Trial Advocacy Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Additonal Notice for Suppression Hearing

No Additional Notice Required for Suppression Hearing on Trial Date

By | Trial Advocacy

Texas Court of Criminal Appeals Determines That There Needs to be No Additional Notice Provided to the State When Holding a Suppression Hearing On the Day of a Trial

Additonal Notice for Suppression HearingThe Court of Criminal Appeals recently handed down a decision affirming a trial court judge’s decision to hold a suppression hearing on the day the trial was set, but before voir dire or any trial proceedings occurred. State v. Velasquez, 2018 Tex. Crim. App. LEXIS 52. After a prior motion for continuance by the State was granted, the defense submitted 16 pretrial motions, including a motion to suppress evidence. On the day of the trial, both sides announced ready, and the judge chose to hold the suppression hearing before jury selection. The State objected because they were not provided with proper notice of the hearing (and because their witnesses were not present to testify for the motions hearing before jury selection), but the objection was overruled and the judge ruled in favor of the defendant. The Fourth Court of Appeals reversed the trial judge’s decision, but that was overturned by the Court of Criminal Appeals, affirming the trial court ruling on the motion.

Texas Code of Criminal Procedure Article 28.01

The State based its appeal on Article 28.01 of the Texas Code of Criminal Procedure. This statute enables the judge to schedule pretrial hearings (Section 1), requires notice of these hearings to be provided to the defense (Section 2), and gives the required means of providing notice (Section 3). The State claimed that it was not provided adequate notice of the pretrial suppression hearing under this statute, and therefore, should have been given an opportunity to delay the hearing and trial.

Section 1

Article 28.01(1) allows for the court to set a pretrial hearing before it is set for a trial upon the merits. The Court of Criminal Appeals recognized that this creates two separate settings and that the court must provide adequate notice for any new and separate hearing. Included in this list of settings is a suppression hearing in Section 1(6). The court also acknowledges that many suppression hearings are done as a part of trial, and that parties should be capable of arguing for or against suppression at the time of the trial. In this case, the State was not prepared for the suppression hearing and refused to argue, forcing the court to rule in favor of the defendant.

Section 2

Article 28.01(2) requires the court to provide notice of at least 10 days to the defendant in order to allow the defendant enough time to respond and raise any additional preliminary matters. The State argues that it is entitled to notice, however, the Court points out that the statute only provides for notice given to the defendant. The Court decided that the State has no right to additional notice for a pretrial motion that will be handled on the day of the trial, so long as notice of the trial day setting was given to the State.

Section 3

Article 28.01(3) establishes the acceptable methods for providing notice to the defendant. Notice can be given through an announcement in open court in front of the defendant and his/her attorney, personal service to defendant, or by mail.

Court of Criminal Appeals’ Conclusion

Ultimately, the CCA held that it was appropriate for the trial court to hold a suppression hearing on the same day as trial, despite not giving additional notice to the State. The notice of the trial setting was sufficient to make the State aware of the possibility of a suppression hearing, and the State should have been ready for that hearing. The court sees a distinction between a pretrial setting and handling a matter just before the trial begins. Because suppression hearings are often held in conjunction with trials, this action was proper. Article 28.01 does not apply in this instance because there was no new, separate setting, and the party complaining about notice was the State. The Court understands that there could be improvements to the notice requirements, but as a member of the judicial branch, they are not empowered to make those changes.

Passout Blackout Alcohol Memory Sexual Assault Attorney

Passout vs. Blackout: How Alcohol Can Affect Memory (Voice for Defense Article)

By | Sex Crimes

Alcohol and Memory: An Interview with Texas Forensic Psychologist, Dr. Kelly Goodness, Ph.D

Passout Blackout Alcohol Memory Sexual AssaultAs you can probably imagine, many criminal cases involve events that occur when people are intoxicated. This can be especially true for cases involving allegations of sexual offenses. In these alcohol-fueled situations, the issue of memory can play a large part in the case. When we encounter intoxication and memory issues in sexual assault cases, we often employ the assistance of a forensic psychologist to serve as either an expert consultant or expert witness.  One of the best in her field is Dr. Kelly Goodness of Keller, Texas. Dr. Goodness is an expert in alcohol and the brain, including the difference between “pass out” and “blackout” evidence.  She is one of the most highly employed experts for alcohol-related sexual assault cases involving members of the U.S. Military. What follows is an interview that we conducted with Dr. Goodness regarding how alcohol can impact a person’s memory and how it can apply to the sexual assault context.

Q: Dr. Goodness, How is Alcohol Related to Memory?

A: Alcohol is a potent amnestic agent. Beginning with just one or two drinks, alcohol can produce detectable memory impairments. As the dose increases, so does the potential magnitude of the memory impairments, all the way up to the total inability to recall events during a drinking episode, otherwise known as a blackout.

Q: How does alcohol disrupt memory formation?

A: There are three general processes involved in long-term memory formation, all of which can be impacted by alcohol. First, information must be perceived by one or more of the senses (sight, hearing, taste, smell, and touch) to form a sensory memory which can last a few seconds. Second, if concentrated on for more than about eight seconds, sensory memory can be transferred to short-term memory to be retained. Short-term memory can last from seconds to minutes, depending on distractions and ability to rehearse or repeat the information. Third, once some kind of association or sufficient repetition has occurred; information can be consolidated, encoded and transferred from short-term memory into long-term memory which then makes the information available for later recall.

Alcohol, affects all stages of the memory process, but the primary effect is on the transfer of information from short-term to long-term memory storage. The drinker can recall long-term memories that were established before they became intoxicated, but their ability to transfer information into long-term storage can begin to degrade with just one or two drinks. As the dose of alcohol increases, the impairment increases and can culminate in blackouts. When blackouts occur the individual can participate in complex activities and even very emotionally charged events that they later cannot remember.

Q: You mentioned blackouts. What exactly is a blackout?

A: Blackouts are periods of amnesia, caused by excessive consumption of alcohol, during which a person actively engages in behaviors, but the brain’s ability to create memories for what transpires is impaired or non-existent. This leaves holes in a person’s memory that can range from spotty recall for events of the previous night (or drinking episode) to the utter absence of memory for large portions of an evening. The person is still able to carry on conversations, engage in activities and respond to others. They just will not recall some or all of what occurred.

Q: Are there different types of blackouts that a person can experience?

A: Yes. There are En Bloc Blackouts and Fragmentary Blackouts. Blackouts are classified based on the extent of amnesia. The amnesia can be total (“en bloc”) or partial (“fragmentary”).

En Bloc blackouts are classified by the inability to later recall any memories from the intoxication period, even when prompted or given cues.

  • No matter what happens, you can never recall it.
  • The information was never recorded so recall is not possible.
  • Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed.
  • It is difficult to determine the end of this type of blackout as sleep typically occurs before they end.

Think of a loved one you have known who has Alzheimer’s. They may tell you what they had for dinner and five minutes later tell you the exact same thing. They never recorded the event of initially informing you in the first place, so they tell you again. En Bloc blackouts are essentially the same phenomenon – just with a different cause.

Fragmentary blackouts are characterized by the inability to recall some events from an intoxicated period, but not all events.

  • The person may be unaware that memories are missing until reminded by others of the existence of these “gaps” in memory.
  • Cues can help them remember at least some of what happened because at least some of the information actually was recorded.
  • They may have more snapshot type recall and it may not be in sequential order.
  • Research indicates fragmentary blackouts are far more common than en bloc blackouts and likely involve alcohol-induced deficits in contextual memory.

Q: Is a blackout different from passing out?

A: Yes, they are different. Although many people refer to “passing out” as going to sleep following ingestion of alcohol, when I say “pass out” in my testimony or describing the research, I am referring to the more formal definition as used in the field of alcohol treatment, in which a pass out is a loss of consciousness due to excessive alcohol intake. By definition, blackout and pass out are mutually exclusive: a blackout is amnesia for the events of any part of a drinking episode, without loss of consciousness. A person in blackout continues to interact and perform complex activities, but has amnesia for these events. A person who is passed out is unconscious and is not having any behavioral experiences to record.

Q: Can blackout and pass out co-occur?

A: Yes. Passing out and blacking out can co-occur. Under the right conditions, a person who consumed alcohol to the point of passing out can be awakened from sleep, engage in activities and have a blackout for that time period.

Q: Can you tell if someone is having a blackout?

A: Determining whether someone is in a blackout state from their behavior alone is next-to impossible. To outside observers, the person may appear to be aware and functioning well enough. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or serious aggression, with little or no recall. They can drive a car, have a normal conversation, or engage in sexual relations.

Even loved ones are unlikely to know. We know that the wives of alcoholics who are known to be prone to blackouts may only know their husband was blacked out when he does not recall information the next day.

Research designed to bring about blackouts shows that those who are in the midst of an En Bloc blackout can easily recall things that have occurred within the last 2 minutes, yet they cannot recall anything that occurs during the episode prior to this period.

Q: From your knowledge of the research on this topic, what causes blackouts?

A: Blackouts are caused by the selective effects of alcohol on specific brain systems and involve a breakdown in the production and utilization of proteins and neurotransmitters in the brain. Blackouts can occur from rapid consumption of alcohol, such as guzzling, chugging, or shots and are more likely with consumption of hard alcohol or the combination of hard alcohol and beer, versus beer alone.

Q: Is there a typical Blood-Alcohol Concentration (BAC) at which a blackout is likely to occur?

A: Blackout BAC’s are individual dependent, but we know the blood-alcohol level is typically very high (above 0.25) when a blackout occurs. Some recent studies indicate .28 to .30 as the median BAC at which blackout is likely to occur. Still, a person can experience a fragmentary blackout with a BAC as low as .08 and an en bloc blackout with a BAC of.14 and above. These can only be used as estimates.

Q: Is intoxication level synonymous with blackouts?

A: No. Intoxication depends not only on the blood alcohol level, but on the rate of increase and tolerance of the individual. One may have a blackout without appearing grossly impaired. One may be drunk with poor judgment and control but not blackout. This is why even eye-witnesses may be (and usually are) unaware that a person is having a blackout.

Q: Are there any known risk factors for blackouts?

A: Yes. The following are risk factors typically associated with alcohol blackouts:

  • Drinking on an empty stomach as there is less food to absorb alcohol
  • History of serious head injury
  • Heavy drinker – but to be sure – a blackout can happen with a single drinking episode and naïve drinkers are not immune
  • History of prior alcohol blackouts – past history of blackouts shows the person is vulnerable ad also can produce damage that predisposes the person to future blackouts
  • Genetic predisposition
  • Alcohol in combination with certain common drugs
  • Female

Q: Why are females more vulnerable to memory impairment when drinking?

A: Several reasons.

  • Females typically weigh less.
  • They also have less water in their bodies, which means that they cannot dilute the alcohol as well, which can result in a higher alcohol levels in the brain.
  • Females are more likely to skip meals to save calories when they drink which means there is less food in the stomach to help absorb alcohol.
  • Females are more likely to drink beverages that are higher in alcohol concentration such as wine and mixed drinks rather than beer.
  • Females have less of an enzyme in the gut that breaks down alcohol before it gets into the body. In fact, studies have shown that it takes much less alcohol for women to experience blackouts than for men.

Q: What does research indicate is the prevalence rate of blackouts?

A: Research shows that 50% of college-age drinkers experience blackouts. Further, one in four college students who drink will experience a blackout in a given year. Although blackouts commonly occur with alcoholics, blackouts also occur in 25% of social drinkers.

Q: How can we know if a blackout is real or feigned?

A: It is hard to know. However, we can look at the known risk factors I previously discussed to determine whether the person was at a legitimate risk of experiencing a blackout.

Q: How does a drinker usually know if they passed out or experienced a blackout?

A: The short answer is they often do not know – and they especially do not know for sure given holes in their memory. Passout or blackout experiences are deduced from the circumstances in which the drinker finds themselves once they rouse, or from the information they are provided by others, or a combination of both. Loosing time through passout or a blackout can be very disturbing to an individual.

Once they wake, begin to sober, or are confronted by information from their surroundings or facts alleged by others; the drinker does what we all do all the time – they try to make sense of their situation by filling in the blanks with what seems logical to them. Their efforts may lead them to inaccurate assumptions and conclusions. This can be particularly true when the drinker has personal (i.e., religious, moral, employment) reasons for being distressed by behaviors such as those involving sexual activity.

Q: Can you explain how you would distinguish between a blackout and a pass out?

A: The fact patterns must be considered. If a person is so intoxicated that they are rendered unconscious, it should take significant time to return to normal cognitive and motor functioning. On the other hand, if a drinker was able to get up, communicate generally coherently, engage in physical movement, but later could not recall doing so, a blackout is much more likely.

Q: In a sexual assault allegation, why is it significant that the complainant might have been in a blackout rather than passed out?

A: Many who have experienced a blackout presume they physically and mentally could not have initiated or participated in sexual activity since they have no memory of doing so and may conceptualize themselves as someone who would never engage in sex in that situation or perhaps even with that person. Moreover, the notion they may have engaged in sex may bring them great cognitive dissonance and angst. As such, they may jump to the conclusion that they were passed out which by definition (unconscious) would mean they could not have participated. In reality, those who are in a blackout can, and do, engage in very complex behaviors including initiating and participating in sexual activity they simply will not recall because the memory traces were not encoded. To be sure, a person in a blackout can continue to perform any number of complex behaviors including driving, making purchases, arguing, criminal activity, and importantly – initiating and engaging in sexual activity – making it sometimes vital for fact finders to understand the psychological science related to blackouts.

Q: Thank you for your time, Dr. Goodness. If someone wanted to retain you to review a sexual assault case, how would they go about doing that?

A: They can either email me at kelly.goodness@drgoodness.com or contact my office at (817) 379-4663 and we can go from there.

As you can see, alcohol can have a significant impact not only in the decisions that a person makes, but also in the way they remember those decisions. In the sexual assault context, this is particularly important because a complaining witness may engage in (and perhaps even initiate) sexual behavior and not remember what he or she did. Without a memory of the night’s events, the complaining witness might mistakenly believe that they were “passed out” when the sexual behavior occurred and that they were taken advantage of by an opportunistic assailant, when in all reality, they were an active and willing participant. Based on their words and actions, others around them, including their sexual partner, would have no idea that the person was experiencing an en bloc or fragmentary blackout.

Thank you to Dr. Kelly Goodness for her time an expertise in preparing this article. Dr. Goodness’s contact information is provided below:

Kelly R. Goodness, Ph.D
Clinical and Forensic Psychology
121 Olive Street
Keller, Texas 76248
Office: (817) 379-4663


Brandon Barnett is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. He earned his J.D. from Texas Tech University School of Law and his LL.M. from George Washington University Law School. He is also a military judge in the Marine Corps Reserve and an adjunct professor at Texas A&M University Law School. He can be reached at barnett@bhwlawfirm.com.

Kelly Goodness, Ph.D. began her career as a clinical psychologist at the maximum security forensic hospital in Vernon, Texas. She entered private practice after learning lessons that could never be taught in a book and achieving recognition for her ability to identify and treat the factors that led individuals to be labeled the most dangerous and violent psychiatric patients in Texas. Dr. Goodness developed a thriving practice as a criminal litigation consultant and expert witness who feels privileged to offer her expertise in jury selection, case theory, expert testimony, and case presentation to the parties in state, federal and military cases worldwide with a special focus on homicide and sexual assault.

Hernandez Racial Slur Error 2016

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

By | Jury Trial, Trial Advocacy

Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

  1. Make a timely and specific objection;
  2. Request and instruction to disregard if the objection is sustained; and
  3. Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial.  Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Husband Wife Privilege Texas Rule 504

Can One Spouse be Forced to Testify Against the Other?

By | Criminal Defense, Jury Trial

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Husband Wife Privilege Texas Rule 504Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two “Husband-Wife” privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse’s marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse’s testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

  • First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
  • Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

  • First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
  • Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

Facebook Evidence in a Criminal Case

Facebook Likes and Twitter Tweets as Evidence in a Criminal Case

By | Criminal Defense

Facebook Evidence in a Criminal CaseIn the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

  • A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
  • A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
  • A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.

Military Defendants in Texas Military Veteran Attorney

3 Things To Avoid When Representing a Military Defendant

By | Veterans

Criminal Defense Attorneys Defending a Military Defendant Must Be Careful Not to Make These Mistakes

Military Defendants in Texas Military Veteran AttorneyTexas has its fair share of military bases and military servicemembers. Sometimes those servicemembers get into trouble, be it for DWI, Domestic Violence, or other criminal offenses. The military defendant, who usually has no criminal history, is not savvy with the Texas criminal justice system and must rely solely on the criminal defense attorney he selects to represent them. Below are some of the mistakes that I’ve seen when a non-military criminal defense attorney represents a military defendant. These are my opinions and should not be attributable to the United States Marine Corps or any government agency.

Mistake #1 – Allowing Your Client to Wear His Uniform to Court

You should not ask or allow your military criminal client to wear his service uniform to court. I understand that you may think his uniform will win him favor with the judge or the prosecutor, but it doesn’t. Anecdotally, I’ve spoken with several judges and prosecutors on this issue and it never inures to your client’s benefit. Whether you believe it or not, the general public (including judge and prosecutors) holds our military to a higher standard than the average defendant. Rightly or wrongly, they expect more from them and don’t like to see them as a criminal defendant. By allowing your client to wear his uniform, you skyline him and lower our Armed Forces in public esteem in the process. Unless it is an absolute emergency and his uniform is the only thing keeping your client from appearing in court naked, please ask him to wear the same thing your other clients wear to court. A court setting for a criminal case is the last place your client wants to be noticed in his dress uniform.

Mistake #2 – Not Considering the Military Consequences of a Disposition

When representing military servicemember, you need to ask and learn about the military consequences of the criminal case. Some criminal case dispositions trigger mandatory reporting to the member’s chain of command, which could (and often does) result in negative consequences in the military. Other types of cases (e.g. Domestic Violence) can result in your client losing the right to possess a firearm, which makes them non-deployable and virtually useless to their command. If your client does not know what his obligations are to his Service, seek out another attorney with military experience and ask them. DO NOT CALL YOUR CLIENT’S COMMAND OR THE BASE LEGAL COUNSEL. There is no privilege with base personnel and they will often be required to report your call to your client’s commander.

Mistake #3 – Not Requesting Your Client’s Military Record (OMPF)

Every servicemember has an OMPF or Official Military Personnel File. The OMPF will tell you everything you need to know about your client’s service. It will show you awards, deployments, performance ratings, disciplinary actions, and more. If you plan on using your client’s service as a positive mark in his favor, you should do your research to make sure that his service has indeed been positive. Your client may have below average ratings, several minor disciplinary infractions, and a Letters of Reprimand in his file. Or he may have combat awards, Letter of Appreciation, and early promotion recommendations. A savvy prosecutor will know all of this. The military shares information with the DA when requested. So before you drape yourself and your client in the flag, you should probably learn a little more about how “honorable” his service has been.

Military Veteran Representing Military Defendants in Texas State Courts

Brandon Barnett is a criminal defense attorney in Fort Worth, Texas with Barnett Howard & Williams PLLC. He is a veteran of the US Marine Corps and Operation Iraqi Freedom. He currently serves a reserve Military Judge for special and general courts-martial. Mr. Barnett teaches Military Justice at Texas A&M University School of Law in Fort Worth. For a free consultation of your Texas criminal case or to consult with Mr. Barnett about the potential military consequences of a criminal disposition, contact him at (817) 993-9249.

Federal Prosecutor Tips

5 Things I Wish Defense Attorneys Knew in Federal Criminal Cases

By | Criminal Defense

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas.  The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

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Read up on the U.S. Attorneys’ Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA’s mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

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Get out ahead of the government’s case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it’s an opportunity for you to shape the case before it even gets started. Don’t be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and “pretrial diversion” (Section 9-22.000) in lieu of indictment.

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Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn’t rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and “acceptance of responsibility.” See section 3E1.1.  Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

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“The squeaky wheel gets the grease”/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client’s case and hearing from you, it’s more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I’ll start preparing to do so.

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The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don’t have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

Glen Hines Former Federal ProsecutorGlen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues.  See his past article at Task & Purpose.

Vincent Bugliosi

Vincent Bugliosi’s Advice on Cross-Examination and Asking “Why”

By | Trial Advocacy

Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

Vincent BugliosiIn 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, ‘Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here’s what he had to say on the subject:

Even if I do not ask “why,” the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the “why” question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the “why” question and, as in some other situations, “save for final argument” the implications of the witness’ testimony, by that late point in the trial the witness’ reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The “why” question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn’t first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can’t go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the “why” question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the “why” question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

Voir Dire in Texas

A Proper Voir Dire Question

By | Trial Advocacy

Voir Dire in TexasWhen conducting voir dire of prospective jurors (the venire panel), Texas law says that a lawyer cannot ask a “commitment question.” The Texas Court of Criminal Appeals defines a “commitment question” as

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: What factors are important in assessing the sentence in a [name your offense] case.”

Presiding Judge Keller penned the lone dissent.  She deems the question an improper commitment question.