treats its most

vulnerable members,” Gandhi once

said, and John used this quote at

closing. If this is a true standard for

society, then isn’t it also a true way to

measure crimes against the most vul-

nerable? For a mother to exploit her

daughter who was so completely vul-

nerable, so completely dependent, so

completely unable to speak up for

herself was a special kind of evil.

Judge Bob Brotherton sentenced

Ms. Payne to six years in prison and

said that he was especially offended

at the terrible conditions she left

Allison in compared to the rest of the

house. He said it was clear that Ms.

Payne was providing a better stan-

dard of living for herself and the oth-

er adults in the house than for her

disabled daughter. Following the

judge’s prison sentence, we permit-

ted Ms. Payne to plead to misde-

meanor perjury, whose sentence will

run concurrently with the exploita-

tion sentence.

Allison is now placed in a new

residential care facility in Wichita

Falls. When we went by to see her,

she was in a clean bed with fresh

clothes and a bow in her hair. She

often watches the Disney Channel,

and she is happy. i

Continued from page 19

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

ditor’s note: This article ran in

the last issue of this journal, and

due to editing errors (not those

of the author), several mistakes were

included in it. We regret those errors

and reprint the article here

in its entirety so that the

correct information is

readily available and

apparent.

s the defense

attorney walked

toward me with

widened eyes, Code of

Criminal Procedure in

hand, I knew what was

coming. “How do I

explain to him that what

he is charged with

requires lifetime sex

offender registration?” she asked on

her client’s behalf. “Is there some-

thing I can point to in the code?”

This was not the first (nor would it

be the last) time I’ve fielded such

questions from a criminal defense

attorney. I’m sure many prosecutors

have been in the same position many

times. Having tiptoed through the

minefields that are the sex-offender

registration laws, I thought I would

share what I have learned for the day

that you find yourself in just such a

situation.

Where to start

There are two steps to figuring out if

an offense requires sex offender regis-

tration and for how long. First, it is

important to understand what

offenses fall under the registration

requirement, which is found in Code

of Criminal Procedure Art.

62.001(5). See the chart on the next

page for an at-a-glance list of offenses

and their registration requirements.

A reportable conviction does not

have to be a final conviction or result

in a prison sentence.

Offenders given

deferred adjudication

for any offense listed

in this section are

subject to the regis-

tration requirements

except with regard to

the second violation

of Indecent Exposure

and any out-of-state

offenses (as noted in

the chart). This

includes an adjudica-

tion of delinquent

conduct as a juvenile offender.

When does the

registration expire?

The rules about when registration

requirements expire are found in

Code of Criminal Procedure Art.

62.101. An adjudication of delin-

quency will have a 10-year registra-

tion requirement. Offenses that have

a lifetime registration requirement

are either Sexually Violent Offenses

(that list is set out in CCP Art.

62.001(6)) or specifically enumerat-

ed offenses under Code of Criminal

Procedure Art. 62.101(a). All other

offenses that are designated as

reportable convictions or adjudica-

tions in Art 62.001(5) that do not

fall into the lifetime registration

requirement list will have a 10-year

registration requirement.

The 10

years begins at the conclusion of the

latest part of an offender’s sen-

tence—in other words, the duty

expires on the 10th anniversary of

the offender’s release from a penal

institution, discharge from commu-

nity supervision, or dismissal of the

proceedings and offender’s release,

whichever is latest in time. For a

juvenile, the duty expires on the 10th

anniversary of the case’s disposition

or the completion of the terms of

that disposition, whichever is later in

time.

Note: Second-degree obscenity

is laid out as a lifetime registration

offense under CCP Art.

62.101(a)(5), but it is not listed in

Art. 62.001(5) as a reportable con-

viction or adjudication. A reasonable

conclusion based on the detailed list

of reportable convictions and adjudi-

cations is that this offense does not

require sex offender registration. But

let’s keep an eye on this one to see if

the legislature reconciles this discrep-

ancy in the future.

Charges not requiring

registration

One might guess that any offense

involving sexual conduct and a

minor would have a registration

requirement, but that is not the case.

In fact, some cases involving prosti-

tution and children fall under the

category of reportable convictions or

adjudications, and some do not.

Here are some (but not all) of the

Penal Code offenses that do not have

any registration requirement (i.e.,

they are not specifically enumerated

in CCP Art. 62.001(5)):

• §20A.03 Continuous Traffick-

By Hilary Wright

Assistant Criminal

District Attorney in

Dallas County

C RIMINAL LAW

“Does the defendant have to register?”

An all-in-one guide to the sex-offender registration requirements

Continued on page 22

ing of Persons (even though

20A.02(3), (4), (7), and (8) Traffick-

ing of Persons offenses have a life-

time registration requirement),

• §21.12 Improper Relationship

between Educator and Student (even

if the student is a child),

• §39.04 Improper Sexual Activi-

ty with Person in Custody (even if

the person in custody is a juvenile),

• §21.15 Improper Photography

or Visual Recording (even if the

complainant is a child),

• §43.03 Promotion of Prostitu-

tion (even involving a person under

18 engaging in prostitution),

• §43.04 Aggravated Promotion

of Prostitution (even when using as a

Continued from page 21

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

Convictions and adjudications that require sex-offender registration

Offense (Penal Code section) Length of Registration

Unlawful Restraint of a victim under 17 (§20.02) 10 years (lifetime if already a sex offender

as an adult)

Kidnapping of a victim under 17 (§20.03) 10 years (lifetime if already a sex offender

as an adult)

Aggravated Kidnapping of a victim under 17 (§20.04) 10 years (lifetime if already a sex offender

as an adult)

Aggravated Kidnapping involving intent Lifetime

to violate or abuse the victim sexually (§20.04(a)(4))

Trafficking: Sex labor through force, fraud, or coercion (§20A.02(a)(3)) Lifetime

Trafficking: Benefit from sex labor (§20A.02(a)(4)) Lifetime

Trafficking: Sex labor of child under 18 (§20A.02(a)(7)) Lifetime

Trafficking: Benefit from sex labor of child under 18 (§20A.02(a)(8)) Lifetime

Continuous Sexual Abuse of young child or children (Penal Code §21.02) Lifetime

Indecency with a Child by contact (§21.11(a)(1) Lifetime

Indecency with a Child by exposure (§21.11(a)(2) 10 years (lifetime if already a sex offender

as an adult)

Sexual Assault (§22.011) Lifetime

Aggravated Sexual Assault (§22.021) Lifetime

Prohibited Sexual Conduct (§25.02) Lifetime

Burglary with intent to commit sexual felonies

(§32.02(d)) Lifetime

Compelling Prostitution by force, fraud, or coercion (§43.05(a)(1)) 10 years

Compelling Prostitution of a child under 18 (§43.05(a)(2)) Lifetime

Sexual Performance by a Child (§43.25) Lifetime

Possession or Promotion of Child Pornography (§43.26) Lifetime

Any attempt, conspiracy, or solicitation to commit 10 years

any of the above offenses (§§15.01–15.03)

Indecent Exposure upon a second violation 10 years

(which cannot be a deferred adjudication) (§21.08)

Online Solicitation of a Minor (§33.021) 10 years

Prostitution if the person solicited is younger than 18 10 years

[as of September 1, 2015] (§43.02(c)(3))

A violation of the laws of another state, a foreign country, federal law, or Lifetime for substantially similar offenses

the Uniform Code of Military Justice for or based on the violation of an to those listed as “sexually violent

offense containing elements substantially similar to any offense as listed offenses in CCP Art. 62.001(6);

above, but not if the violation results in a deferred adjudication otherwise, 10 years

Adjudication of delinquency for any offense above 10 years

§21.02 Continuous Sexual Abuse of young child or children, §21.11 Indecency with a Child, §22.011 Sexual Assault, §22.021 Aggravated Sexual Assault,

§25.02 Prohibited Sexual Conduct, or §20.04(a)(4) Aggravated Kidnapping involving intent to violate or abuse the victim sexually

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

prostitute one or more persons

younger than 18 years of age), and

• §43.23(h) Obscenity, when the

obscene material depicts or describes

activities engaged in by a child under

18, a person indistinguishable from a

child under 18, or an image depict-

ing an identifiable child (see the note

above about obscenity).

It could be important to note

these distinctions in the code when

reviewing a case pre-indictment to

determine whether the appropriate

offense is being alleged. They can

also be useful bargaining chips in

plea negotiations.

Charging strategies

Often, the sticking point of a plea

for a reportable conviction or adjudi-

cation offense ends up being the sex

offender registration requirement.

Attorneys will try to negotiate for a

10-year registration instead of life-

time—or for none at all. Sex offend-

er registration will apply to all of the

offenses listed in CCP Art.

62.001(5) even if the outcome is

deferred adjudication.

Occasionally the facts of an

offense will merit an indictment for

an attempt of a sexually violent

offense. While this lowers the pun-

ishment range one level, it will also

remove that offense from the list of

sexually violent offenses which are

enumerated in CCP Art.

62.001(5)(G). Therefore, because

attempted offenses are not otherwise

listed in CCP Art. 62.101(a), the

lifetime registration requirement

would not apply. An attempt of an

offense requiring sex offender regis-

trationwould then fall under CCP

Art. 62.101(b), which is the 10-year

registration requirement.

Sometimes we might look to a

lesser-included offense of a report-

able conviction or adjudication

when making charging decisions.

For instance, when it comes to Penal

Code §20A.02 (Trafficking of Per-

sons) and §43.03 (Compelling Pros-

titution), there are many such possi-

bilities, and taking into considera-

tion whether sex offender registra-

tion will apply can make all the dif-

ference in charging different parties

to an offense, trial strategy, or plea

negotiations. Trafficking involving

prostitution is a lifetime registration

offense no matter the age of the vic-

tim. Compelling prostitution also

requires lifetime registration if the

victim is under 18 but requires only

a 10-year registration for an adult

victim. Both Aggravated Promotion

of Prostitution (§43.04) and Promo-

tion of Prostitution (§43.03) can be

lesser-included offenses for both

Trafficking and Compelling Prosti-

tution, neither of which have a regis-

tration requirement regardless of the

age of the victim or victims. Howev-

er, a §43.02 Prostitution offense

involving a minor child (a second-

degree felony) does have a 10-year

registration requirement as of Sep-

tember 1, 2015. Because there are a

vast number of options, it is worth

combing through the code book and

considering the registration require-

ments of different charges and lesser-

included offenses to find the most

appropriate charge for your case.

Admonishment

Texas law requires that trial courts

admonish defendants of Chapter

62’s registration requirements if they

are convicted of or placed on

deferred adjudication for an offense

for which a person is subject to regis-

tration under that chapter.

The

admonishment must be done prior

to the court accepting the defen-

dant’s plea of guilty or nolo con-

tendere, and it can be either oral or

written. If the admonishment is in

writing, the court must receive a

signed statement from the defendant

and his attorney that the admonish-

ment and consequences of the plea

are understood. If the defendant is

unable to or refuses to sign, the court

must perform the admonishment

orally. Failure to comply with the

admonishment rule is not a ground

for the defendant to set aside the

conviction, sentence, or plea.

Nor

would it be considered a violation of

due process or render the defendant’s

plea involuntary.

Many of you may be familiar

with the Adam Walsh Act, which

went into effect in June 2015. This

federal act includes the early termi-

nation law with regard to sex offend-

er registration and can be found in

Code of Criminal Procedure Chap-

ter 62 Subchapter I. This law allows

an offender whose minimum

required registration period exceeds

the one under federal law for the

same offense to petition the trial

court for early termination after an

individual risk assessment is com-

pleted. The admonishment rule

about sex offender registration does

not, at this time, require that the

defendant be made aware of this law

or the possibility of early termina-

tion of the duty to register. This is

true even though the hearing as to

whether the early termination

should be granted or denied would

take place in the same trial court as

that which sentenced the defendant.

Continued on page 24

dward Smith is a (hypotheti-

cal) defendant facing charges

for aggravat-

ed assault with a

deadly weapon after

hitting his mother

with a baseball bat

during an argument

about going to see a

psychiatrist. He has

been unable to live

on his own for some

time and currently

lives with his mother

at her house. Mr.

Smith is unem-

ployed and relies on

his Social Security

income. He has pre-

viously been diag-

nosed with a severe

mental illness and

has been intermit-

tently adherent to

psychiatric care over

the years.

In this example,

would you as a pros-

ecutor consider rais-

ing the issue of com-

petency when Mr.

Smith’s file lands on

your desk? If so,

what factors suggest

that the issue should

be raised? If not,

what additional information might

lead you to raise the issue of compe-

tency? While a prosecutor may not

have a specific legal duty to always

bring a defendant’s mental

health issues to a court’s atten-

tion, it is a prosecutor’s pri-

mary duty “not to convict,

but to see that justice is

done.”

This overarching

directive makes our questions

above particularly relevant for

today’s prosecutor.

Evaluating a defendant for

either competency to stand

trial or sanity requires knowl-

edge of both the criminal jus-

tice and mental health sys-

tems, as well as an under-

standing of the psychological

and legal factors unique to a

defendant’s particular case. In

general, competency evalua-

tions examine current func-

tioning as it relates to legal

proceedings while insanity

evaluations consider one’s

functioning at the time an

offense occurred. For most

individuals, including those

with severe and persistent

mental illness, competence to

stand trial is not an issue.

Nationally, competency eval-

uations occur at a rate of

50,000–60,000 per year, with

only 20 percent of those eval-

uated deemed incompetent to

stand trial.

Claims of insanity are

even less common, with data sug-

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

Evaluating defendants for

competency and sanity

How experts examine defendants for competency to

stand trial and for sanity at the time of the offense

M ENTAL DEFENSES

Conclusion

Whether it is for plea-bargain nego-

tiations, indictment strategy, or

showing off at cocktail parties,

knowing your way around the sex

offender registration laws is a big

help to prosecutors and criminal

defense lawyers alike. If it is difficult

for an attorney to comprehend, you

can imagine how hard it might seem

to a defendant. My hope is that this

article and the accompanying chart

will guide you past the minefields on

a safe path through this treacherous

ground. i

Endnotes

Tex. Code Crim. Proc. Art. 62.101(b).

Tex. Penal Code §43.23(h).

Tex. Code Crim. Proc. Art. 26.13(a)(5).

Id. at Art. 26.13(h).

Thomas v. State, 365 S.W.3d 537 (Tex. App.—

Beaumont 2012, pet. ref ’d).

Continued from page 23

By Matthew D.

Faubion, M.D.

Forensic Psychiatrist

and Clinical

Director of the

Kerrville State

Hospital, and

Erin M. Foley,

Ph.D.

Forensic Director of

the Department of

State Health Services

in Austin

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

gesting they occur in only 1 percent

of felony cases and are successful

roughly 25 percent of the time.

While the question of competen-

cy is not an issue for most individuals

facing trial, it is helpful to under-

stand when and how the question of

competency should—or could—be

raised. Furthermore, it is important

to know when an insanity evaluation

might follow a competency evalua-

tion and how both sanity and compe-

tency are addressed within the men-

tal health arena. Texas Code of Crim-

inal Procedure Chapters 46B and

46C outline the many details associ-

ated with competency to stand trial

and the question of sanity. Using

Edward Smith as an example, we will

explore some of these elements,

beginning with the issue of compe-

tency.

Competency evaluations

Competency evaluations are here-

and-now assessments. They examine

the defendant’s understanding of the

charges, his understanding of poten-

tial consequences of the criminal pro-

ceedings, and his ability to consult

with an attorney. Competency evalu-

ations are guided by CCP Chapter

46B, which establishes specific crite-

ria that must be addressed, as well as

the qualifications of the examiner

necessary to perform the evaluation.

A qualified expert is either a state-

licensed psychiatrist or psychologist

who has the specialized forensic certi-

fication, training, or experience out-

lined in the statute.

Issues of competency may be

raised by the defense attorney, prose-

cutor, or trial court.

When compe-

tency is called into question, the indi-

vidual raising the issue submits a

brief to the court detailing probable

cause for an evaluation. In the case of

Mr. Smith, several key pieces of

information might raise the issue of

competency: his history as it relates

to psychiatric care, his reliance on his

own Social Security income, his

inability to live on his own, and the

context in which the assault allegedly

occurred. We should also look

beyond the limited information pro-

vided in our case example to any

behaviors that might significantly

interfere with his work with counsel

or his ability to participate in court-

room proceedings.

If the issue of competency is

raised, the court determines through

informal inquiry whether there is evi-

dence from any source (e.g., observa-

tions of the defendant’s behavior or

information from a credible source

that the defendant may be incompe-

tent) to support a finding of incom-

petency. Should there be a determi-

nation that evidence exists to support

a finding of incompetency, the court

will order a formal competency eval-

uation.

If the court orders a competency

evaluation, a qualified expert will be

appointed to examine the defendant.

Competency evaluations consider

information specific to the individual

being assessed; therefore, the infor-

mation requested by an expert evalu-

ator may vary from one case to

another. At a minimum, the evalua-

tor will likely request the incident or

police report associated with the

offense, jail records detailing any psy-

chiatric or medical care received, and

any records of the defendant’s behav-

ior while in the jail. This information

focuses on current functioning and is

consistent with the notion that a

competency evaluation is not neces-

sarily a deep review of someone’s his-

tory.

Competency evaluations often

occur in jail settings and generally

take several hours to complete. In our

case example, evaluating Mr. Smith

should, at a minimum, take into

account each of the factors identified

in statute:

• his capacity to rationally under-

stand the charge brought against him

and the potential consequences of the

pending criminal proceedings;

• his ability to disclose relevant

facts, events, and states of mind to his

attorney;

• his ability to engage in reasoned

decision-making regarding legal

strategies;

• his understanding of the adver-

sarial nature of criminal proceedings;

• his ability to behave appropriate-

ly in the courtroom; and

• his ability to testify.

In addition, Mr. Smith’s evalua-

tion should include an assessment of

whether he has a mental illness or

intellectual disability and, if so,

whether the identified condition has

lasted or is expected to last for at least

one year.

When evaluating Mr. Smith, the

qualified expert would assess the level

of impairment resulting from any

identified mental illness or intellectu-

al disability as well as the specific

impact this illness or disability has on

his capacity to reasonably and ration-

ally consult with his attorney. It was

mentioned previously that Mr. Smith

has received psychiatric care—if he is

currently taking psychoactive or oth-

er medications, the evaluator should

also examine whether the medication

is necessary for Mr. Smith to main-

Continued on page 26

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

tain competency and what effect, if

any, the medication has on his

appearance, demeanor, or capacity to

participate in court proceedings.

Once an assessment is complete,

the information is compiled into a

report and presented to the court for

consideration. Proceedings from that

point on are governed by Subchap-

ters A (General Provisions) and C

(Incompetency Trial) of CCP Chap-

ter 46B.

It is important to note that men-

tal illness is dynamic and may be

subject to periods of exacerbation

when under stress (such as that expe-

rienced while in a jail setting), so

individuals who are deemed compe-

tent at one point in time may need to

be reassessed immediately before tri-

al to address potential shifts in func-

tioning. Defendants should be re-

examined by the forensic evaluator if

there has been any suggestion of

change in mental status. Counsel

should have a low threshold for

requesting that the expert briefly

evaluate the defendant immediately

before trial to ensure that there has

been no deterioration of his compe-

tency for trial.

A finding of incompetence

Mr. Smith was charged with aggra-

vated assault with a deadly weapon.

If found incompetent to stand trial,

he would be committed to treatment

to restore his competency to proceed

to trial. In Texas, there are several

options for restoring a person’s com-

petency.

Individuals may be com-

mitted to an inpatient or residential

care facility (e.g., a state-supported

living center) or released on bail and

restored to competency in an outpa-

tient setting. The setting is deter-

mined by the presiding judge and

takes into consideration factors such

as risk of unauthorized departure,

safety to the community, and clinical

need. Mr. Smith’s offense (aggravat-

ed assault with a deadly weapon) is

among those requiring commitment

to a Maximum Security Unit (MSU)

designated by the Department of

State Health Services (DSHS). Cur-

rently, two state-operated psychiatric

hospitals have designated MSUs,

North Texas State Hospital in Ver-

non and Rusk State Hospital, so Mr.

Smith would receive treatment and

competency restoration services in

one of these facilities. His initial

commitment would be for 120 days.

Had he been committed for an

offense other than one requiring

MSU admission, he would have

been ordered to a non-maximum

security facility (i.e., a state-operated

psychiatric hospital, contracted facil-

ity, or state-supported living center)

or outpatient competency restora-

tion program.

National statistics reveal high

rates of competency restoration,

with approximately 75–90 percent

of individuals restored to competen-

cy within the first 180 days of admis-

sion to services.

In Texas, initial

competency restoration commit-

ments are mandated not to exceed

60 days for a misdemeanor or 120

days for a felony. The head of the

treatment facility may request one

60-day extension of the initial com-

mitment period if it is believed that

the individual can attain competency

during that additional 60-day time-

frame.

Importantly, individuals

may not be committed to a hospital

or other facility or program for a

cumulative period that exceeds the

maximum sentence of the offense for

which he was to be tried (in Mr.

Smith’s case, 20 years).

Mr. Smith would remain in the

MSU until restored to competency

or until he passes the state Danger-

ous Review Board (DRB). The DRB

is a statutorily defined multidiscipli-

nary group that evaluates whether a

person presents as manifestly danger-

ous (i.e., a danger to others and in

need of placement in an MSU to

continue treatment and protect the

public).

If reviewed by the DRB

and found not manifestly dangerous,

Mr. Smith could transition to anoth-

er state facility for continued compe-

tency restoration in a less restrictive

setting. If found dangerous, Mr.

Smith would remain in the MSU for

continued treatment and would be

presented again to the DRB if he

improved or every six months irre-

spective of clinical status. As treat-

ment progresses, additional compe-

tency evaluations would be conduct-

ed by forensic evaluators, and reports

would be prepared for the court’s

consideration in accordance with

requirements laid out in CCP Chap-

ter 46B.

Sanity evaluations

In our example, Mr. Smith was

found incompetent to stand trial and

ordered into inpatient care. If, how-

ever, Mr. Smith had been found

competent to stand trial, there is a

possibility that a separate report

regarding sanity could be obtained.

Of course, it is important to note

that the insanity defense is rarely uti-

lized.

Sanity evaluations are governed

by Subchapter C (Court-Ordered

Examination and Report) of CCP

Continued from page 25

Chapter 46C. In those instances

when insanity is a potential consid-

eration, competency and sanity

reports are often ordered together. A

qualified expert can give an opinion

regarding sanity, but only if the indi-

vidual is first deemed competent to

stand trial. In these instances, the

expert will prepare two separate

reports (i.e., one competency report

and, if competent, a second sanity

report). Information presented in a

competency hearing is much more

limited in nature than information

included in a sanity report and is

statutorily excluded from introduc-

tion in the case-in-chief.

Unlike competency evaluations,

which focus on current functioning,

sanity evaluations are retrospective

assessments. They evaluate one’s

ability to differentiate right from

wrong at the time of an alleged

offense (which often occurred

months, if not years, in the past).

As such, this type of assessment typi-

cally requires a greater amount of

information to best ascertain the

defendant’s mental state at the time

of the alleged offense. The evaluator

may request:

• police reports;

• witness statements (particularly

those describing others’ accounts of

the defendant’s actions and

demeanor);

• mental health records to estab-

lish the nature of the defendant’s

mental illness;

• collateral information from

those who had contact with the

defendant;

• medical records, including drug

or toxicology screens following

arrest; and

• an interview with the defendant.

In addition, other records may

be necessary depending on the

nature of the offense (e.g., an autop-

sy report, assessment of the victim’s

injuries, or school records). In any

case, the retrospective nature of the

sanity assessment generally requires

more information and more of the

evaluator’s time to prepare the neces-

sary report.

Not Guilty by Reason

of Insanity (NGRI)

Assume that Mr. Smith’s insanity

defense was raised successfully. Fur-

ther, imagine that following his

acquittal, Mr. Smith was committed

to inpatient care in accordance with

procedures outlined in CCP Chap-

ter 46C. This order of commitment

would expire on the 181st day fol-

lowing the date it was issued, and the

court would determine annually

whether to renew Mr. Smith’s com-

mitment order. Similar to what was

described for competency restora-

tion commitments, the total com-

mitment period for any person

found not guilty by reason of insani-

ty (NGRI) cannot exceed the maxi-

mum sentence had he been convict-

ed of the crime. This total commit-

ment period may include time in an

inpatient or residential setting as well

as time in an outpatient setting. Typ-

ically, individuals on an NGRI com-

mitment stay in care for longer than

those on a commitment for compe-

tency restoration. Looking at only

the inpatient hospital stays for Tex-

ans deemed NGRI, as compared to

those found incompetent to stand

trial (IST), we find that the average

length of stay in 2015 was 615 days

for the NGRI population and 177

days for the IST population.

Treatment for persons deemed

NGRI is targeted toward those

symptoms of mental illness associat-

ed with dangerousness. Additionally,

treatment focuses on vocational

rehabilitation and building skills

necessary for one to live safely and

productively in the community. For

individuals committed to inpatient

care, release from a psychiatric hospi-

tal takes into consideration factors

related to ongoing treatment needs,

potential dangerousness, and com-

munity safety. Prior to transitioning

out of an inpatient hospital setting,

individuals found NGRI will have a

treatment team recommendation

that they are suitable for community

release; a forensic consultation

detailing their community treatment

needs and violence risk; and, poten-

tially, testimony from treatment

providers in case of a contested

release. Defendants are released only

with the permission of the court.

As a general rule, persons

deemed NGRI stay in the hospital

until their treatment needs can be

met in a community setting and they

are no longer dangerous. Texas does

not have conditional release for per-

sons found NGRI, and there are lim-

ited transitional care options for

those leaving inpatient settings.

Most often, NGRI acquittees are

released on outpatient commitments

that must be renewed annually. If an

individual’s outpatient commitment

is not renewed, then he is no longer

subject to the court. Those released

on an outpatient commitment may

be discharged to a boarding home

under the court’s supervision with

psychiatric care rendered by the local

mental health authority or other

mental health service providers in

the community. These mental health

providers periodically report to the

Continued on page 28

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

court on the individual’s condition,

although the mechanism for this

reporting varies widely across the

state. If an individual currently

under an outpatient commitment

deteriorates and presents as a danger

to others—or otherwise meets civil

commitment criteria—he can be

converted from an outpatient to an

inpatient commitment for contin-

ued treatment in a more structured

setting.

Conclusion

A defendant’s experience of mental

illness can significantly impact his

interactions with the legal system.

Forensic mental health evaluators

can assist in legal proceedings by

helping the parties involved navigate

complex issues that may arise sur-

rounding questions of competency

and sanity. If you have any ques-

tions, please feel free to contact us at

Erin.F[email protected] (or 512/

206-5237) and Matthew.Faubion

@dshs.state.tx.us (or 830/258-

5287). i

Endnotes

Tex. Code Crim. Proc. Art. 2.01.

Mossman D., Predicting restorability of incom-

petent criminal defendants. Journal of the American

Academy of Psychiatry and the Law, 35: 34-43,

2007.

Tex. Code Crim. Proc. Art. 46B.022.

Tex. Code Crim. Proc. Art. 46B.004.

Tex. Code Crim. Proc. Art. 46B.024.

Id.

Tex. Code Crim. Proc. Ch. 46B, Subchapter D

(Procedures after Determination of Incompeten-

cy).

Morris DR and DeYoung NJ. Long-term com-

petence restoration. Journal of the American Acad-

emy of Psychiatry and the Law, 42:81-90, 2014.

Procedures for extended commitments out-

lined in Tex. Code Crim. Proc. Ch. 46B incorpo-

rate the civil commitment standards set forth in

the Health & Safety Code; see Subchapters D–F

for details.

Tex. Code Crim. Proc. Art. 46B.0095; see that

article and Art. 46B.010 for procedures applicable

after the maximum commitment period has run.

Tex. Code Crim. Proc. Art. 46B.105.

Tex. Penal Code §8.01.

Department of State Health Services, Division

of Mental Health and Substance Abuse Services,

Office of Decision Support, June 2016.

Continued from page 27

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

ou’ve just been given your

first really ugly case to present

to the grand jury for an

indictment. There are

hundreds of exhibits to

organize, dozens of wit-

nesses to talk to, and

endless forensic tests

that need to be run for

DNA, fingerprints, and

the like, which will take

who knows how long.

Luckily, you have plen-

ty of time to get all of

that ready, right?

If the defendant is

in jail and you want

him to stay there pend-

ing trial, the answer is a

resounding “nope.” Texas has a

statute governing how long the State

has to be ready for trial before the

defendant must be released from cus-

tody on his own recognizance or giv-

en a bond low enough for him to

secure release on bond. That statute

and how it operates in practice is the

topic of this article.

What’s the rule?

The Code of Criminal Procedure

mandates that a defendant who is in

jail pending trial must be released

either on personal bond or by reduc-

ing the amount of bail required if the

State is not ready for trial of the

criminal action for which he is being

detained within:

• 90 days from the commence-

ment of his detention if he is accused

of a felony;

• 30 days from the commence-

ment of his detention

if he is accused of a

misdemeanor punish-

able by a sentence of

imprisonment in jail

for more than 180

days;

• 15 days from the

commencement of his

detention if he is

accused of a misde-

meanor punishable by

a sentence of impris-

onment for 180 days

or less; or

• five days from the

commencement of his detention if

he is accused of a misdemeanor pun-

ishable by a fine only.

However, those rules do not

apply to a defendant who is:

• currently serving a sentence of

imprisonment for another offense;

• being detained pending trial of

another accusation for which the

applicable period has not yet elapsed;

• incompetent to stand trial, dur-

ing the period of the defendant’s

incompetence; or

• being detained for a violation of

the conditions of a previous release

related to the safety of a victim of the

alleged offense or to the safety of the

community.

What exactly does “ready

for trial” mean?

The prosecutor’s knee-jerk reaction

to this statute may well be to say,

“That can’t really mean I have to be

ready to go to trial on my case within

those deadlines, does it?” The short

answer is, yes.

The State does not have to for-

mally, and without prompting,

announce that it is ready for trial

within the timelines in Article

17.151.

However, once a defendant

raises the issue of the State’s readiness

for trial under Article 17.151 (usual-

ly by way of pre-trial writ of habeas

corpus), the State must then make a

prima facie showing that it is ready

for trial.

In this vein, the Court of

Criminal Appeals has held that “all a

prosecutor has to do to prevent

release of an accused who has been

unable to make bail is to announce

ready in a timely fashion, even if trial

is thereafter delayed for other rea-

sons.”

Remember that the State’s

announcement of ready for trial

must be that the State was ready for

trial within the timeline in Article

17.151—announcing ready at some

hearing on a later date will do no

good.

While the State’s announcement

of “ready for trial,” is sufficient to

make a prima facie showing that the

State is ready for trial, the defense

can then rebut that prima facie show-

ing, including by questioning the

By Zachary

Robichaux

Law Student, South Texas

College of Law, and

Jason Bennyhoff

Assistant District

Attorney in Fort Bend

County

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

C RIMINAL LAW

Free at last?

An examination of the timelines with which the State must comply to avoid

mandatory release of a defendant in custody because the State was not ready for

trial

prosecutors at a hearing.

The courts

have examined the State’s readiness

for trial in somewhat painstaking

detail and have come to sometimes

obvious and sometimes counterintu-

itive conclusions as to whether the

State was actually ready for trial.

Most importantly, these decisions

have gone into deep consideration of

the underlying facts the State would

have to prove and the witnesses the

State would need to present in con-

sidering whether the State would

have been ready for trial within the

timeline.

For example, the State’s

announcement of ready for trial will

not be sufficient where there is no

indictment.

However, the Fort

Worth Court of Appeals held that

the State “may be prepared for trial

even though the indictment that

forms the basis for the prosecution of

the offense is so defective as to be

void.”

In Jones, the Court of Crimi-

nal Appeals held that the State was

not ready for trial within the time-

line because a necessary witness was

not “present or readily available to

testify at any time during the 90 days

following [the] appellant’s arrest.”

By contrast, the absence of certain

items of evidence was found insuffi-

cient to rebut the State’s announce-

ment of ready for trial where the

prosecutor stated that the State was

prepared to go forward without that

evidence.

What if I can’t be ready,

but it’s not my fault?

Too bad. The statute includes no

provision for extending the timelines

due to a delay that is beyond the

prosecutor’s control.

But there is

still some hope. If the defendant is in

jail on multiple counts and any one

of the other counts (felony or misde-

meanor) has not yet reached its time

limit under the statute, then a court

may deny habeas relief to the defen-

dant.

When does the clock start?

The statute mandates that the clock

begins to run from the date of the

“commencement of detention.”

However, what constitutes the com-

mencement of detention is open to

some interpretation. For example,

the Fort Worth Court of Appeals has

held that detention did not start

until the defendant was arrested in

another county at the request of the

county where the crime occurred.

The Waco Court of Appeals has held

that the defendant’s detention did

not begin until the defendant was in

the custody of the county in which

he would face prosecution.

What about the safety of

the community?

The Court of Criminal Appeals has

held that Article 17.151 does not

allow a trial judge to consider victim

or community safety in determining

whether to release a defendant due to

the State’s inability to be ready for

trial.

However, the Court of Crim-

inal Appeals did note that:

[n]othing in the mandatory lan-

guage of Article 17.151 precludes a

judge from imposing a broad range

of reasonable (and even creative)

conditions of release designed to

ensure victim and community

safety like non-contact orders,

house arrest, electronic monitor-

ing, or daily reporting. Article

17.40 acknowledges that a judge

need not turn a blind eye to poten-

tial safety concerns.

Conclusion

In short, the prosecutor must be

ready for trial rapidly should he

desire to keep a defendant who can-

not make bond in jail pending trial.

However, where this is not possible,

as the Court of Criminal Appeals has

pointed out, there are many poten-

tial bond conditions that can be

placed on a defendant when he is

released to help ensure the safety of

the victim or the community. Please

feel free to contact us if we can be of

any assistance. i

Endnotes

Tex. Code Crim. Proc. Art. 17.151 §1.

Tex. Code Crim. Proc. Art. 17.151 §2.

See Jones v. State, 803 S.W.2d 712, 717 (Tex.

Crim. App. 1991).

Id; Ex parte Ragston, 422 S.W.3d 904, 906 (Tex.

App.—Houston [14th Dist.] 2014, no pet.).

Id. at 716.

See id at 717. (State made prima facie showing it

was ready within the 90-day time limit when the

prosecutor said the State “has been ready” for tri-

al).

Applewhite v. State, 872 S.W.2d 32, 34 (Tex.

App.—Houston [1st Dist.] 1994, no pet.).

Ex parte Smith, 486 S.W.3d 62, 66 (Tex. App.—

Texarkana 2016, no pet.).

Ex parte Brosky, 863 S.W.2d 775, 778 (Tex.

App.—Fort Worth 1993, no writ), citing Behrend

v. State, 729 S.W.2d 717, 720 (Tex. Crim. App.

1987).

Jones, 803 S.W.2d at 719.

Ex parte Watson, 940 S.W.2d 733, 736 (Tex.

App.—Texarkana 1997, no writ); Ex parte Sherrill,

No. 12-10-00183-CR, 2011 WL 2638530 (Tex.

App.—Tyler Jun. 30, 2011, no pet.) (not designat-

ed for publication).

See Tex. Code Crim. Proc. Art. 17.151; Rowe v.

State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993).

Ex parte Jagneaux, 315 S.W.3d 155, 157 (Tex.

App.—Beaumont 2010, no pet.).

Continued on page 32

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

recently bought a new charcoal

grill. When I opened the lid to

use it for the first

time, I laughed when I

noticed the warning

inside: “For Outdoor

Use Only.” I thought to

myself, Who would pos-

sibly think it safe to light

a charcoal grill indoors?

Obviously, somebody

somewhere didn’t have

the good sense to keep

his grill on the patio

where it belongs, he

incinerated his living room, and now

Weber is putting everyone on notice

to keep their grills outside.

Absurd warnings like this one

are everywhere. (My wife bought a

hair dryer that advised her not to use

it while sleeping.) As lawyers, we all

know that ridiculous warnings like

these exist only because somebody

devoid of common sense misused a

product, got hurt, and sued the man-

ufacturer for damages. And now

those manufacturers are obliged to

warn everyone else who is similarly

situated.

Some of our society’s laws have

similar origins. The Texas Public

Information Act, for instance, was

born from the ridiculous actions of

those up to no good. In January

1971, attorneys for the Securities

and Exchange Commission filed a

federal lawsuit in Dallas alleging

stock fraud against a number of

Texas legislators.

With a scheme

that would make

Bernie Madoff proud,

several state lawmakers

got rich with quick-

turnaround stock sales

that were financed by

the Sharpstown State

Bank in exchange for

banking legislation.

After this scandal came

to light, it would be

called the Sharpstown

Scandal. The resulting

lawsuit and several successful crimi-

nal prosecutions of those involved

resulted in a big loss of conservative

Democrats in the 1972 election.

The newly elected, less conserva-

tive Democrats and Republicans

went into the 1973 legislative session

with reform on their agendas,

and

the Open Records Act [now known

as the Public Information Act (PIA)]

was one of the many laws passed that

session. The Act is rooted in the ideal

that a successful democratic govern-

ment requires an informed citizenry.

As it exists today, the Act places a

substantial number of obligations on

county and district attorney’s offices.

Knowledge of these obligations and

how to correctly perform them is an

essential part of our duties as attor-

neys and government employees.

At the heart of the Texas Public

Information Act (which is codified

By Zack Wavrusa

Assistant County and

District Attorney in Rusk

County

P UBLIC INFORMATION

Keeping the government’s

actions in the clear

Those in prosecutor’s offices have many duties under

the Texas Public Information Act, and it’s imperative

that we know what they are and that we fulfill them.

Tex. Code Crim. Proc. Art. 17.151.

Balawajder v. State, 759 S.W.2d 504, 506 (Tex.

App.—Fort Worth 1988, pet. ref’d).

Ex parte Smith, 10-13-00243-CR, 2014 WL

702812, at *1 (Tex. App.—Waco Feb. 20, 2014,

no pet.) (not designated for publication).

Ex parte Gill, 413 S.W.3d 425, 431 (Tex. Crim.

App. 2013).

Id.

Continued from page 31

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

in Chapter 552 of the Texas Govern-

ment Code) stands the principle that

government exists to serve the peo-

ple and not vice versa. The Act

expressly states that it is the policy of

the State of Texas that each person is

entitled to complete information

about government affairs and official

acts of public officers and employees.

Under the Act, public servants are

expressly denied the right to decide

what information is and is not good

for the public at large to know. It is

expressly stated that the provisions of

the Texas Public Information Act

will be construed liberally to imple-

ment this principle and in favor of

granting public requests for informa-

tion.

What is public

information?

The definition of public information

within the Act is predictably broad.

It includes “information that is writ-

ten, produced, collected, assembled,

or maintained under a law or ordi-

nance or in connection with the

transaction of official business” of a

governmental body, for the govern-

mental body, or by an individual

officer or employee of a governmen-

tal body in the officer’s or employee’s

official capacity and the information

pertains to official business of the

governmental body.

For offices like ours, “public

information” includes mundane

things like personnel files and

employee salaries, but it also encom-

passes much more sensitive informa-

tion: our case files, the contents of

our emails, and our written corre-

spondence with victims. But don’t

panic! There are some very, very lim-

ited exceptions (which we will get to

later) that protect some of this infor-

mation. A non-exclusive list of

examples of public information can

be found within the Act.

Requests for disclosure

of information

There are a significant number of

scenarios in which the public may

request disclosure of records main-

tained by a prosecutor’s office. If we

are lucky, the requestor will have a

clear objective for the information

she’s requesting. Intrepid reporters

will make the majority of public

information requests—they’ll want

to get the scoop on a recent criminal

offense. But not every public infor-

mation request will be media-relat-

ed. Civil attorneys will want to see

what information in a DWI case is

going to help them win in civil suits.

Concerned taxpayers will want to see

how money in the office is spent.

There is really no end to the variety

of public information requests to

which an office will end up respond-

ing.

Sometimes, the requestor’s end

game won’t be so obvious. An attor-

ney from New York once requested

the start and end dates of every

employee in our office back to a spe-

cific date in 1992. It was a puzzling

request that we simply had to deal

with because we are prohibited from

asking the requestor why he is

requesting the public information.

If your office has not already

done so, it should designate some-

one as the “public information offi-

cer” (PIO) and have that person

respond to requests under the Act.

Having a public information officer

is not required under the Public

Information Act, but it is helpful in a

lot of different ways. First and fore-

most, directing public information

requests to one person (or one group

of people) encourages those people

to familiarize themselves with all of

the particulars of the Act itself. Sec-

ondly, it gives the community a pub-

lic face to identify when their need

for public information from within

your office arises. It’s not necessary

that the PIO be a licensed attorney,

so don’t be afraid to designate an

investigator or clerk as the public

information officer if an attorney is

not available.

If you are in a smaller office like

mine, it might not be practical for a

single person to be solely responsible

for responding to PIA requests, so

make sure that anybody who might

respond to these requests is trained

on your office’s responsibilities in

doing so. I would also strongly

advise having a formal, written poli-

cy on the Public Information Act. It

will help those people tasked with

responding to requests.

The only requirements for valid-

ity under the Act are that the request

1) is in writing (though there isn’t

any particular form that the request

must take) and 2) reasonably identi-

fies the information that is being

sought. Many requests, especially

those coming from out of state,

might come into your office under

the guise of a “Freedom of Informa-

tion Act Request” under the federal

code. Requests made in this name,

even though applicable to federal

agencies only, should be treated as

requests made under the Texas Pub-

lic Information Act.

If the information the requestor

seeks isn’t clear, the governmental

agency is required to contact the

Continued on page 34

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

requestor for clarification.

Subpoe-

nas duces tecum and requests for dis-

covery are not considered requests

under the Texas Public Information

Act.

Responding

to the request

Most of what the public information

officer needs to know about produc-

ing the requested public information

is found in §552.221. An office’s

public information officer must pro-

duce the public information request-

ed for inspection and/or duplication

“promptly.” Our friends in the legis-

lature define promptly as “as soon as

possible under the circumstances,

within a reasonable time, and with-

out delay.”

We can also comply

with the request by sending copies of

the documents via first-class mail or

directing the requestor to an agency’s

website if the requested information

is readily identifiable online.

Sometimes the governmental

body will be actively using the infor-

mation or the information will be in

storage. If this is the case, the

requestor must be given a date and

time when the information will be

available.

If there is going to be a

delay of more than 10 business days

before the information can be pro-

duced for inspection or duplication,

the governmental body must set a

date within a reasonable time when

the requested information will be

available.

The public information officer

has to comply with requests only for

records that exist at the time the

request is made.

There is no obli-

gation to advise the requestor if addi-

tional information comes into exis-

tence later or if it may come into

existence later. There is no obligation

to do legal research on behalf of the

requestor or organize the requested

information for the requestor. The

only caveat is that when information

is available in electronic format, the

public information officer must pro-

vide information in that format if it

can.

If a requestor repeatedly

makes requests for the same infor-

mation that you have already provid-

ed, the PIO may certify that the

information has already been provid-

ed rather than complying with the

request again.

Redaction

Any prosecutor who has ever han-

dled a crime against a person knows

that we sometimes have loads of con-

fidential information in one of our

case files. The drafters of the Act

were not so unreasonable as to

require us to hand this confidential

information over. In specific

instances, the Act allows governmen-

tal bodies to redact information;

those instances are detailed in Sub-

chapter C. The Act handles redac-

tions in two different ways: For cer-

tain redactions, such as Social Secu-

rity numbers,

there is no recourse

for requestors. For others, the

requestor can seek a decision from

the Attorney General about the mat-

ter.

When you are redacting infor-

mation, I suggest you consult the

provision of Subchapter C authoriz-

ing the redaction to determine

whether the requestor can subse-

quently seek action from the Attor-

ney General.

Reasonable charges

Often, public information will be in

a variety of formats. If the informa-

tion is electronic (such as footage

from body or dashboard cameras),

you may provide that to the

requestor in a similar electronic for-

mat.

But as any county commis-

sioner will tell you, writable DVDs

and CDs, paper, and copy toner

don’t come cheap. The Act recog-

nizes this too and allows government

agencies to reasonably charge the

requestor for the costs associated

with responding to his request. Defi-

nitely consult Subchapter F

if you

plan to assess any sort of charge for

the production of the public infor-

mation.

Exceptions and the

Attorney General

If a well-meaning piece of legislation

like the Public Information Act is

going to be successful, it must have

some exceptions. The Act has plenty

of narrowly drawn exceptions, some

of which prosecutors utilize with

regularity. The procedure for doing

so is pretty specific, so take care

when deciding not to disclose infor-

mation.

The exceptions to disclosure are

in Subchapter C of Texas Govern-

ment Code Chapter 552. Not all of

these exceptions are going to be

applicable to a county or district

attorney’s office, but if your office

frequently counsels other county

officials, consult Subchapter C

before you advise an official on

whether an exception applies.

The public information excep-

tion of most interest to a prosecutor’s

office is in §552.108. I strongly sug-

gest that every public information

officer have a hard copy of the

entirety of this section on hand. That

section allows information to be

Continued from page 33

September–October 2016 • The Texas Prosecutor journal • www.tdcaa.com

withheld if the release would inter-

fere with the detection, investiga-

tion, or prosecution of a crime.

Mental impressions and legal reason-

ing of prosecutors are also exempt

under this section.

Texas Government Code

§552.1085 is also helpful for prose-

cutors: It covers the release of sensi-

tive crime scene images. However, a

handful of individuals are allowed to

view these images in spite of the

exception, including next of kin, a

defendant or the defendant’s attor-

ney, and researchers with institutions

of higher education.

If you receive a request for pub-

lic information or are advising a

county official on whether he must

disclose information, and you con-

clude that a public information

exception applies to the requested

information, consult Subchapter G.

It details the process for requesting

an Attorney General opinion on

whether the requested information

falls under one of the exceptions in

Subchapter C.

The basics of requesting an AG

opinion on public information

requests is similar to requesting an

opinion on any other point of law.

Within 10 business days of receiving

the public information request, you

must state for the Attorney General

what public information is being

sought and what exception(s) you

believe apply.

Once you have sent

this request to the AG’s office, pro-

vide the requestor a written state-

ment (within 10 business days of

receiving the request) that your

office wishes to withhold the

requested information and that your

office has asked for a decision from

the Attorney General about whether

the information falls within an

exception to public disclosure.

You

must also send a copy of the written

communication to the Attorney

General asking for the decision or, if

the written communication to the

AG discloses the requested informa-

tion, a redacted copy of that written

communication.

Within 15 days of receiving the

request for information, you must

send the AG written comments stat-

ing the reasons why you believe the

exceptions apply, a copy of the writ-

ten request for information, a signed

statement as to the date on which the

written request for information was

received by the governmental body

(or evidence sufficient to establish

that date), and a copy of the specific

information requested (if a volumi-

nous amount of info was requested,

you can submit representative sam-

ples of it). Label the copy of the spe-

cific information or of the represen-

tative samples to indicate which

exceptions apply to which parts of

the info.

A governmental body that sub-

mits written comments to the Attor-

ney General shall send a copy of

those comments to the person who

requested the information not later

than the 15th business day after

receiving the written request.

before, these comments can be

redacted.

Be very diligent with public

information requests where you

believe an exception applies. The

sooner you send off the request to

the AG, the better. If you fail to

make this request to the AG’s office

on time, the information is pre-

sumed public.

Don’t put yourself

in the position of having to explain

to your elected DA, law enforcement

agency, or a crime victim why sensi-

tive information was released and

your chances for a successful prose-

cution were comprised.

Criminal penalty

Criminal penalties for violation of

the Public Information Act are

found in Subchapter I. There are

three potential violations contained

within the Act;

all three are misde-

meanors punishable by fine and/or

jail time.

Why are these violations impor-

tant? On one hand, we are all prose-

cutors and could very well find our-

selves in a situation where we could

be the attorneys in charge of prose-

cuting one of these violations. These

prosecutions are not common by any

stretch of the imagination, but take

the time to familiarize yourself with

the basic framework of PIA viola-

tions. It’s never fun to have a well-

informed citizen or an upset crimi-

nal investigator in your office

explaining the law to you.

On the other (probably more

important) hand, these offenses are

capable of being committed within a

prosecutor’s office. Think about

some of the people we deal with on a

day-to-day basis who would relent-

lessly pursue a member of a county

or district attorney’s office for com-

mitting one of these violations. I

encourage you all to deny them the

pleasure and train everyone in the

office on the basics of the Texas Pub-

lic Information Act. There isn’t a

prosecutor, investigator, or support-

ing staffer who doesn’t need a primer

on the Act and a copy of the office’s

record retention policy. Even though

I wasn’t able to find any cases where a

Continued on back cover

www.tdcaa.com • The Texas Prosecutor journal • September–October 2016

Texas District & County Attorneys Association

505 W. 12th St., Ste. 100

Austin, TX 78701

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prosecutor’s office violated the PIA,

I’m sure you won’t want to be the

first. And there are a few examples

where other governmental agencies

got themselves mixed up in a suit

with the AG’s office. Let them be a

warning to all of us.

Conclusion

The Public Information Act is an

unfamiliar law for a lot of prosecu-

tors—but it shouldn’t be. Take time

to familiarize yourself with this legis-

lation, bring staff up to speed on its

content, and keep them updated on

the periodic changes from the legis-

lature. Don’t let a lack of training on

this law burn you or a member of

your staff. i

Endnotes

www.texastribune.org/tribpedia/sharpstown-

stock-scandal/about/, accessed July 31, 2016.

https://tshaonline.org/handbook/online/arti-

cles/mqs01, accessed July 31, 2016.

Id.

Texas Gov’t Code §552.001(a). (All subsequent

statutory citations will refer to the Texas Govern-

ment Code.)

§552.002.

§552.022.

§552.222(a). While the governmental agency

can’t inquire as to the reason for the requested

information, if the request is voluminous the

agency can confer with the requestor to see how

the request might be more tailored, as provided

by §552.222(b).

§552.222.

§552.0055.

§552.221(a).

§552.221(b) –(b-1).

§552.221(c).

§552.221(d).

§552.002.

§552.228(b).

§552.232.

§552.147.

For example, see §552.138(d).

§552.228(b).

§552.262–275.

§552.108(a)(1).

§552.108(a)(4).

§552.1085(d)(1-8); be sure to see this section

for an exhaustive list.

§522.301(a)–(b).

§522.301(d)(1).

§522.301(d)(2).

§522.301(e).

§522.301(e-1).

Id.

§522.302.

§522.351-353.

Continued from page 35