September-October 2016

Our first winner in the Article 42.12 rewrite contest

Rob Kepple

TDCAA Executive Director in Austin

In the July-August edition of The Texas Prosecutor I announced a contest: Find a substantive change in the Code of Criminal Procedure’s Article 42.12 re-write and win the TDCAA book of your choice.
    I think our first responder is a winner. Judge Larry Gist from Beaumont wrote to point out a rather obvious change: The very first section of CCP Art. 42.12, whose title was “Purpose,” was deleted in the re-codified CCP chapter 42A. But is that a substantive change? Does it change the meaning of the words?  
    I agree with Judge Gist that it does, and here is why. The stated purpose of Article 42.12 is “to place wholly within the state courts the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of community supervision and the supervision of defendants placed on community supervision. …”  But that is not what Art. 42.12 does. Indeed, the article has evolved into the home for limitations on a judge’s authority when it comes to his discretion to impose community supervision and conditions of supervision.  What was once a simple section that said essentially, “Judges, just go do justice,” is now, “Here is a big, long list of things you can’t do.”
    And I agree that this was intentional. Many of you may recall efforts in the late 1990s to legislatively delete Art. 42.12 and revert to a simple “use your judicial discretion and do a good job” approach. A lot of judges and lawyers liked the idea. But there was one problem: No legislator would file such a bill. Finally, a state senator explained the problem to us: Legislators liked Art. 42.12 as it was because that is where legislators could tell judges what to do. Why would a legislator want to change that?  
      So Judge Gist, I think you are indeed right. The purpose of Art. 42.12 has changed, and the new Chapter 42A will carry that change forward. A TDCAA book of your choice is on its way!

Who will rebuild trust?
It has been a tough summer for Dallas and indeed, the whole country, in the wake of police shootings and ambushes in cities across the nation.  It feels like Black Lives Matter and Blue Lives Matter have squared off in many respects. How does this work out?
    A recent poll by the Texas Tribune revealed that 73 percent of readers believed that it will be community groups and other local leaders who find the right path—not the legislature, state leaders, police groups, or others. Could it be that district and county attorneys are in a unique position to lead the way? I think maybe so. After all, these shootings and use of force cases land on your desk—ultimately all of the parties intersect in your office.
    Many of your colleagues agree. In August the TDCAA Diversity, Recruitment, and Retention Committee met to discuss the issues facing our profession and communities, including what prosecutors can and should do in these uncertain times. The discussion went beyond the intricacies of investigating and prosecuting use-of-force cases and included the role of Texas prosecutors in restoring a sense of balance to our communities. So stay tuned: There will be more to follow. If you want to get involved in the discussion and the work of the committee, just give me a call.

Prosecutors leading on conviction integrity
In the July­–August edition of this journal, I talked about how prosecutors are the key to reform in criminal justice and that they have taken the lead in DNA, discovery, and other critical reform efforts. So it was satisfying to see the cover of the July 10, 2016, New York Times Magazine: It featured a letter from the Harris County District Attorney’s Office to a one-time criminal defendant informing her that there had been a flawed drug test and that she had been prosecuted in error. The article behind the cover image raised a lot of issues about pre-trial detention, police use of preliminary drug test kits, plea bargaining, and the role of the defense attorney.
    I know we tend to cringe when we see that the New York Times has written something about Texas prosecutors, but by putting that letter on the front cover, the Times tacitly acknowledged that Texas prosecutors are dedicated to getting it right. Indeed, the article credits Harris County Assistant DA Inger Chandler with exposing the problem with convictions based on the field tests, DA Devon Anderson with devoting resources to the problem and committing to exonerating innocent individuals, and former Assistant DA Marie Munier (who wrote the letter on the front of the magazine) with getting the job done. You can read the article here:
    Finally, Inger recently published an article in the Summer 2016 issue of the American Bar Association’s Criminal Justice Section journal titled, “Conviction Integrity Review Units: Owning the Past, Changing the Future.” In the article she discusses the development of conviction integrity units in Texas and how prosecutors have engaged in a collaborative approach to reviewing cases, which has reaped benefits. You can read it below.

The Honorable Gerald Goodwin
I am saddened to report the passing of a well-respected and beloved former DA and jurist, Judge Gerald Goodwin. Gerald was a towering figure in the East Texas legal community, having started prosecution in 1971 in Houston before moving home to Lufkin in 1974 to begin a storied career as a prosecutor and then a judge. Indeed, until very recently Gerald was sitting on the bench overseeing Angelina County’s “rocket docket.” I got to know Judge Goodwin when I came to the association. He was a big supporter of the Foundation and obviously loved our profession—he’d regularly miss judicial conferences to come to our Annual Update in September. We will miss you, Judge.     

Welcome new—but not green—prosecutors
Welcome to a folks who have taken the reins in county attorney offices. First, Rodolfo Gutierrez is our new Jim Hogg County Attorney. But he is not new to prosecution—Rudy began his career as an assistant DA in Jim Hogg County way back in 1977, which might make him the longest-serving assistant in the state.   
    And hello once again to Ed Walton, who is now the Loving County Attorney pro tem.  Y’all might remember that Ed was the CDA in Kaufman County from 2003 to 2006. He still lives there, but through happenstance now spends some time in Loving County as its county attorney. Loving is one of our least-populated counties, as it’s home to only 86 Texans but 452 oil wells. If just one more lawyer moves there, the legal profession will boom!  
Thanks to Bobby Bell
Congratulations to Bobby Bell, who had served as the Jackson County Criminal District Attorney for 32 years until his appointment in August to the 267th Judicial District Court bench. Bobby’s reputation and legacy is that of a strong advocate for the right of victims. Knowing Bobby, I’m sure that adjusting to the more passive role of district court judge will take a week or two, but he will be a great judge. Thanks, Bobby, for your service!   

Automated vehicle update
About a year ago I went to a conference with folks from the Texas A&M Transportation Institute.  The purpose was to meet with prosecutors and law enforcement to explore the issues involving traffic law enforcement when it comes to automated vehicles. Officers in the room quickly identified some basic issues: If there is a wreck, how does the officer move and/or turn off the automated vehicle (abbreviated as AV)? If the AV commits a traffic violation, how does the officer pull it over? Who gets the ticket? What if the AV hits someone and fails to stop and render aid? What if the AV is pulled over and a drug dog hits on it because it is being used as an automated drug courier? Fully automated vehicles will be hitting the roads soon, and these questions will need answers.  
    Texas A&M is working on them and has recently issued a report on the challenges of moving into an AV world. Check it out below.

Speaking of vehicles …
It was the end of an era when we at TDCAA said goodbye to our trusty white Suburban (“the ’burban” for short—it’s pictured in the top photo at right), which had carried our training team all over this great state for more than 10 years. Truth be told, we can be pretty tough on vehicles (the ’burban had its fair share of windshield cracks and bumper scrapes), and it was high time to get a new one to tote us—and all of our gear—to Galveston for our Annual conference in September.
    Enter Frank the Tank. That’s a photo of him, below. He is our new TDCAA van/truck/tank, and he is a shiny black Nissan beast designed to haul lots of people (which we have) and lots of stuff (which we also have). A world of thanks to Shannon Edmonds, our trusty Governmental Relations Director, who researched, shopped for, and test drove vans and SUVs in search of the exact right vehicle for our needs. He earned a debt of gratitude from all of us—as well as naming rights for the beast. Some of you may remember that Frank the Tank was Will Ferrell’s nickname in the movie Old School (it’s a TDCAA staff fave and is consistently quoted around these parts), always up for a party—and maybe a little streaking. We’re not exactly sure why Shannon went with that nickname, but we’re going to keep a close eye on both him and our new ride for the near future, just to be safe.

The first lawsuit over guns in the courthouse
In the last six months, different counties have gotten letters from the Attorney General’s Office notifying county officials that various county buildings had improperly posted signs prohibiting concealed firearms on the premise. The AG had the unenviable task of managing the complaints around those signs made by open-carry and constitutional-carry advocates, and that office has been doing a great job of working out these problems all over the state.
    Well, one of our prosecutors decided enough was enough and “cut out the middle man,” so to speak. Recently Elton Mathis, our Waller County CDA, filed a declaratory judgment action naming Terry Holcomb, the Executive Director of Texas Carry, as the defendant. The lawsuit’s goal is simple: to secure a legal ruling that §46.03(a)(3) of the Penal Code means exactly what it says, that guns are not allowed in a courthouse. Period. To read the lawsuit, download the declaratory judgment below.
    Just before this issue went to press, Attorney General Ken Paxton filed suit against Waller County on this very issue, so stay tuned to see how it all plays out.

Welcome, August James Martin!
We are thrilled to report that Ashley Martin, our most excellent Research Attorney, has a son!  August James Martin was born on July 6 at a healthy 8 pounds, 2 ounces. Everyone is doing great, and we’re proud to add another soul to the TDCAA family.

The Seeds of Injustice
I enjoy reading a good crime drama, and it is even more fun when it is written by one of our own. The most recent novel by a TDCAA member is The Seeds of Injustice by Rusk County and District Attorney Micheal Jimerson. It is a good read and a lot of fun as it is a bit of a “period piece” set in post Civil-War East Texas. Here’s the back cover description: “Caleb Philips returns from the carnage of the Civil War to find his wife dead, his teenage son rebelling, and his native East Texas in turmoil. Before he can begin to rebuild, another returned veteran, ex-Confederate general-turned-judge Matthew Ector deputizes him to hunt down the cold-blooded killers of several newly freed slaves. In the meantime, Ector himself must deliver justice in a courtroom for an Indian chief and former rebel general under the hostile gaze of the Union occupying authorities. In a rip-roaring tale stretching from the Piney Woods of East Texas to the barren desert of the Comancheria in New Mexico, author Micheal Jimerson weaves a powerful tale of love, loss, vengeance, and forgiveness.”
    You can find it on Amazon at