Harris County Criminal Lawyers Association

HCCLA 2018 Award Winners

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The Harris County Criminal Lawyers Association wishes to congratulate this year’s outstanding award recipients in the following categories: Lifetime Achievement, Lawyer of the Year, Torch of Liberty, Unsung Hero, and Mentor of the Year.  Each will be honored at the 48th HCCLA Annual Banquet during our awards presentations on May 10, 2018 at the Houston Ballroom at Bayou Place, 500 Texas Avenue, Houston, 77002. Please join us in celebrating their achievements. Make your reservations!


For more information:
HCCLA.org/banquet

DON’T TAKE YOUR GUNS TO TOWN

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Don’t Take Your Guns to Town, by Robert Pelton (past president)

If Wild Bill Hickok was walking down the streets of Houston or Abilene or any other place in Texas with his guns, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license but Wild Bill doesn’t carry his pistols in a holster, he carries them stuck in a sash wrapped agun totinround his waist. Too bad he didn’t understand the nuances of the new open carry law, but then, who does?

Several months have passed since the law was signed giving law enforcement time to study and prepare for a freedom not allowed in Texas since after the War Between the States. But there is significant controversy about the new open carry law.

Growing up in Abilene we all watched John Wayne, Audie Murphy, Lash Larue and other war and cowboy movies, where the good guys fought for noble causes and always won the day. And once again we are returning to the days of wearing a holster on our hip. But it turns out carrying a gun is more dangerous than “The Duke” may have led us to believe. When real bullets fly real lives are impacted in ways not illustrated on the silver screen.

Guns sales are at an all time high. The murder rate has escalated in Texas and many other places. There were 283 murders in Houston in 2015; the last one was in a hotel on the north side of town. Today, citizens are fearful about where our communities are headed. We all want to feel safe in our homes and when out in public. As a result, many law abiding citizens are choosing to carry guns for protection.

Every gun owner should know the power they have to do either good or harm with the weapon they carry, and the risk they take by carrying. Unless a person has been in the military or worked in law enforcement, they may not be properly trained on how to defend themselves or use a firearm. And they likely have not truly grasped the potential consequences of that act. We all want to protect our families, friends, other citizens and ourselves from the bad guys, but before this happens you need to be prepared. Buying that new shiny pistol is exciting but before you carry or shoot it, remember that pistol is a tool – a dangerous tool. Get the right kind of pistol. Study it, examine it, read the instructions, and practice safely with it before you start toting it around.

For your own safety, as well as others, you should understand how to care for your pistol. One of my gun toting friends who usually carries a couple of pistols was bragging about being prepared. I asked him to let me examine the pistol he carried in his boot. It would not even work because it was so dirty. He was embarrassed. A retired Texas Ranger friend of mine who gave me his hideout gun showed me the one he now carried. He, too, was embarrassed as I pointed out to him it might shoot one time and no more because the slide was dirty. Recently in Abilene, a group of my friends were showing off their barbeque guns, those shiny big guns they wear when having a cook out. One of them was fooling with his pistol and it accidentally went off. Luckily it did not kill one of them.

Today, the new law allows a person with a concealed hand gun license to openly carry if it is in a holster. The Old West may have risen again, but the “basics” of carrying a gun will never be the same. With more freedom comes a greater responsibility to be well trained on handling and operating a weapon. It also comes with some legal risk to the carrier. The district attorney has graciously provided HCCLA an interpretation of what the law means. JoAnne Musick, as president of HCCLA, has provided us with the position of the defense bar. While they are similar in many ways, there is still some polite disagreement about what the new law means. Can a police stop you and ask to see your license? Yes! Should you show it to them? Yes! But what happens if you don’t? Well….it is a little unclear. This lack of legal clarifications as to the application of this law is a problem, and it will be for your future clients. We will only know the answers when someone is arrested and judged on the facts of their situation. Be aware that someone will be the guinea pig on which this law is tried and those yet-to-be-determined answers are defined. That person may be your client.

As lawyers, what do we advise our gun toting clients?  Make sure you have a good reason for openly carrying your shiny new pistol and that you have a concealed hand gun license if you intend to carry one. Be aware that you may, and probably will be, a target for law enforcement to stop and ask you questions. When the police may ask you if you have a permit be polite and tell them the correct answer. This is the moment where potential problems arise. Also be aware that if you are in the wrong place at the wrong time an outlaw may try to shoot you first because you are openly carrying a pistol.

We do know that Penal Code 46.02 still remains the law and allows gun rights to those individuals who do not have a concealed handgun license. The revisions that took effect January 1, 2016 now state that a person commits an offense if the person intentionally, knowingly, or recklessly carries a handgun in a motor vehicle or watercraft that is owned or controlled by that person at any time if (1) the handgun is in plain view, unless the person is licensed to carry a handgun and the handgun is carried in a shoulder or belt holster, or (2) the person is engaged in criminal activity, or (3) prohibited by law from possessing a firearm, or (4) a member of a criminal street gang.

Also note that even with a license a gun owners can’t waltz into just anywhere without taking notice of the posted signs. Gun owners and business owners alike should be aware of Texas Penal Code 30.06 which details the requirements for signs a business may display to prohibit guns on their premises. According to a “reliable and credible” law enforce source who shall remain nameless for his own protection, many of the signs posted by business owners are not even effective as they do not comply with the code. This may save your gun-slinging client but not your gun-shy business owner. Makes sure you have crossed all your “T”s and dotted all your “I”s before posting your sign and expecting it to be enforced.

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Penal Code 30.06

(a) A license holder commits an offense if the license holder:

(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that:

(A) entry on the property by a license holder with a concealed handgun was forbidden; or

(B) remaining on the property with a concealed handgun was forbidden and failed to depart.

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c) In this section:

(1) “Entry” has the meaning assigned by Section 30.05(b).

(2) “License holder” has the meaning assigned by Section 46.035(f).

(3) “Written communication” means:

(A) a card or other document on which is written language identical to the following: “Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a  person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun”; or

(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height; and

(iii) is displayed in a conspicuous manner clearly visible to the public.

(d) An offense under this section is a Class A misdemeanor.

(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

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AS WE ENTER THE NEW YEAR with the open carry law, there are several things to remember: safety first. A firearm is designed to kill. Yes, there are some people who skeet shoot or go to a gun range but a firearm is designed to kill. If you have ever been in law enforcement as a licensed peace officer or in the military, you will know the consequences of weaponry ignorance. Firearms are not games. They are designed to cause destruction of a target. And secondly, this new law could dramatically affect the status quo. Our clients need to understand they must make sensible decisions when choosing to carry. We know many of them will not. That is what keeps us in business. Still, we as lawyers are also in the law enforcement business. Our job is to make sure our clients are legally arrested and searched. This job is made more difficult now because no one knows for sure the details to this new law. Johnny cash sang a song, DONT TAKE YOUR GUNS TO TOWN. I RECOMMEND YOU READ THE LYRICS OR LISTEN TO THE SONG before you take your guns to town. Think long and hard about the consequences. (https://www.youtube.com/watch?v=KMMp_llzBT4)

 

Do you want to go away peacefully in the night or “Die with your Boots On??” Do you want to be judged by 12 or carried by 6?

“I have a very strict gun control policy. If there is a gun around, I want to be in control of it.” – Clint Eastwood

“There are no dangerous weapons. There are only dangerous men.” – Robert Heinlein

“A man’s rights rest in 3 boxes. The ballot box, the jury box .and the cartridge box.” – Frederick Douglas

This is all very serious business and when a shooting happens, many people may “beat the rap but not the ride.”

 

“Open Carry” NOT “Papers Please”

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Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

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[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

Mentoring in Criminal Defense

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Law school does not prepare lawyers for the courtroom generally. It teaches them to think, to analyze, and to process, but it does not generally teach the techniques necessary to the courtroom.

In criminal defense, most lawyers are solo practitioners. Many hang their shingle and start accepting cases immediately out of law school. Others may start in a prosecutor’s office but still do not understand the nuances of “defense” work or running a practice. In this vein, mentoring is vitally important.

HCCLA has led the forefront for mentoring in Texas. We have the largest and most successful second-chair program. We have worked with the public defender to further mentoring by assisting in the FACT program (future appointed counsel training). The goal has been to train lawyers in both private practice and indigent defense. By increasing the quality of defense lawyers, the entire system works stronger and better.

HCCLA’s second-chair program has been in existence for many years and is quite successful, thanks to the efforts of Sarah Wood (our coordinator) and all of those who regularly participate in the program.

You can read and download the entire report here:

Download (PDF, 929KB)

Happy Constitution Day

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Harris County Criminal Lawyers Association
Celebrates Constitution Day

September 17th is Constitution Day, and this year HCCLA began a new tradition of celebrating our United States Constitution with a public reading of the Preamble and Amendments. HCCLA also provided commemorative pocket constitutions for attendees and passersby.

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This event is modeled after our celebration and reading of the Declaration of Independence with occurs each 4th of July and was started by Past President Robert Fickman.

Special thanks to member Grant Scheiner for the inspiration for this event and to Grant, Philip Gommels, Jennifer Gaut, and Gemayel Haynes for organizing this celebration.

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Thank you to the following lawyers for participating in the reading of the United States Constitution Preamble and Amendments:

JoAnne Musick – Preamble
Grant Scheiner* – 1st Amendment
Danny Easterling – 2nd Amendment
Dyan Owens – 3rd Amendment
Gemayel Haynes – 4th Amendment
Jen Gaut & Lydia Johnson – 5th Amendment
Phil Gommels – 6th Amendment
Andrew Wright – 7th Amendment
Robb Fickman– 8th Amendment
Lonnie Knowles – 9th Amendment
Patti Sedita – 10th Amendment
Alma Garcia – 11th Amendment
Cheryl Irvin, Ryan Marquez and Alan Macia – 12th     Amendment
Staci Biggars – 13th Amendment
Michael Wynne – 14th Amendment, §1
Justin Harris – 14th Amendment, §2
Wade Smith – 14th Amendment, §3
Roberto Quijano – 14th Amendment, §4 (TSU student)
Akeem Ayinde – 14th Amendment, §5 (TSU Student)

Shout out to the judges who took time to attend and celebrate with us:
Michael McSpadden, Mike Schneider, Brock Thomas, Brad Hart, and Renee Magee (who was out of town but asked her coordinator, Joey DeBruyen, to attend in her absence)

Photos of the event can be found here

Texas Lawyer coverage!

Controlling Chaos

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Practice Pointer: Controlling Chaos
by JoAnne Musick

If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.

  1. Set Priorities

Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.

  1. Calendar

Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.

  1. Electronic Files?

Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.

  1. Face the Music

Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.

  1. Make a List

Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!

PR: Constitution Day Celebration

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FOR IMMEDIATE RELEASE

Contact: JoAnne Musick, HCCLA President
Office: (832) 448-1148 Cell: (832) 326-8864
email joanne

CONSTITUTION DAY CELEBRATION
PUBLIC READING OF BILL OF RIGHTS & OTHER CONSTITUTIONAL AMENDMENTS

Houston, Texas – August 20, 2015 – Please join the Harris County Criminal Lawyers Association (HCCLA) at 11:30 a.m. on Thursday, September 17, 2015 for a brief, public celebration of Constitution Day. HCCLA members will read the Bill of Rights and other Constitutional Amendments on the courthouse steps of the Harris County Criminal Justice Center at 1201 Franklin, Houston, Texas 77002.

This event draws its inspiration from HCCLA’s annual public reading of the Declaration of Independence, which has served as a model for over 100 local criminal defense lawyer organizations engaging in similar yearly readings across Texas.

What: Constitution Day (also known as, “Citizenship Day”) is a federally observed date to commemorate the signing of the United States Constitution in Philadelphia, Pennsylvania, on September 17, 1787. As criminal defense lawyers, HCCLA members fight daily to protect the Constitution and its safeguards, many of which are set forth in amendments to this cherished document. HCCLA wishes to remind citizens of the importance of their Constitutional rights, for which so many have sacrificed and some have paid the ultimate price. HCCLA’s public reading of fundamental rights enshrined in Constitutional amendments—including the first ten, known collectively as the “Bill of Rights”—will be a brief and simple gesture which HCCLA hopes the Houston-area media will cover as a public service.

When: 11:30 a.m. on Thursday, September 17, 2015. Event should last approximately 20-30 minutes.

Where: Front steps of Harris County Criminal Justice Center (Criminal Courthouse) at 1201 Franklin, Houston, Texas 77002 (corner of Franklin and San Jacinto, downtown Houston).

Who: Event is sponsored by the Harris County Criminal Lawyers Association, America’s oldest and largest local organization of criminal defense lawyers, with over 750 members. Public reading of Bill of Rights and other Constitutional Amendments will be led by HCCLA President JoAnne Musick. Event co-organizers are Houston attorneys and HCCLA members: Jennifer Gaut, Philip Gommels, Gemayel Haynes and Grant Scheiner.

What Else: Members of the public who attend this event will receive pocket-sized copies of the United States Constitution. For background information on HCCLA, visit www.hccla.org. For historical background on Constitution Day and information about other celebrations, visit the National Constitution Center at: www.constitutioncenter.org/calendar/constitution-day-2015

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Nothing To See Here, Move Along People

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If you’ve been following the David Temple story, you know that Judge Gist found veteran ex-prosecutor Kelly Siegler committed at least 36 instances of misconduct and/or hid evidence. A prosecutor’s duty is to do justice. How can justice be had amongst lies, hidden evidence, and a win at all costs mentality?

Now, lawyers for David Temple have requested the Office of District Attorney, which has accepted no responsibility for prior transgressions by its own, to recuse itself from the continuing legal battle.

Instead of determining whether or not recusal is in the interest of justice, Devon Anderson asks, “Why should I?” In essence she says they have not given her a good reason to recuse her office.

How about Justice? How about Integrity? How about Public Trust? How about Appearance of Impropriety?

We can think of many reasons that seem to escape Ms. Anderson.

Read Ms. Anderson’s response here: 

Download (PDF, 200KB)

Will the Harris County District Attorney Accept Responsibility?

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Our clients have problems.

Despite their denial, the Harris County District Attorney has problems as well.

They want our clients to accept responsibility. Will they as well?

In yet another instance, injustice and an appearance of impropriety permeates the Office of District Attorney for Harris County. Apparently, it seems the prosecutor and the bailiff engaged in a series of conversations and text messages about the jury. The importance of this is two-fold: (1) the bailiff, a Harris County Deputy Sheriff, is an officer and arm of the court who is the only person authorized to speak with jurors and (2) the prosecutor is an officer of the court who is forbidden from talking to the jurors. Granted, the prosecutor did not engage in direct communications with the jurors; however, she did attempt to communicate through the bailiff.

She texted the bailiff saying she wished she knew what the jury was thinking. The bailiff responded saying he would find out. THAT IS INAPPROPRIATE. There is no way to spin this so that any part of that conversation was proper and within the rules that require the court (via his bailiff) and the parties (via the prosecutor) to avoid the appearance of impropriety.

So what’s the big deal? Well, the thing is this is just one of many instances – all seemingly small – which cast doubt on the ability to have a fair trial in Harris County.

When will Devon Anderson accept responsibility? She didn’t in her response to our request about Dan Rizzo and the Alfred Brown case. She didn’t in an inquiry about prosecutor’s Connie Spence and Craig Goodhart threatening witnesses. She hasn’t in her media responses to the Kelly Siegler findings of prosecutorial misconduct. And, she hasn’t here. What will it take?

 

Hollywood: Cold INjustice

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Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

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Harris County Criminal Lawyers Association
P.O. Box 924523
Houston, TX 77292-4523
(713) 227-2404