2019

VOLUME 1
STAY
UP TO DATE
WITH HCCLA EVENTS
FROM THE EDITOR
The Defender will tell stories and have ar!cles that will help
us as lawyers do the job we have been hired to do. The
training in law school generally does not train students to
ANY QUESTIONS?
Visit the calendar at www.hccla.org do criminal defense work. HCCLA is established for that
purpose. There are many seminars each year offered by
HCCLA. There is also a weekly appellate update class every
Wednesday that was created by Jim Skelton. A#er Jim le#,
Joe Varela and I took over to keep the class going. Neither
of us can ever fill Jim’s boots or pink tennis shoes, but we try
our best. Lawyer Varela does cases, and I arrange speakers
on current and new topics at the courthouse.

If you have ideas or need help on a legal issue, we also have

the Ethics Hotline that Jim and I created in 2011. HCCLA
also has a Strike Force to help lawyers who find themselves
in a jam with a court.

Chris!na Appelt, Execu!ve Director, has been a life support

for HCCLA since 2002. Chris!na always keeps us up to date
with the confusion in the court house. She is a blessing to
HCCLA. Chris!na can be reached at chris!na@hccla.org. I
can be reached at rpeltonlawyer1@aol.com. We welcome
your input and invite you to write an ar!cle to appear in a
quarterly issue of The Defender.

For those of you who keep score on who wins cases at the
courthouse, Jeff Ross keeps track and lists those victories on
his website, Show Me The Jus!ce.

HCCLA looks forward to having a posi!ve rela!onship with

the new judges. We are happy that many have been HCCLA
members and can relate to the problems facing criminal
defense prac!!oners.

Robert Pelton is a Criminal Defense Lawyer with

offices in Houston and Abilene, Texas. Mr. Pelton
has been named “Top Lawyer for the People” and
one of Marvin Zindler’s “Marvin’s Angels” by
H-Texas Magazine (2007). He was the personal
lawyer for Marvin Zindler for 31 years. He was
also rated by Super Lawyers (2014-18). Mr.
Pelton is a Past President of HCCLA (1985-86),
Founder and Chairman of HCCLA and TCDLA
Ethics Commi"ees (since 2011), a recipient of the Jim
Bowmer Award for Professionalism from the Texas Bar
College (2012); HCCLA Richard “Racehorse” Haynes Life#me Achievement
Award (2016); TCDLA President’s Awards (2011-18); and a United States
Congress Proclama#on from Congressman Ted Poe for his Zeal and Tenacious
Defense of his Clients (2016). In the 1980s, Robert Pelton and Allen Isbell
created Docket Call, which later became The Defender Magazine.
 WHAT’S INSIDE 2019, VOLUME 1

FROM THE EDITOR

R
2
4 O
OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS
PA

A WORD FROM YOUR PRESIDENT

NT
BY DOUG MURPHY
HY 5
7
COURTHOUSE CHAOS
C
H
HCCLA CAN HELP
BY CHRISTINA APPELT
B

ER
CONGRATS DAVID ADLER
FED FOCUS
US 9
HCCLA NEWS ROUND UP
H
10 W
WELCOME NEW MEMBERS
JOIN US 10TH ANNUAL DECLARATION READING
J
SAVE
S THE DATE 48TH ANNUAL HCCLA BANQUET

HOLIDAY PARTY
Y
PHOTOS BY BOB ROSENBERGG
& RUSSELL M. WEBB
B
12
16 JUST DO THE RIGHT THING
JU
BY ROBB FICKMAN

THE HISTORY OF PAROLE

E
BY ROBYN HARLIN
& SHARON BASS
N
S
18
BEST DEFENSES: PART I
B
20 B JOSEPH A. CONNORS III
BY
& MICHAEL A MCENRUE

PROTECTING THE EVIDENCEE

IN SEXUAL ASSAULT CASES
S
BY RACHEL D. FISCHER, RN
N 26
N
NEWS FROM THE DISTRICT
29 CLERK'S OFFICE
C
BY JUDITH SNIVELY
B

PRAIRIE DOG LAWYER OF TEXAS

AS
BY CHUCK LANEHART
RT 31
34 2019 JUDICIAL SUGGESTIONS
20
BY ROBB FICKMAN
 4 C. ANTHONY FRILOUX
C
STUART KINARD
S
THE DEFENDER / 2019, VOLUME 1

the defender GEORGE LUQUETTE

G
MARVIN O. TEAGUE
M
PUBLISHER
DICK DEGUERIN
D
HCCLA
W.B. HOUSE, JR.
W
EDITOR

past presidents
ROBERT PELTON DAVID R. BIRES
D
ADS & DISTRIBUTION WOODY DENSEN
W
ROBERT PELTON
CHRISTINA APPELT
1971-2018 WILL GRAY
W
EDWARD A. MALLETT
E
DESIGN & LAYOUT
BROCHURE BUILDERS
CAROLYN GARCIA
C
BRANDI DELOACH JJACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM
CLYDE WILLIAMS
C
ROBERT PELTON
R
CANDELARIO ELIZONDO
C
ALLEN C. ISBELL
A
DAVID MITCHAM
D
JJIM E. LAVINE
RICK BRASS
R
2018-2019 MARY E. CONN
M

Hccla officers & board KENT A. SCHAFFER

K
DAN COGDELL
D
JJIM SKELTON
GEORGE J. PARNHAM
G
PRESIDENT BOARD OF DIRECTORS
DOUG MURPHY CORDT AKERS GARLAND D. MCINNIS
G
JIMMY ARDOIN ROBERT A. MOEN
R
PRESIDENT ELECT STACI BIGGAR LLOYD OLIVER
L
NEAL DAVIS LORI BOTELLO DANNY EASTERLING
D
KATE FERRELL WAYNE HILL
W
VICE-PRESIDENT JUSTIN C. HARRIS RICHARD FRANKOFF
R
MARK R. THIESSEN GEMAYEL HAYNES W. TROY MCKINNEY
W
JORDAN LEWIS
CYNTHIA HENLEY
C
SECRETARY W. TROY MCKINNEY
STANLEY G. SCHNEIDER
S
DAVID RYAN RAND MINTZER
WENDELL A. ODOM, JR.
W
PAUL M. MORGAN
TREASURER TODD OVERSTREET ROBERT J. FICKMAN
R
STEVEN H. HALPERT DAMON PARRISH II PATRICK F. MCCANN
P
JED SILVERMAN MARK BENNETT
M
PAST PRESIDENT J. JULIO VELA JJOANNE MUSICK
TUCKER GRAVES JOE VINAS NICOLE DEBORDE
N
SARAH V. WOOD EARL D. MUSICK
E
CHRISTOPHER L. TRITICO
C
T.B. TODD DUPONT, II
T
CARMEN M. ROE
C
JJOANNE MUSICK
TYLER FLOOD
T
 5

2019, VOLUME 1 / THE DEFENDER

a word from your president
Doug Murphy
The dawn of a new era is upon us. The election of 28To expedite the relay of information of these massive
new criminal court judges to our 38 criminal courts changes to the criminal defense bar, HCCLA created
has brought new changes to longstanding ways of an “Ambassador” program assigning one HCCLA
doing things. These changes remind me of Thomas member to each criminal court to report back any
Paine’s pamphlet, Common Sense, advocating observations and information received. HCCLA is
independence from Great Britain that sparked the not requesting judges or prosecutors to participate
American Revolution by writing, “A long habit of in our program. The “Ambassador” program is
not thinking a thing wrong, gives it a superficial simple: An Ambassador will report observations
appearance of being right, and raises at first a and information received, if any, from the assigned
formidable outcry in defense of custom. But the court back to the HCCLA board and members so that
tumult soon subsides. Time makes more converts criminal defense practitioners are prepared to render
than reason.” I have witnessed more changes in the effective assistance of counsel relative to changes
month of January than I witnessed over the past occurring in the Harris County Criminal Courts.
20 years. Ambassadors can also relay pertinent information
from HCCLA to the Court and DA’s office if the
As criminal defense lawyers, we must remain
need arises, whether the judges and DA’s office are
vigilant in our obligation to protect fundamental
receptive or not. Nothing more, nothing less.
constitutional principles and ensure due process in
every court while judges gain their footing and we The HCCLA Ambassador role is no different than
sort through the new norm. It is important that we a chief prosecutor being assigned to court by a
assist in solving issues or problems with civility, District Attorney’s office, or a MADD liaison being
kindness and patience. American Patriot Thomas assigned to a particular court to observe court
Paine also noted that, “Those who expect to reap proceedings in an open public forum.
the blessings of freedom, must, like men, undergo
By accepting the appointment, a person appointed
the fatigues of supporting it.” All men and women
as an HCCLA Ambassador role agrees, and is
of HCCLA must lend their support.
 6
COURT JUDGE NAME HCCLA AMBASSADOR
THE DEFENDER / 2019, VOLUME 1

required, to abide by these mandatory guidelines:

» An HCCLA Ambassador is not permitted to 1 ALEX SALGADO VIK VIJ
have any ex parte communication with a court 2 RONNISHA BOWMAN TIFFANY HILL
about any particular case. 3 ERICA HUGHES KIMBERLY MCTORRY
» An HCCLA Ambassador is not permitted to 4 SHANNON BALDWIN STEPHANIE MORALES
post on social media, any website, or any 5 DAVID FLEISCHER TROY MCKINNEY
written material that they are an HCCLA
6 KELLEY ANDREWS STACI BIGGER
Ambassador assigned to a court. Doing so
7 ANDREW WRIGHT MARCOS ADROGUÉ
wrongfully implies that you are in a special
position to influence the judge. Doing so 8 FRANKLIN BYNUM SARAH WOOD
will also result in immediate revocation of 9 TORIA FINCH KIMBERLY MCTORRY
HCCLA Ambassador appointment. 10 LEE WILSON GUS SAPER
» An HCCLA Ambassador is not permitted to 11 SEDRICK WALKER DANNY WERLINGER
tell prospective clients, current clients or 12 GENESIS DRAPER KIMBERLY MCTORRY
the public that they are an HCCLA
13 RAUL RODRIGUEZ KATE FERRELL
Ambassador assigned to a court. Doing so
14 DAVID SINGER TROY MCKINNEY
wrongfully implies that you are in a special
position to influence the judge. Doing so will 15 TONYA JONES DAMON PARRISH
also result in immediate revocation of 16 DARRELL JORDAN ALAN MACIAS
HCCLA Ambassador appointment. 174 HAZEL JONES NICOLE DEBORDE
Failure of an HCCLA Ambassador to comply 176 NIKITA HARMON KIMBERLY MCTORRY
with these guidelines will result in immediate 177 ROBERT JOHNSON MARK THIESSEN
revocation of the appointment. This HCCLA
178 KELLI JOHNSON ROBERT LOPER
Ambassador program is an opportunity for the
criminal defense bar to be on equal footing with 179 RANDY ROLL MARK BENNETT
the district attorney’s office when it comes to 180 DASEAN JONES PAUL MORGAN
receiving information on changes occurring in 182 DANNY LACAYO TUCKER GRAVES
each of the 38 Harris County Criminal Courts. 183 CHUCK SILVERMAN JON STEPHENSON
CONTINUED : A WORD FROM YOUR PRESIDENT

We asked for people to volunteer, and we received 184 ABIGAIL ANASTASIO JED SILVERMAN
an overwhelming response. Due to the large 185 JASON LUONG CHRIS MCKINNEY
response, we were not able to accommodate
208 GREG GLASS ROBERT PELTON
everyone’s request in making the Ambassador
appointments. If you were not selected, please 209 BRIAN WARREN BRENT MAYR
do not be discouraged as there are plenty of other 228 FRANK AGUILAR JAMES STAFFORD
opportunities within HCCLA to be involved. 230 CHRIS MORTON JORDAN LEWIS

HCCLA is pleased to announce the following 232 JOSH HILL JOE VINAS
lawyers appointed as Ambassadors to the courts. 248 HILLARY UNGER CYNTHIA HENLEY
262 LORI CHAMBERS GRAY STACI BIGGAR
263 AMY MARTIN ROBERT LOPER
337 HERB RITCHIE CARL PRUETT
338 RAMONA FRANKLIN DORIAN COTLAR
339 MARIA T. JACKSON MARY CONN
351 GEORGE POWELL DAVID RYAN
 Courthouse Chaos
HCCLA CAN HELP
By Christina Appelt, HCCLA Executive Director
The State of Texas v. Your Client. Your victories are sweet,
and your losses cut deep. The criminal justice system can
be a lonely, daunting place for the solo defense lawyer.
You don’t have the same resources your DA counterparts
have—an entire police department, numerous agencies,
crime labs and forensic experts.
The good news is—you are not alone. HCCLA provides
ample support, resources, and a place to share ideas,
knowledge and experiences. Members assist, encourage, and
pick each other up. Members also generously share advice,
trial assistance, strategies, motions, court updates, even
rodeo tickets. So when Robert Pelton asked me to write
an article, my first thought was how can I help? I don’t
practice law. I can’t offer a trial tip or ease your burdens in
any meaningful way. Still, this thought invades my dreams
at night. You have such a tough job. Surely I can do more
than decorate pinecones for your holiday parties.
When Harvey hit, I stayed inside waiting for the water
to recede and normalcy to return, wondering how can I
help? I saw the rain and courthouse updates pouring in
all directions. Courts closed. Jail visits cancelled. ALR
hearings postponed. Pretrial Services moved.
Docket times and locations changed by the minute.
Coordinators did the best they could. Some judges gave
updates on social media, or informed their favorite
lawyers, who then (hopefully) shared the news on the
listserv. Over the next few weeks, new court information
continued to trickle in, but scattered in so many places it
became harder and harder to find. No justice system in
a county of this size can effectively rely upon unofficial
reports and rumors as legitimate sources of information.
7
2019, VOLUME 1 / THE DEFENDER
The county needed a Courthouse Chaos hotline—but
there was none. I thought, how can I help? Moral support
is nice, but that doesn’t get you to court on time. I began
scouring the internet and making calls to gather all court-
related information and consolidate it into one place—
HCCLA.org/courts—including current Bond/Jail
Docket Schedules. I updated this webpage 35 times in the
first 3 days, dozens of times each week thereafter. This
page is still routinely updated as a courtesy to both our
members and the general public.
I mention all this because HCCLA offers many hidden
membership benefits. We evolve to fit your needs, however
fast those may change.
A few more resources you may not be using:
CJC updates, news, blogs, press releases, and more
HCCLA.org
Upcoming seminars and events
HCCLA.org/calendar
Membership directory with searchable member profiles
HCCLA.org/member-directory
Private Members-Only library contains a treasure trove
of useful materials: documents, motions, transcripts,
organization charts, and other helpful resources
HCCLA.org/members-only
Have an ethical dilemma? obligation to report? conflict of
interest? Call the HCCLA Ethics Hotline (713) 518-1738
Have a problem with a judge?
Ask for Strike Force assistance on the listserv. A team of
veteran lawyers can help.
 8
THE DEFENDER / 2019, VOLUME 1

We strive to provide our members with all the tools you need to Chris!na Appelt has
navigate the murky waters of Harris County, so you can focus served as HCCLA
on zealously defending your clients. I encourage you to visit our Execu!ve Director
since 2002. Prior
website, subscribe to the listserv, follow us on Facebook and Twitter, to that, she worked
or call the Ethics Hotline. You can also email me any questions or in accoun!ng and
send updates to christina@hccla.org. poli!cal consul!ng.
Chris!na graduated
Get what you need, when you need it. Defense lawyers have with Academic Dis!nc!on
a hard enough job. Don’t go it alone. Curb the chaos. In good from University of St. Thomas
in Houston, Texas with a B.A. in Poli!cal Science:
times or bad, HCCLA can help. Public Administra!on. Her hobbies include
managing the listserv, upda!ng the website,
ATTENTION JUDGES a"ending board mee!ngs, proofreading The
Defender, or planning seminars, banquets and
We ask that you immediately notify HCCLA directly other events—though she prefers to lounge in
of any official policy or schedule changes and/or facility the sun with a good book. Born in New Orleans,
closings. While it may be tempting to post on Facebook Louisiana, she also enjoys Cajun cuisine and good
and hope the word spreads, recent events have taught us music. Laissez les bons temps rouler!
that is not the most efficient practice.

PLEASE SEND COURT UPDATES

TO ADMIN@HCCLA.ORG
This will help ensure that accurate information is
disseminated to the lawyers who practice before you
in a fair and timely manner. We thank you for your
cooperation and understanding.
CONTINUED : COURTHOUSE CHAOS

In November 2018, the local
federal judiciary honored David
Adler with the first Judge
Thomas M. Reavley
Award for Outstanding
Public Service. For the
past decade, David has
served as Representative of
the Criminal Justice Act
Panel – a group of hundreds
of lawyers in and around
Houston who represent indigent
federal defendants.
David Adler is a former CIA
officer, longtime HCCLA
member, past board member
and recipient of HCCLA’s
Lawyer of the Year award
(2004). David has represented
clients in nearly 800 federal
cases – ranging from Medicare
Fraud to more serious offenses
by members of ISIS, the
Taliban, Aryan Brotherhood
and MS-13.
9
2019, VOLUME 1 / THE DEFENDER
David Adler understands to his
core the need for adequate representation
for all defendants, regardless of what they are
accused of doing, what they’ve done in the past,
or where they come from.
̶ CHIEF U.S. DISTRICT JUDGE LEE H. ROSENTHAL
David has “skill and intelligence saturated with courage”
̶ U.S. DISTRICT JUDGE LYNN N. HUGHES
He is “a gentleman and a scholar”
̶ U.S. DISTRICT JUDGE VANESSA D. GILMORE
He’s not going to let a slip-up go by.
̶ QUINCEY OLLISON, ASSISTANT U.S. ATTORNEY
He is always there to take defense attorneys’ calls to help with cases
they are working on
̶ NICOLE DEBORDE, CJA PANEL SELECTION COMMITTEE
I’ve never seen David back away from taking even the person accused of the
most heinous crime on the face of the earth. He’s unintimidated.
̶ ROBERT FICKMAN, FORMER CJA PANEL REPRESENTATIVE
••••••••••••••••••
Source: Banks, Gabrielle. “Houston lawyer and ex-CIA officer champions indigent defense in
federal court.” Houston Chronicle, Dec. 26, 2018.
10
THE DEFENDER / 2019, VOLUME 1

WELCOME
NEW
HCCLA JOIN US
MEMBERS for the

10 TH

ANNUAL
new members
Taniya Al-Amin Uche Mgbaraho
Ana Paula Funes-Baker Kenneth Vern Mitchell

Declaration of
Jeffrey Hohl George Napier
Paul Hubbell Letitia Quinones
Syed Imam Asha Reddi

Independence
Jay Karahan Keyla Martinez Robertson
Cameron Keener Bash Sharma
James Magown C. Stephen Stewart
Larry P. McDougal Peter M. Viles

Reading
Kimberly McTorry Natalie Ware
Marc A. Metze Afshin Zand

new paralegal members July 3, 2019 @ 12pm

On the Courthouse Steps
Criminal Justice Center
Crystal Rose Barela
Thiessen Law Firm 1201 Franklin Street
Crystal Reyna Houston 77002
Biggar Law Firm

new student members

Randy Yates
 11

2019, VOLUME 1 / THE DEFENDER

save RICHARD "RACEHORSE" HAYNES
LIFETIME ACHIEVEMENT
Mike DeGeurin

the
Te r r y G a i s e r
Randy Schaffer

LAWYER OF THE YEAR

Gerald Bourque

TORCH OF LIBERTY
Robb Fickman

date
SHARON LEVINE UNSUNG HERO
Steven Rocket Rosen

MENTOR OF THE YEAR

Danny Easterling

MEMBER OF THE YEAR

Patrick McCann
12
THE DEFENDER / 2019, VOLUME 1

Holiday Party
PHOTOS BY BOB ROSENBERG & RUSSELL M. WEBB
2019, VOLUME 1 / THE DEFENDER
13
14
THE DEFENDER / 2019, VOLUME 1

Special anks to our sponsors!

SPONSORS
Cordt Akers Danny Easterling Muniz-Monroy Law Firm
Alli and Katie - The Devlish Duo Antonio Espejo Smart Start
Staci Biggar David L. Garza Russell M. Webb
Lori Botello Tucker Graves Daniel Werlinger
J.C. Castillo The Justin C. Harris Law Firm Michael Wynne
Sean Darvishi The Imam Law Firm, PLLC Zimmermann, Lavine &
Paul Doyle & Associates Andrea & Rand Mintzer Zimmermann, PC
T.B. Todd Dupont II Schneider & McKinney, PC
CONTINUED : HCCLA BANQUET
 15

2019, VOLUME 1 / THE DEFENDER

P L AT I N U M HOSTS
Lewis, Moore & Quinones Adrogué Law Firm McLemore, Reddell, Ardoin & Story, PLLC
Terry Bryant, Accident & Injury Law The Montalvo Law Firm, PLLC
GOLD Law Office of Eddie Cortes Judge-Elect Raul Rodriguez, CCL#13
Tyler Flood Maverick Ray
Robb Fickman
Thiessen Law Firm
Law Offices of Bo Hopmann Scheiner Law Group, PC
SILVER Internet Lava James Stafford
Joe Garcia & Joseph Ruiz Andreea Ionescu J. Julio Vela, Esq.
Doug Murphy Judge Maria Jackson VideoLava.com
Denise Peterson Jordan Lewis Vik Vij
Scott Ramsey Mayr Schiffer, PLLC
Tritico Rainey, PLLC
& Carmen Roe Law Firm, PLLC
16
THE DEFENDER / 2019, VOLUME 1
JUST D O
THE
Upon receiving HCCLA’s Lifetime Achievement
Award in 2006, the late Honorable Andrew Jefferson
spoke about what it meant to be a good judge.
He said it was not that hard.
Judge Jefferson said,
“Just Do the Right Thing.”
The criminal justice system is conservative by nature
and resistant to change. For decades, the “good ole
boys” in charge of the Harris County criminal justice
system have taken pride in maintaining a system stuck
in the past. While there have been some innovations,
like Veterans Court, these innovations remain the
exception and not the rule.
Harris County has always been a hard ass “Law and
Order” county. For years we have lead the nation in the
imposition of the death penalty. We have earned the
shameful title “Death Penalty Capital of the World.”
One might wonder, are the good citizens of Harris
County more evil than the rest of humanity? Or, is
the Harris County criminal justice system maybe less
humane than most of the rest of the civilized world?
Unfortunately, in years past, some judges elected to
ignore Judge Jefferson’s admonition when it came to
granting Personal Recognizance (PR) bonds.
For years our county criminal court judges
systematically denied PR bonds. They openly and
unapologetically perpetuated a vile “Plea Mill”
system. Presumptively innocent indigent defendants,
denied PR bonds and stuck in jail, were effectively
cornered into pleading guilty. No doubt many
factually innocent indigent defendants plead guilty to
obtain their liberty. Poor people had their lives forever
BY ROBB FICKMAN
RIGHT
THING
stained with criminal records because a handful of
judges were too closed-minded to change.
Ultimately, the Harris County criminal courts were
sued in federal court. With the exception of Judge
Darrell Jordan, the county criminal court judges
refused to acknowledge the wrongfulness of their
systematic denial of PR bonds. They spent millions of
tax dollars paying high-priced civil lawyers to defend
their despicable system.
Predictably, U.S. District Court Judge Lee Rosenthal
“did the right thing” and found the Harris County
Criminal Court’s bail practices violated due process
and equal protection under the law.
Now, at long last, there is a light at the end of the tunnel.
The county criminal court judges who perpetuated the
systematic denial of PR bonds are gone. We have 15
new county criminal court judges and they support
long overdue bail reform.
Under the leadership of Judge Darrell Jordan, the
15 new judges have abandoned their predecessors’
federal appeal. Our new county criminal court judges
are united in their commitment to fairly granting
PR Bonds. They will help eliminate the “Plea Mill”
perpetuated by their mostly unrepentant predecessors.
(Notably, Judge Mike Fields sided with Judge Darrell
Jordan toward the end).
Our new county criminal court judges should
be praised for embracing the just utilization of
PR bonds.
For years The Harris County Criminal District Courts
annually granted PR bonds on only 1% of all cases.
The District Courts had to know that they too would
be sued in federal court.
 The granting of PR bonds on 17
misdemeanors has not been without

2019, VOLUME 1 / THE DEFENDER

its problems. Onerous conditions are
being placed on PR bonds.

Onerous bond conditions are clearly

not consistent with Judge Rosenthal’s
orders. One forced to comply with
onerous bond conditions will be
more likely to plead. Onerous bond
conditions, if allowed to stand, will
Now,that is exactly
what has happened.
create a new “Plea Mill”. We cannot
trade one plea mill for another.
If it was wrong for the county
courts to systematically deny PR
PR bonds must be granted without
bonds,it is wrong for the district courts onerous conditions.
to do the same. There is a predictability
to the outcome of this lawsuit, and it does not
favor the district courts.

No reasonable person would advocate PR bonds across

the board on all felonies. The nature of the charge is
certainly a relevant and important factor. With that in
mind, it seems wrong to systematically deny PR bonds to
those accused of non-violent State Jail felonies.

First offenders charged with possession of less than

a gram seem to be suitable candidates for PR bond
consideration. Why should presumptively innocent
people be made to wait in custody for lab results? Why
should they sit in jail when their most likely punishment
will be deferred adjudication?

Let us hope that the Harris County district court

judges learn from our new county criminal court judges.
Those accused of felonies, like those accused
of misdemeanors, should be granted PR bonds
when appropriate.
A protracted legal fight will serve no purpose. A fair
and practical settlement will serve the district courts,
the accused, the taxpayers, and most importantly, the
best ends of justice. Let’s hope the Harris District Court
Judges heed the sage advice of the late Judge Andrew
Jefferson and “Just Do the Right Thing”.
Robert Fickman has prac!ced criminal
defense in State and Federal Court for
35 years. He is AV-rated by Mar!ndale-
Hubbell, a Past President of HCCLA, past
Board Member of TCDLA, and a long!me
vocal cri!c of the criminal jus!ce system.
He received the HCCLA President’s Award
in 2018 for his many years figh!ng to
eliminate Harris County’s “Plea Mill” and
systema!c denial of PR Bonds.
18
THE DEFENDER / 2019, VOLUME 1

Parole is the discretionary subject to the approval of In 1930, the prior restriction
release of an inmate, by the Governor, for the parole was removed and only inmates
a Board of Pardons and of inmates. who had previously served
Paroles decision, to serve the time in prison were not eligible
remainder of a sentence in the Under this legislation, inmates for parole.
community under supervision. were eligible for parole after
having served the minimum
In 1905, the Texas Legislature amount of time fixed by statue In 1936, the Constitution
enacted the first parole law. for their crime. This law was amended to create a
This law gave authority provided for a parole agent constitutional three-member
to the Board of Prison or supervisor to keep the state Board of Pardons and
Commissioners and the informed about the conduct Paroles. This amendment
Board of Pardons Advisors, of those on parole; however, gave the Board authority to
with the approval of the no system existed for the recommend parole and
Governor, to make rules supervision. clemency to the Governor, and
and regulations under which the Governor was given the
certain inmates could be In 1929, the Legislature sole power to revoke paroles
paroled. Under this law, first created the Board of Pardons and conditional pardons. This
time inmates who had served and Paroles and gave them Act is said to be the birthplace
two years or one-fourth of the authority to recommend of parole in Texas.
their sentence were eligible inmates for parole to the
for parole for certain offenses. Governor as well as to advise Prior to 1937, there were no
on clemency matters. Parole parole officers. A supervisor
In 1911, legislation was passed still only applied to those who of parolees kept records of
that gave authority to the Board had never been convicted of a the parolees, and if they
of Prison Commissions alone crime that was punishable by violated a condition of parole
to make rules and regulations, a sentence to the penitentiary. the violation was reported
 19

2019, VOLUME 1 / THE DEFENDER

to the Governor who could issue a warrant
for arrest. If parole was revoked, the inmate
was required to serve the balance of his
maximum sentence calculated from the date
of the violation.
Time spent on parole counted as time served
on the sentence until parole was revoked. A
violator who committed a new offense while
on parole was required to serve the balance
of the original sentence before beginning to
serve the new sentence.
In 1937, the Governor formed voluntary
parole boards to supervise parolees. Prior to
this time, no actual supervision of parolees
was possible since only one supervisor of
parolees was provided by law. Voluntary
parole supervisors were appointed in 242 of
254 counties in Texas. The volunteer assisted
the parolee in finding a job and required the
parolee to submit a report.
The 50th Legislature in 1947 established
the general framework for how probation
(community supervision) and parole operate
today. Prior to 1947, those released from
prison on parole were actually granted
executive clemency, called conditional or
executive pardons.
Robyn Harlin has been prac!cing law since
1997. Born and raised in West Texas
and spending her career in the greater
Houston area, she exemplifies
the deeply held values of a true
Texan. She works with passion,
hard work and integrity to make
sure that her clients receive the best
outcome possible. Robyn has extensive
experience dealing with families in crisis
and takes a common sense approach to resolving their issues.
While a"ending South Texas College of Law, Robyn interned for
A"orney Robert Pelton and has con!nued that close associa!on
for the last 19 years. With experience ranging from uncontested
divorces to capital murder mi!ga!on, Robyn has spent her en!re
career helping real people resolve real problems.
Sharon Bass is a Paralegal working for
Robert Pelton, in Houston, Texas. She
received her Paralegal Cer!fica!on
from Career Ins!tute in 1982 and
also has a Psychology degree from
the University of Houston. Sharon
is very ac!ve in advoca!ng for
Criminal Jus!ce Reform and has
par!cipated in Parole Forums at the
Texas Department of Criminal Jus!ce,
Darrington, Ellis and Coffield Units. In her spare !me, she loves
being Nana to her four precious grandchildren.

The 50th Legislature did not grant any

additional funds for parole operations so the
supervision of those released on parole, or
conditional pardon, was done entirely by the
volunteer parole board.

Many changes have taken place since the

50th Legislature leading eventually to
the establishment of the current Board of
Pardons and Paroles. There are seven Board
Members and fourteen Commissioners in
seven regional offices that vote on the release
or denial of eligible inmates release to parole.

Sources: Texas Department of Criminal Justice,

Parole Division; Wikipedia
20
YOU HAVE BEEN SUED.
THE DEFENDER / 2019, VOLUME 1

You may employ an attorney. If you or your

attorney do not file a written answer with the
District Clerk who issued this citation by 10:00am
on the Monday next following the expiration
of 20 days after you were served this citation
and petition, a default judgment may be taken
against you.

Are there prompt and economical remedies

after service of citation in these scenarios?

ONE
In a collection case for incurred expenses,
defendants counterclaim against your law firm,
alleging your pleadings and courtroom arguments
constituted acts of slander, libel and intentional

BEST
infliction of emotional distress. You can move
for summary judgment, claiming that by your ex-
clients’ counterclaim they have pled themselves
out of court by triggering an insurmountable
bar to their own claims for recovery, since your
conduct was absolutely privileged and within the
judicial communication privilege.1

DEFENSES TWO
Your former client, who is still on community
supervision or probation, is now suing you for
malpractice, breach of contract and fiduciary

P A R T 1 duties, alleging you deprived ex-client of due

BY JOSEPH A. CONNORS III & MICHAEL A. McENRUE
process by failing to provide the assistance of
counsel guaranteed by the U.S. Const. Amends.
VI and XIV, since you did not make a reasonably
adequate investigation of the applicable facts
and law in that ex-client’s underlying criminal
prosecution, before you allowed that ex-client to
unknowingly, involuntarily and unintelligently
plead guilty to a crime of which he/she was
absolutely innocent and had factually relevant
legal defenses to criminal liability; but you failed
to advise ex-client regarding those defenses due
to your deficient performance and ex-client would
not have pled guilty but for your deficiencies.

THREE
You just left your chosen malpractice attorney’s office,
who agreed to be your defense counsel if you deposit
a $12,000 IOLTA retainer and contract to pay for all
reasonable expenses and legal services at the hourly
rate of $600 and to return that trust account’s balance to
$12,000, every time it reaches $5,000.
STEP 1 »»»»»
Consider timely filing your answer like Mr. Connors did.
The above Defendant
files this Original Answer to Plaintiff’s Fifth
Amended Original Petition, which was filed on
April 1, 2020, and for such answer shows:
1] G E N E R A L D E N I A L
Pursuant to Tex. Civ. P. Rule 92, the above DEFENDANT
invokes his rights to jury trial and generally denies each
and every, all and singular, the allegations contained in
Plaintiff’s fifth amended original petition, and demands
Plaintiff be required to prove to a jury his allegations by
a preponderance of evidence.
2] A F F I R M AT I V E D E F E N S E S
a. Each of Plaintiff’s causes of action has no basis in
law or fact.
b. Plaintiff’s claims involve “professional personal
services” exempted from liability under the Texas
Deceptive Trade Practices Act (DTPA).
c. Each of this convicted Plaintiff’s claims are barred
as a matter of law, since this Defendant is immune
from liability under the Peeler doctrine.2
d. The question of what actions this Plaintiff did leading
up to being convicted of offenses charged in the
indictment at the criminal district court level,
is an issue for the court to decide, not the jury.
On July 1, 2014, County’s 430th District Court
made the judicial determination that Plaintiff’s acts
did constitute crimes under the Penal and Health and
Safety Codes; and thus, Plaintiff’s claims are barred
by the doctrine of res judicata.
e. Plaintiff’s claims are time barred by applicable
statutes of limitations.3
f. Plaintiff’s petition alleges too few facts to demonstrate
a viable, legally cognizable right to relief or additional
facts that, if true, bar recovery.4
21
3] C O U N T E R C L A I M S & R E Q U E S T E D
A F F I R M AT I V E J U D I C I A L A C T I O N
2019, VOLUME 1 / THE DEFENDER
a. Acting as a counter-claimant, Defendant now
complains of Plaintiff
and his attorney of record, ,
and for causes of action shows by this counter
claim that:
(1) Plaintiff’s suit is groundless in fact and law
and was brought in bad faith or for the purpose of
harassment. Due to that suit, Defendant was
compelled to engage the services of the McAllen
attorney subscribed below and Houston attorney
Michael McEnrue (who is undersigned’s legal
partner only on this case) and to pay all reasonable
fees and necessary expenses incurred in defense
of Plaintiff’s claims, and in the event of an appeal
to a Court of Appeals, and in further event of a
petition for review at the Texas Supreme Court,
and in further event of a petition for writ of
certiorari at the U.S. Supreme Court.
(2) Defendant seeks sanctions against Plaintiff and
his record counsel.
(3) Defendant seeks a court order that Plaintiff and
his record counsel are each jointly and severally
liable to this Defendant and his attorneys of record
for and must pay them at least these below
reasonable amounts for each of this case’s below
types of necessary legal services, given
Defendant’s counsels’ combined 80+ years of law
experience and their involvement in numerous
appeals in the Courts of the State of Texas and
the United States of America:
‣ $7,500 to research facts and law and prepare the
above document.
‣ $15,000 to research and litigate a Rule 91a
dismissal motion.
‣ $30,000 to conduct pretrial discovery in this case.
‣ $25,000 to prepare and/or litigate motion(s) for
Summary judgment.
‣ $25,000 to prepare this case for trial.
‣ $40,000 to try this case at trial other than by
summary judgment.
‣ $85,000 at court of appeals to appeal judgment
for Plaintiff.
‣ $85,000 at court of appeals to defend judgment for
this Defendant.
‣ $50,000 to petition for review at the Texas
Supreme Court.
‣ $50,000 to respond to a petition for review at Texas
Supreme Court.
‣ $85,000 to file a merits brief at the Texas Supreme Court.
‣ $55,000 to file a petition for writ of certiorari at
U.S. Supreme Court.
‣ $90,000 to file a merits brief at the U.S. Supreme Court.
22
THE DEFENDER / 2019, VOLUME 1
4] J U RY T R I A L
Defendant requests a jury trial under Tex. Civ. P.
Rule 216.
Wherefore, Premises Considered, this DEFENDANT
seeks judgment of the court as follows:
(1) Plaintiff take nothing.
(2) Defendant recover judgment on the above
counterclaim against Plaintiff and his counsel
for all responsible and necessary damages,
expenses and attorneys’ fees due to this
Defendant’s attorneys.
(3) Defendant recover all costs and expenses
incurred herein and for such other and further
relief to which this Defendant may be entitled.
CERTIFICATE OF SERVICE
Undersigned certifies that on May 14, 2020, I served a
copy of this document by U.S. postal service first class
mail to and by email to:
Respectfully submitted by Defendant
& JURY DEMANDED by,
STEP 2 »»»»»
Consider pushing trial court for timely hearing and timely
signed dispositive order, after timely filing your motion like
Mr. McEnrue’s below.
CONTINUED : BEST DEFENSES
DEFENDANT’S MOTION FOR DISMISSAL
UNDER TEX. R. CIV. P. 91a
On the strength of Peeler v. Hughes and Luce, 909 S.W.2d
494 (Tex. 1995) and Wooley v. Schaffer, 447 S.W.3d 71
(Tex. App.—Houston [14th Dist.] 2014, pet. den’d), this
Defendant respectfully asks this Court to dismiss all
causes of action alleged against him in Plaintiff’s Fifth
Amended Original Petition, for lack of a basis in either
law or fact within the meaning of Tex. R. Civ. P. 91a. In
support, Defendant respectfully shows the Court below.
BACKGROUND FACTS
As the Court may judicially notice from Image No. in its
own file, Tex. R. Evid. 201, Plaintiff added this Defendant
to this lawsuit less than sixty days ago by service of
citation and a copy of Plaintiff’s fifth amended original
petition. Accordingly, this Defendant has timely filed this
motion to dismiss under Tex. R. Civ. P. 91a.3(a).
Plaintiff’s fifth amended petition reveals that he pled
guilty in County’s
430th District Court to felony offenses of possession of
marihuana (POM) and theft on July 14, 2014, received
two probated sentences of ten years’ confinement
conditioned upon service of a 180-day jail term. Plaintiff
was released from custody on January 10, 2015, and
then began serving the remainder of his ten-year term of
community supervision probation. (Pltff. Fifth Amend.
Pet’n ¶ 4.1) Nowhere in his pleading, does Plaintiff claim
that a court has invalidated either of his convictions;
rather he admits that each conviction still stands. (Pltff.
Fifth Amend. Pet’n ¶ 4.33)
If one reads Plaintiff’s current live pleading liberally, he has
alleged a list of claims against this Defendant all growing
out of the latter’s employment by the other defendants
to draft an application for a writ of habeas corpus under
Tex. Code Crim. P. Art. 11.072 to challenge Plaintiff’s
2014 theft and POM convictions. On the strength of this
Defendant’s association with the other attorneys sued,
Plaintiff has accused this Defendant of legal malpractice,
negligence, civil conspiracy, fraudulent representation,
negligent misrepresentation, and violation of the DTPA
as well as breach of contract and fiduciary duty with a
request for fee forfeiture. (Pltff. Fifth Amend. Pet’n. ¶
12.1 - 12.15) Beginning with Peeler v. Hughes and Luce,
909 S.W.2d 494 (Tex. 1995), however, Texas appellate
courts have consistently ruled that a felon cannot sue his
attorney for damages based on the latter’s representation
in the criminal law process while the conviction remains
valid. See generally Wooley v. Schaffer, 447 S.W.3d 71
(Tex. App.—Houston [l4th Dist.] 20l4, pet. den’d).

ARGUMENT
In relevant part Tex. R. Civ. P. 9la.l provides:
. . . a party may move to dismiss a cause of action on
the grounds that it has no basis in law or fact. A cause of
action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could
believe the facts pleaded.
LACK OF LEGAL BASIS
Since Rule 9la was enacted, the First Court of Appeals
has recognized that a cause of action has no basis in law
in at least two situations: (1) the petition alleges too few
facts to demonstrate a viable, legally cognizable right to
relief; and (2) the petition alleges additional facts that
bar recovery if true. Guillory v. Seaton, LLC, 470 S.W.3d
237, 240 (Tex. App.—Houston [lst Dist.] 2015, pet.
den’d). Because Plaintiff has pled that all defendants’
performance and omissions are related to existing felony
convictions, Plaintiff’s petition falls within the second
group of claims classified by the First Court of Appeals.
In this case, Plaintiff’s allegations, taken as true and
construed liberally, trigger a clear legal bar to recovery
created by the doctrine of Peeler v. Hughes and Luce,
909 S.W.2d 494 (Tex. 1995). Peeler ruled that the
conduct of a plaintiff convicted of a criminal offense and
challenging the performance of her defense attorney was
the sole cause in fact of her damages. Analytically, it was
the sole proximate or producing cause of her damages as
well because there only existed a single cause in fact. The
litigant, the court said, “may negate the sole proximate
cause bar to their claim for legal malpractice in connection
with that conviction only if they have been exonerated
through direct appeal, through post-conviction relief, or
otherwise.” Peeler, 909 S.W.2d at 497-98.
23
2019, VOLUME 1 / THE DEFENDER
The Texas Supreme Court applied the Peeler bar to
causes of action based on legal malpractice, breach of
contract, breach of warranty and DTPA violations. Id.
at 496. Lower appellate courts have applied it further.
In Stallworth v. Ayers, 510 S.W.3d 187, 191-94 (Tex.
App.—Houston [lst Dist.] 2016, no pet.), the First
Court of Appeals ruled the Peeler holding prevented
the convicted person from litigating claims alleging
negligence, gross negligence, breach of contract, breach
of fiduciary duty and DTPA violations by the defense
attorney. Wooley v. Schaffer, 447 S.W.3d 71, 78 (Tex.
App.—Houston [14th Dist] 2014, pet. den’d) applied the
Peeler doctrine to claims of legal malpractice, breach of
contract, and DTPA5 and civil rights violations asserted
against counsel retained to seek post-conviction relief
through a writ of habeas corpus under Tex. Code Crim. P.
Art. 11.07. In its opinion, the Wooley court reviewed how
broadly that court has construed the doctrine:
We have applied the Peeler doctrine to claims for
breaches of contract and fiduciary duty and a
request for fee forfeiture. See id. (citing Johnson v.
Odom, 949 S.W.2d 392, 393-94 (Tex. App.—
Houston [14th Dist. ] 1997, pet. denied). We have
also applied the doctrine to all claims connected
to the conviction. Id. (citing McLendon v. Detoto,
No. 14-06-00658-CV, 2007 Tex. App. LEXIS 5173,
2007 WL 1892312, at *1-2 (Tex. App.—Houston
[14th Dist] July 3, 2007, pet. denied) (mem.op.).
Moreover, we have applied the doctrine to a claim
against an attorney retained to draft a post-
conviction petition for writ of habeas corpus that
was not filed. Id. (citing Meullion v. Gladden, No.
14-10-01143-CV, 2011 Tex. App. LEXIS 9334,
2011 WL 5926676, at *3-4 (Tex. App.—Houston
[14th Dist. ] Nov. 29, 2011, no pet.) (memo. op.)).
Wooley, 447 S.W.3d at 78.
24
THE DEFENDER / 2019, VOLUME 1
In light of the breadth of the Peeler doctrine as interpreted
by the First and Fourteenth Courts of Appeal, it is apparent
that the causes of action alleged in Plaintiff’s current
live pleading in this case have no basis in law while his
convictions stand.
L A C A K O F FA C T U A L B A S I S
As mentioned above, Peeler v. Hughes and Luce, 909
S.W.2d 494, 497-98 (Tex. 1995), held that a convicted
plaintiff’s conduct was not only the sole proximate
cause of the damages flowing from her indictment and
conviction but also the sole cause in fact of her damages
as a matter of law. Of necessity, that specific ruling
prevents a convicted individual from alleging any set
of facts to show a causal link between the performance
and omissions of her defense attorney and the damages
flowing from her conviction while the latter still stands. In
the context of this case, the Peeler doctrine compels the
conclusion that each cause of action alleged by Plaintiff
lacks any factual support for a causal nexus between the
actions of this Defendant and damages experienced by
Plaintiff with his criminal record intact. In other words,
the Texas Supreme Court has ruled as a matter of law that
a reasonable person may not conclude that any damages
suffered by Plaintiff as a convicted felon flow from the
conduct of this Defendant. Id. at 498.
CONTINUED : BEST DEFENSES
CONCLUSION
Because Plaintiff cannot show either a legal or a factual
basis for any of the causes of action pled in his fifth
amended original petition against this Defendant, this
Defendant respectfully asks this Court to grant his motion
under Tex. R. Civ. P. 91a and dismiss all of Plaintiff’s
claims against him.
PRAYER
Wherefore, premises considered, this Defendant
respectfully asks this Court to:
a. set this motion for timely hearing according to the
requirements of Tex.R. Civ. P. 9la.3(b);
b. timely order dismissed each cause of action Plaintiff
has pled against this Defendant;
c. conduct a post-dismissal hearing to consider evidence
on attorney’s fees and costs pursuant to Tex. R. Civ.
P. 91a.7;
d. award this Defendant the attorneys’ fees and costs
incurred in defending himself against these baseless
causes of action.
Respectfully submitted by Defendant
by,

1 4
See Esquivel v. Espinosa,_____ S.W.3d , 2018 Tex. App.
LEXIS 10777 (Tex. App.— Corpus Christi - Edinburg
Dec. 27, 2018, ____) (affirmed trial court’s granting
summary judgment, given law firm’s former clients’ claims
of torts and breach of contract against the law firm were
exclusively based upon communications within a judicial
proceeding, which were subject to privilege); Martinez
v. Hellmich Law Grp., P.C, 681 Fed. Appx. 323 (5th Cir.
2017) (Texas law barred attorney’s defamation and other
tort claims against a law firm for firm’s communications
were absolutely privileged, being made in relation
to a proposed arbitration that the firm contemplated
filing against the attorney on behalf of the firm’s
existing clients).
2
See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex.
1995) (held that convicted criminal, who without first
establishing that she had been exonerated by direct
appeal, post-conviction relief, or otherwise, was not
allowed to sue her attorney for malpractice, breach of
contract, or breach of warranty); Wooley v. Schaffer, 447
S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (imprisoned claimant’s causes of action for legal
malpractice, breach of contract and violations of the DTPA
and constitutional rights were barred as a matter of law
and fact under the Peeler doctrine, so the trial court did not
err in granting the Tex. Civ. P. Rule 91a motion to dismiss,
for when a criminal defendant has not been exonerated,
the sole cause of his indictment and conviction was his
own conduct).
3
DTPA and legal malpractice/negligent tort claims have
a two year limitation; civil conspiracy, federal civil rights
claims and claims of aiding and abetting, and knowing
participation in a scheme have a two year limitation; and
disgorgement/fee forfeiture and breach of contract claims
have a four year limitation.
25
2019, VOLUME 1 / THE DEFENDER
See Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex.
App.—Houston [1st Dist.] 2016, no pet.); Reaves v. City
of Corpus Christi, 518 S.W.3d 594, 608 (Tex. App.—
Corpus Christi 2017, no pet.).
5
Since the 1995 amendments to the DTPA where its
§ l7.49(c) excepted claims based on the rendering of
professional services from the act’s coverage, there may
be no further need for courts to apply the Peeler doctrine
to DTPA claims.
Joseph A. Connors III was licensed in
1973 and became Board Cer!fied
in Criminal Law in 1979 by the
Texas Board of Legal Specializa!on
(TBLS). He prac!ces solo criminal
and appellate defense in McAllen,
Texas, Hidalgo County. Mr. Connors
once won a murder acqui"al on direct
appeal when the mother of the alleged
vic!m tes!fied during the prosecutor’s
direct examina!on that her son was, in fact, s!ll alive.
The State produced no evidence that the murder “vic!m” was
actually deceased. Sandoval v. State, No. 13-91-379-CR, 1993
Tex. App. LEXIS 300, at *5 (op. on second mo!on for rehearing).
See also Sandoval v. State, 846 S.W.2d 9 (Tex. App. 1992, pet.
ref’d).
Michael A. McEnrue, a Houston Civil Trial and Appellate lawyer,
was a contributor to this ar!cle
26
THE DEFENDER / 2019, VOLUME 1

Protecting the Evidence

in Sexual Assault Cases
by Rachel D. Fischer BSN, RN, CFN, SANE-A, SANE-P
Forensic Nurse Examiner; Legal Nurse Consultant
 27

2019, VOLUME 1 / THE DEFENDER

In today’s criminal justice The proper help for victims of According to the Rape, Abuse
system there are people in jail sexual assault in Houston is & Incest National Network
who should potentially not be limited. The current system is (RAINN), 1 in 6 women and 1
in jail, and there are people who made up of only a few hospital- in 33 men in the U.S. have been
are not in jail who potentially based programs. Even those victims of rape or attempted
should be. There are two sides that do offer the service do rape and only 310 out of 1,000
to every sexual assault case, and not always have 24/7 forensic sexual assaults are reported to
both the victim and the defendant nursing coverage. A forensic the police. There are countless
need to rely on the evidence to nurse is a registered nurse who reasons victims don’t report
obtain justice. The evidence will is specially trained in how sexual assault or seek medical
speak for itself, if the evidence to care for the physical and care and evidence collection.
is collected properly. emotional needs of victims of all The reasons are unique to each
types of violence, who provides victim. Common dynamics
There is a significant problem unbiased patient care which aids include: fear of not being
with sexual assault in Houston, in promoting justice for both believed, being blamed for
Texas, and it is compounded victims and defendants. someone else’s behavior, fear
by a lack of competent sexual of retaliation and the stigma
assault nurses to do exams. The role of the forensic nurse is around sexual assault. There is a
The solution to that is not to win a case but to perform cultural skepticism surrounding
comprehensive forensic medical unbiased and comprehensive sexual assault reports.
care and evidence collection. medical forensic exams.
When the Houston Police We can all agree that
Department released crime A SANE is a Sexual Assault investigations in the criminal
statistics for 2017, a 12.6 percent Nurse Examiner, which is a nurse justice system should be
increase in sexual assaults was that has specialized training in grounded in facts and evidence;
reported. When discussing the the management of victims of however, sexual assault reports,
phenomena of sexual assault, sexual assault. In Houston, there unlike other crimes, tend to
many people reference the have been several accounts of start with an assumption that it
need for a “rape kit.” This is victims seeking help at various is a false report. This is true in
the common terminology for healthcare facilities and being healthcare with billing codes and
a medical exam that collects sent elsewhere only to find that charting systems. The patient’s
forensic evidence that can assist the next facility also lacks this medical record will usually
with identifying an assailant service. The solution to this read as “alleged sexual assault.”
through DNA findings. dilemma is going to be discussed Whereas someone who arrives
later in the article, but first we with a headache or chest pain
For victims, getting a rape will discuss the significance of will read as simply “chest pain.”
kit is not an easy process. A the issue. There is no “alleged headache”
victim can’t just go to any or “alleged chest pain.” The term
urgent care or hospital and It’s difficult for victims to report “alleged” fosters skepticism and
request this service. Aside from sexual assault and seek help, and disbelief and initiates a barrier
the confusion and dilemma there is a huge gap in Houston between sexual assault victims
surrounding the insurance and between the medical and legal and medical professionals.
payment expectation, there is management of patients who
a severe lack of emergency have been affected by physical
personnel trained to accurately and/or sexual violence.
perform this specialized exam.
28
THE DEFENDER / 2019, VOLUME 1
A federal law passed in 1986
known as EMTALA, (the
Emergency Medical Treatment
and Labor Act), which requires
that anyone who walks into an
emergency room be treated,
regardless of the ability to
pay. While freestanding ERs
in Texas are not mandated to
follow EMTALA, a section of
the Texas Administrative Code
uses similar language. If an
ER doesn’t have anyone who
can perform a sexual assault
exam, they’re supposed to
help the victim get to a hospital
that does.
Texas Senate Bill 1191
mandates that all Texas ER’s
have staff trained in basic
forensic evidence collection.
Even that mandate enforces
only basic knowledge. This
often leaves victims walking
away without proper care
and the risk of the evidence
being mishandled.
The nurse who provides care
to sexual assault victims
at these facilities may only
have received the minimum
CONTINUED : PROTECTING THE EVIDENCE
requirement of 2 hours of basic
training, yet they are expected
to perform the same quality of
forensic exam that a certified
SANE would perform.
A study by the Office for
Victims of Crime Bulletin found
that when a properly trained
forensic nurse completes a rape
kit, the quality and consistency
of the evidence collected
improves significantly.
The study also found that
evidence collected by trained
examiners are more likely to
include proper collection and
labeling of evidence, a complete
crime lab form, and the correct
number of swabs and other
evidence. The increased quality
of evidence translates into a
proper outcome at the criminal
justice level.
The solution to providing
comprehensive forensic
evidence collection and forensic
nursing experts is a community
based collaborative solution.
Harris County Forensic Nurse
Examiners (HCFNE), is set
to launch in February of 2019
and will be a community based
mobile forensic program that
has certified forensic nurses
available 24/7.
HCFNE’s mission is to provide
comprehensive medical forensic
exams with superior evidence
collection throughout Houston
and surrounding counties by
coordinating a victim-centered
response that assists in closing
the gap in the medical and legal
management of patients who
have been affected by physical
and/or sexual violence.
HCFNE will provide care for
both victims and suspects of
crime to ensure that forensic
evidence is properly collected,
and appropriate medical
care is provided.
Rachel D. Fischer, BSN, RN, CFN, SANE-A,
SANE-P (Forensic Nurse Examiner; Legal
Nurse Consultant). Rachel specializes in
human trafficking research and rescue,
and finding missing children. She came
to Houston from Detroit to build a
forensic nursing program to aid in proper
medical care and be"er outcomes of
survivors of violence. She has tes#fied
as an expert witness and does legal
nurse consul#ng. She gives lectures on
strangula#on and has been helping with
a strangula#on task force in Houston as
well as a domes#c abuse response team
(DART) to promote comprehensive care
of strangula#on vic#ms. Rachel travels
locally and interna#onally for public
speaking, trainings and interven#ons for
human trafficking.
 29

2019, VOLUME 1 / THE DEFENDER

eeds of
a n d s the n
y und e r s t use the
S h e fu ll a r t o a dapt and now
, lB g System rts.
l e a g u e s h e C r im in a il in
and Col
t d E -F u
u know ndate in a l C o
tate ma
F r i e n desw Y e a r . M a n y o f ypor a c t ic in g sin corpo r a t e d in t h e C r im t h a t n e e d
es
Happy N a s e r is s u the
m y t im e a s m b e r , in h e r e a r e s t il l u e is a ware of
fr o m CL A m e T ss e d . S h d ic t e d
a
me and HC D is t r ic t t o b e a d d r e n d is d e
y , d s a
att o r n e nty a n . ue s t io n t ready
a r io us Cou h ir t y years fr e quent q D e partmen
the v tha n t th e I T g t h e ir
fo r more e h a v e a ll t o h a v in g s w it h fi li n
Co u r t s , yea r s w to r n e y it ia t iv e
p a s t fe w e s in o u r t o a s s is t a t p o r t a n t in
In t h e c h a n g the r im tudy of
u n expected e s , b u t t h is c a s e s . A n o y s is t h e s
fa c e d ro u t in att o r n e c t r o n ic
r t h o u se work e a c hange b
y
a ff e c t in g t a t io n o f a n e le b e in g
co u ma k n
chose to u r n e w t h e im p le m e , now
t im e I p o in t m ent by o , a s u m m o n s system c o u n t ie s
.
c e p t in g an ap
il y n B u rgess ju ry s t h e r Texas e u s e
ac ar e c t iv e u s e d o r in g t h
C le r k , M o u r t s , e ff
in
is e x p lo e s u m m o n e d
D is t r ic t t y o f C h a s u r g e s s
f Depu McCoy Ms. B ens can
b
sts,
h e r C h ie , 2 0 19. Wes h ie f of -J u r y s o c it iz r e d u c in g c o
1 y C o f I s
January s Deput a ll y , t h
u
ates, an
d
e n a p p o in t e d a l b e a s s is t in g in e le c t r o n ic a r t ic ip a t io n r c o u r t
be I w il of p the
m in is t r a t io n . d a y o p e r a t io n in c r e a s in g o n g e s t io n in
A d ver y g c
in g t h e e a ll k n o w m in im iz in
fa c il it a t t h e c o urts. We t h e ir x .
k s in ork, and c o m p le
t h e c le r e fo lk s w ddressed
h a r d t h e s
t r o o m . m u st be a al
h o w
c e in the c o u r
n is s ue t h a t
n o f H is t o r ic
n A t io re
im p o r t a la t fo rm t h e p r e s e r v a n t ly t h e r e a
on a p is ur r e iv il
e s s w a s e le c t e d ff ic e m ore
D o c u m ents. C 0 c a s e fi le s o f c
Ms. Bur g e o 1 ,2 0 09-
g e , t o m a k e t h ic ie n t , a n d a p p r o x im a t e ly m e n t s fr o m 1 9
of chan e ff oc u al
r e s p o n s ib le , c e d . E v e n a n d c r im in a l d l in t h e ir o r ig in .
fi s c a ll y advan s t il es
g ic a ll y t il iz e d her 1925. These are , s it t in g in b o x
techno lo e u rve d l lo s e
a k in g o ff ic e s h ie d P u b li c s t a t e , u n p r e s e t e n t io n w e w il
b e fo r e t ert if ra t s has
u n d as a C fu ll a u d it W it h o u t p r o p e t o r y . M s . B u r g e s
backgr o uct a is urt
a n t to cond s t r u c t u r e . t h is v a lu a b le h m is s io n e r ’s C o
Accou n t en t Co m io n .
ff ic e ’s m a n a g e m a n c ie s t h a t a lr e a d y a s k e d g fo r p reservat
of the o redund in
covered
of id e fu n d
S h e d is e li m in a t io n r t o p r o v ety
e ly le d to t h e
ll o w in g fo p e r fo r o v e r n in
u lt im a t t, a ke e ic e is
o f m a nagemen g r e s o urces As the records t C le r k 's O ff
a la y e r t in is t r ic nd a
ll o c a t io n o f e x is r li n e -l e v e l c o u r t s , t h e D g d o c u ments, a
the re a ses fo ag in 4 / 7 in
id e p a y in c r e a r e c o g n iz e s c o n s t a n t ly im s a r e w o r k in g 2
to pro v rges s rk e n t ly
e s . Ms. Bu it h in the
n u m b e r o f c le h e r e are curr
e m p lo y e ie s w take . T the
r e s p o n s ib il it p o r t a n t it is C r im in a l I n e e m p lo y e e s in e r
t h e ir
m and h
o w im e in g o v e r 4 6 5 fu ll t
im h anoth
courtroo c e d c le rks by b r k ’s O ff ic e , w it
le
e x p e r ie n it iv e w a g e s . D is t r ic t
C
lo y e e s .
t o r e t a in r c o m p et t e m p o r ary emp
ff e 60
a b le t o o
30
THE DEFENDER / 2019, VOLUME 1

The office is also comprised of departments

in IT, Accounting, Administration, Jury
Management, Human Resources, Court
Registry, Evidence Retention, Passports, and
Imaging. The locations include:
201 Caroline,
1115 Congress,
1200 Congress,
1301 Franklin,
5900 Canal
and as of February 2, 2019, 701 San Jacinto.

Weekly average case filings include:

875 Criminal Felony,
1200 Criminal Misdemeanor,
875 Civil,
835 Family,
125 Juvenile,
and 325 IVD.
So, in a few short weeks I have learned just
how far this office reaches. If we can assist
you in any way please contact me. Also, if you
have concerns or comments on how we can
better serve you, we are open to suggestions.
Hope to see you around the courts. Please
remember to say good morning to the clerks
that assist you everyday.
Judith Snively, Marilyn Burgess, Wes McCoy
Judith A. Snively has more than thirty years of experience in
state and county courts. She offers a unique perspective on the
functions of the Harris County District Clerk’s Office due to
her professional interactions with clerks, judges and other legal
practitioners, as well as the citizens of Harris County.
Chief Deputy of Courts
Office of Harris County District Clerk
judith.snively@hcdistrictclerk.com
(832) 927-5777
-------------------

Wes McCoy brings over 40 years’ experience working as a

Deputy District Clerk. He has served at almost every level of
CONTINUED : NEWS FROM THE DISTRICT CLERK'S OFFICE

management within the District Clerk’s Office, including as a

Court Clerk. McCoy previously served as Chief Deputy for four
District Clerks in Harris and Galveston Counties.

-------------------

Marilyn Burgess was elected as the Harris County District Clerk

in 2018. She is a Certified Public Accountant with an extensive
background in business and public life. She worked for the Texas
Parents Teachers Association (PTA) in Dallas, where she worked
with lawmakers to pass legislation for the health, education,
and welfare of the children of Texas including the Children’s
Health Insurance Program, Graduated Driver’s Licensing, and
other laws. She later served as President of the North Houston-
Greenspoint Chamber of Commerce where she helped win a
tax designation favorable to area businesses and gained an
intimate knowledge of the needs and concerns of small and
large businesses. Prior to the election, she served as Chief
Financial Officer at The Fastener Connection, a family-owned
company in north Harris County.
 31

PRAIRIE DOG 2019, VOLUME 1 / THE DEFENDER

LAW YER OF TEXAS

BY CHUCK LANEHART
Chuck Lanehart discusses Temple Houston, criminal defense
lawyer and son of Sam Houston. His article was featured in the
Lubbock Avalanche-Journal in January 2019.
32
THE DEFENDER / 2019, VOLUME 1

He was said to be the best shot in the West. He developed a reputation as a fierce advocate
“Old Betsy,” his white-handled Colt revolver, and a magnificent orator. During sessions of court,
was always strapped to his waist. He wore people came from throughout the area to witness
beautifully tailored buckskin attire from Mexico the courtroom drama, camping out for several
and a hand-woven sombrero with an exceedingly days. It was worth the loss of time from farming or
wide brim, a silver eagle displayed against its ranching to watch “Old Sam’s boy” perform.
high crown.
He was elected state senator in 1884, the youngest
Like his father, he stood more than 6 feet tall. His in Texas history at age 24. In 1888, a crowd of
auburn hair was shoulder-length, and his eyes 50,000 heard Temple’s speech dedicating the new
were steely gray. His knowledge of the Bible and Texas Capitol building at Austin.
classical literature was encyclopedic. When he
spoke, everyone listened. By the 1890′s, Temple was a criminal defense
attorney. Accounts of his courtroom performances
The man was not an outlaw or a gunslinger, nor are legendary. In 1899, he defended Minnie
a preacher. No one dared call him a dandy. He Stacey, a “soiled dove” of the Oklahoma Territory.
was Temple Lea Houston, the most celebrated His impromptu “Plea for a Fallen Woman” in
and colorful of the Prairie Dog lawyers, pioneer summation is regarded as a legal classic:

“
advocates who chased justice on the Texas and
Oklahoma plains in the late 19th century.
Born in the Texas Governor’s Mansion in 1860,
Temple was the youngest son of Sam Houston,
iconic soldier and first President of the Republic of
Texas. He left home at age 13 to join a cattle drive
and later worked on a riverboat on the Mississippi
River. After a stint as a U.S. Senate page, he
CONTINUED : PRAIRIE DOG LAWYER OF TEXAS
You heard with what cold cruelty the
prosecution referred to the sins of this
woman, as if her condition were of her
own preference. The evidence has painted
you a picture of her life and surroundings.
Do you think that they were embraced of her
own choosing? Do you think that she willingly
embraced a life so revolting and horrible?

graduated with honors from Baylor University, Ah, no! Gentlemen, . . . Our sex wrecked her
majoring in law and philosophy. At age 21, he once pure life. . . and only in the friendly
became the youngest licensed lawyer in Texas. shelter of the grave can her betrayed and
broken heart ever find the Redeemer’s

”
Two years later, Temple was appointed the first promised rest.

“
district attorney for the Texas Panhandle, based in
Mobeetie, Wheeler County. His district covered
14,000 square miles, about the size of Switzerland,
but with few residents and only two other towns,
Tascosa and Clarendon. He prosecuted murder,
assault, stock theft and prostitution cases. Gambling
was also illegal, but Temple said, “It would have
been impossible to enforce Texas’ gaming statutes
without arresting the entire populace.”
If the prosecutors of the woman whom you
are trying had brought her before the Savior,
they would have accepted His challenge and
each one gathered a rock and stoned
her, in the twinkling of an eye.
No, Gentlemen, do as your Master did twice
under the same circumstances that surround
”
you. Tell her to go in peace.
 33

2019, VOLUME 1 / THE DEFENDER

The all-male jury quickly acquitted Minnie Stacey. Chuck Lanehart is a shareholder in the
Lubbock firm of Chappell, Lanehart &
Stangl, PC, where he has prac!ced
Temple defended a man accused law since 1977. He is a charter
member and former president of the
of murder. During final argument, Lubbock Criminal Defense Lawyers
he dramatically demonstrated the Associa!on. Chuck served as director
terror his client felt to be of the State Bar of Texas, District
16, and as president of the Lubbock
threatened by an experienced gunman: Area Bar Associa!on (LABA). He has chaired

“
What would any of you worthy
gentlemen have done in the face of
the LABA's Courthouse Security Commi"ee since its forma!on in
2012. He was the founding editor of LABA’s official publica!on,
The Lubbock Law Notes, in 1987. Texas Monthly magazine has
named him a “Super Lawyer” in the field of criminal law.

such a character? Do you have any idea

how you would have fared against the
lightning draw of a gun-artist—unless you
had drawn first? This malefactor was so adept
with a six-shooter that he could place a gun in
the hands of an inexperienced man, then draw

”
and fire his own weapon before his victim
could pull the trigger. Like this!

He suddenly whipped out Old Betsy from beneath

his frock coat, pointed the revolver directly at the
jury, and emptied it rapidly. The jury and everyone
in the courtroom scattered. When court resumed,
Temple assured the court he had fired blanks.
The jury quickly returned a verdict of guilty.

Temple moved for a new trial, arguing the jurors

had violated their duty to remain sequestered.
The judge was obliged to follow the law and
granted a new trial. Months later, Temple’s client
was acquitted by a different jury. He shot two men
dead in separate Oklahoma bar fights, but Temple
beat both murder cases.

In 1905, Temple died of natural causes at age 45.

© 2019 Lubbock Avalanche-Journal.

Reprinted with author's permission.
34
2019 J u d i cial
THE DEFENDER / 2019, VOLUME 1

Suggesti o ns
After 35 years in State and
Federal court, Robb Fickman
has a few suggestions on how
our State and County Criminal
Courts can further improve our
criminal justice system.
STOP HAVING FREQUENT
UNNECESSARY SETTINGS

STOP REQUIRING THE ACCUSED

TO COME TO ALL SETTINGS

DO NOT LET YOUR STAFF ABUSE

THE ACCUSED OR THEIR LAWYERS

BE PATIENT IF COUNSEL DOES NOT

KNOW ALL OF YOUR PET PEEVES

DISTRICT COURTS SHOULD GRANT

PR BONDS ON STATE JAIL FELONIES

DO AWAY WITH ONEROUS

BOND CONDITIONS

DO NOT ENGAGE IN EX PARTE

COMMUNICATIONS WITH PROSECUTORS

REMEMBER WE ARE ALL HUMANS

DO NOT PUNISH THE MANY FOR

THE FAULTS OF A FEW

DO NOT GIVE THE PROSECUTOR

A HOME COURT ADVANTAGE
(DO NOT BE THE JUDICIAL BRANCH
OF THE DISTRICT ATTORNEY'S OFFICE)

DO NOT APPOINT LAWYERS WHO WILL NOT

ZEALOUSLY DEFEND THEIR CLIENTS

DO NOT APPOINT ANY LAWYER

TO TOO MANY CASES

REA D MORE ON PAGE 1 6

D E F E N D E R
2019 / VOLUME 1

THE DEFENDER
PO Box 924523
Houston TX 77292-4523