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1 THETEXAS PROSECUTOR The Official Journal of the Texas District & County Attorneys Association Volume 34, Number 3 May/June 2004 It shall be the primary duty of all prosecuting attorneys not to convict, but to see that justice is done. Art Texas Code of Criminal Procedure What does Crawford v. Washington 1 mean for future prosecution? What effect will this Supreme Court decision have on excited utterances, dying declarations, and child outcry? By Chuck Mallin Appellate Chief in Tarrant County CDA s Office The Crawford decision is, for prosecutors, probably the most important interpretation of the Sixth Amendment Confrontation Clause in 20 years, as it may place major limitations on what was once a legitimate prosecutorial trial tactic of introducing out-of-court statements of co-conspirators, co-defendants, and now any declarant s testimonial outof-court declaration. This decision will not only effect trial strategy, but also how prosecutors initially evaluate cases. This article is an attempt to explain the holding and its underpinnings so that defense challenges can effectively be met. The ultimate questions are how far the United States Supreme Court will go in extending the rationale of this decision and what are the limitations on a prosecutor s ability to introduce out-ofcourt statements that are testimonial in character. Case background Michael Crawford was convicted in Washington state court of attempted murder for stabbing a man who allegedly tried to rape his wife, Sylvia. She was present at the time of the stabbing and, under the evidence adduced, was probably an accomplice. On the night of the offense, the petitioner apparently became angry at the victim for making sexual advances toward Sylvia. Continued on page 12 Also in this issue Read a recap of Susan Wright s high-profile murder trial in Houston page 25 DWI suspects refusing to provide breath samples? Find out how one Texas county gets search warrants for blood in those cases page 28 Yet another reason to get a good night s sleep (and to make sure the kids do too) page 43 * Editor's note: How will Crawford affect victim statements in family violence cases when the victim refuses to testify? For more information on Crawford s effect on excited utterances in family violence cases, please visit TDCAA s web site (www.tdcaa.com) for a brief written by R. Darin Darby and Jane Waters of the Harris County DA s office. It includes a hypothetical domestic violence case and, with detailed case citations, explains how the victim s excited utterances should still be admissible, even without her testimony.to find the article, click on any link in Issues in Prosecution, then search for Crawford.

2 TDCAA Book Order Form Order by Fax: 512/ Phone: 512/ Web: Mail: 1210 Nueces St., Austin,TX Name Shipping address (no P.O. boxes) Office City ZIP Phone Fax Purchase order # (state offices only) Code MJ PR Visa or Mastercard # Expiration date CRIMINAL CODE BOOKS Qty Price Total Annotated Criminal Laws of Texas (bound) copies ea. 25 or more copies ea. Code of Criminal Procedure (spiral) Penal Code (spiral) Texas Crimes Quick Laws 2003 (laminated chart) 5.00 Legislative Update 2003 SOLD OUT MANUALS Qty Price Total NEW! Investigating & Prosecuting Child Sexual Abuse (2004) Prosecuting & Investigating DWI (2003) Warrantless Search & Seizure (2002) Charging Manual ( ) Binder only or disk only (circle one) Both binder and disk Guide to Asset Seizure & Forfeiture (2003) Prosecutor Trial Notebook (24 laminated sheets) (2002) Capital Writs (2002) Predicate Questions Manual (2002) The Perfect Plea (2002) Texas Prosecutorial Ethics (2001) State s Appellate Manual, 2nd ed. (2001) Future Danger (2001) Texas Gangs: The Legal Handbook (2000) REDUCED PRICE! Warrants Manual for Arrest, Search & Seizure (2002) Investigator s Desk Reference Manual (2003) PROSECUTOR OFFICE SUPPLIES Qty Price Total Guide to Report Writing (2001) 5.00 Grand Jury Handbook (2003 update) 3.50 File folders (with printed outline for case notes; 100 per box, 300 per case) per box (legal) manilla: letter or legal (circle one) per box (letter) blue or green: legal only (circle one) per box Victim brochures (generic or personalized) call for prices Directory of Texas Prosecutors & Staff ( ) Shipping 1 item: $8 4 5 items: $ items: call for cost 2 3 items: $ items: $20 Tax (include shipping; 8.25%; write exempt if tax-exempt) TOTAL

3 TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION 1210 Nueces St., Austin, TX / fax: 512/ OFFICERS President: Bruce Isaacks, Denton Chairman of the Board: Jaime Esparza, El Paso President-Elect: Yolanda De Leon, Brownsville Secretary/Treasurer: Tim Cole, Montague DIRECTORS Ken Sparks, Columbus Galen Ray Sumrow, Rockwall Bill Turner, Bryan Kathy Braddock, Houston William P. Smith, Silverton Michael L. Fostel, Kermit Mark Edwards, Sweetwater Jose Homero Ramirez, Laredo Steve Reis, Bay City Bob Gage, Fairfield Jana A. Jones, Decatur John Bradley, Georgetown Investigator Section Chairperson: Melissa Hightower, Georgetown Key Personnel Section Chairperson: Karen Nelson, Seguin BOARD REPRESENTATIVES G. Dwayne Pruitt Henry Garza Rene A. Guerra Barry Macha Ray Rike Casey Garrett STAFF Robert Kepple, Executive Director Diane Burch Beckham, Senior Staff Counsel Lindsey Roberts,Training Director Shannon Edmonds, Director of Government Relations Ben Whittenburg, Executive Sales Manager Alison Holland, Research Attorney Marnie Parker, Financial Officer Judy Bellsnyder, Meeting Planner John Brown, Director of Operations Sarah Wolf, Communications Director Gail Ferguson, Administrative Assistant Lara Brumen, Database Manager & Meeting Planning Assistant Eric Rhine and Markus Kypreos, Law Clerks Andrea Janda and John McMillin, Interns Published bimonthly by TDCAA through legislative appropriation to the Texas Court of Criminal Appeals. Subscriptions are free to Texas prosecutors, investigators, prosecutor office personnel, and other TDCAA members. Articles not otherwise copyrighted may be reprinted with attribution as follows: Reprinted from The TEXAS PROSECUTOR with permission of the Texas District & County Attorneys Association. The editor encourages readers to share varying viewpoints on current topics of interest to TDCAA members. The views expressed are solely those of the authors. We retain the right to edit material. Sarah Wolf, Editor/Photographer Diane Beckham, Senior Staff Counsel Copyright 2004, all rights reserved. TABLE OF CONTENTS 4 President s Report Stopping the cycle of violence By Bruce Isaacks, Criminal District Attorney in Denton 5 Newsworthy 6 Executive Director s Report Toward a more efficient criminal justice system By Rob Kepple, TDCAA Executive Director 8 Investigation and Prosecution of Drug Offenses photos 11 Civil Law Seminar photos 17 The Agony Column Order in the (county) court please! By Rick Miller, County Attorney in Belton 19 Focus on A guide to petitions for nondisclosure of deferred adjudication criminal records By Larissa T. Roder, Assistant District Attorney in Dallas 25 Focus on The Susan Wright trial By Murray Newman, Assistant District Attorney in Houston 28 Focus on Searching for the truth By Jim English, Criminal District Attorney in Hereford, and Jeremy Fowler, Assistant District Attorney in Hereford 30 Calling entries for TDCAA Investigator Section scholarship 31 The new rules of disciplinary procedure By Scott A. Durfee, Assistant District Attorney in Houston 33 Answering a collateral estoppel challenge in a criminal trial By Rosa Theofanis, Assistant County Attorney in Austin 36 Crimes Against Kids Conference agenda and registration form 39 Prosecutor Trial Skills agenda and registration form 41 Negative results for fingerprint evidence and testimony Reprinted with permission from the American Prosecutors Research Institute 43 Dr. John s Corner Research tidbits By Dr. John Krampitz, UT Houston School of Public Health in Austin 44 Focus on First among equals: first assistant district attorneys By Betty Marshall, Assistant State Prosecuting Attorney in Austin 49 Focus on If you re gonna prosecute the devil, you ve gotta go to hell to get the witnesses! By Sally Ring, Assistant District Attorney in Houston 55 Sentencing Tips How many judges does it take to negotiate a plea? None. By John Bradley, District Attorney in Georgetown 58 Focus on Keeping a conviction secure Reprinted with permission from the American Prosecutors Research Institute 60 As the Judges Saw It By Betty Marshall, Assistant State Prosecuting Attorney in Austin PAGE 3

4 THE TEXAS PROSECUTOR the President s Report By Bruce Isaaks District Attorney in Denton Stopping the cycle of violence Every district attorney s office faces the question of how aggressive it will be in prosecuting domestic violence cases where the abused family member is unavailable to testify or recants earlier claims of abuse. While some offices may require the testimony of a victim to take a case to trial, I believe a growing number of district attorney s offices are now taking the approach Denton County began in 1995, a no drop policy on domestic violence cases that does not rely on the victim s participation at trial. These are not easy cases to try, but it is important we try them because we do not want to be participants in the cycle of violence that exists in too many homes. Today, we know a great deal about the dynamics of the abusive relationship and the many pressures exerted upon domestic abuse victims to recant statements made at the time of abuse or to become unavailable to testify. If we allow these pressures to affect our prosecutorial decisions, then we have done nothing to stop the violence and may even be condoning what takes place in abusive homes. Plus, we now know that the cycle of abuse is likely to continue beyond that home as many children who live in an abusive environment grow up and become abusers themselves. Of course, any no-drop policy in domestic violence cases must be tempered with practical prosecutorial concerns. District attorney offices should not go to court with cases they cannot prove, but a true no-drop policy includes creating an environment where the office can win at trial without the victim s participation. For example, our Family Violence Division, aided by grants under the Violence Against Women Act and Victim of Crime Act, routinely trains law enforcement, medical personnel, and others on how to observe, record, and collect evidence needed at trial. The preservation of physical evidence may become even more important in view of the recent U.S. Supreme Court decision in Crawford v. Washington. The Crawford holding may serve to undermine our ability to admit into evidence statements made by abuse victims at the time of abuse if that witness is unavailable at trial and not subject to cross-examination. What bears watching is how Texas appellate courts, particularly the Court of Criminal Appeals, will interpret the word testimonial because it is testimonial hearsay statements that are inadmissible under Crawford. Are excited utterances testimonial? How about statements for purposes of medical treatment? At the time of this writing, no Texas appellate court has applied Crawford to the facts of a case. (Editor s note: See the cover story for a discussion of Crawford s potential effects on prosecution.) The Crawford decision underscores the importance of another aspect of a strong no-drop domestic violence policy. Every effort must be made to ensure that victims will testify. Part of this effort is simply maintaining contact with victims who often have little or no support from family members. In Denton County, we have a grant-funded position for a full-time victim intervention specialist, an experienced, licensed counselor whose sole job is to assist family violence victims as they work with our office. If we lose contact with a victim or develop concerns about whether shewill testify, we send a letter explaining our no-drop policy and why it is in place. Despite our best efforts, we know PAGE 4

5 MAY/JUNE 2004 that in 65 to 70 percent of cases, the abused victim will not participate in the prosecution. And we know that if we do nothing, the cycle of violence will likely continue in that home. That s why in Denton County we have five attorneys, two investigators, one victim specialist, two support staff, one paid intern, and six unpaid interns working on family violence cases. In the past 12 months, more than 1,200 felony and misdemeanor cases have been filed in Denton County, and we plan to prosecute them all to the point of a plea agreement or a guilty verdict in court. The number of cases we will drop or dismiss because we simply do not have the evidence can probably be counted on two hands. At times, a no-drop policy on domestic violence cases can be frustrating. Victims who no longer want to prosecute get quite upset with us. Often, the state of the evidence is discouraging. Yet, we believe the policy is necessary to address the increase in the number of family violence incidents and the increase in the severity of violence taking place. Every county pursuing a no-drop policy should always remember that our aim in these cases is to protect family members, usually women who will not protect themselves, and their children, who cannot protect themselves. Newsworthy By The Prosecutor Staff TDCAA s 2004 training calendar Here are TDCAA s upcoming seminars. Online registration is available about three months prior to the seminar; brochures are mailed about the same time. Call 512/ for a faxed registration form or sign up online at Prosecuting Crimes Against Kids, May 10 14, 2004, at the Omni San Antonio (9821 Colonnade Blvd.); call 800/THE OMNI for reservations. See page 37 for a course agenda and registration form. Prosecutor Trial Skills Course with a track for new investigators, July 11 16, 2004, at the Doubletree North in Austin (6505 IH 35); call 512/ for reservations. See page 40 for a course agenda and registration form. Annual Criminal & Civil Law Update, September 22 24, 2004, in South Padre. Both the Radisson and Sheraton are full, so here s a list of other hotels, their rates, and their contact information: Holiday Inn: $80 for a single or double; 956/ Comfort Suites: $80 for a single or double: 956/ Travel Lodge: $59.95; 956/ Econo Lodge: $39 for a single, $49.99 for a double, $65.99 for a Jacuzzi queen, and $55.99 for a one-bedroom with kitchenette; 956/ Super 8: $59.95; 956/ SPI Microtel: $45; 956/ Ramada Limited: $59.95; 956/ Howard Johnson: $39; 956/ Padre South Condominiums: $70 for a single efficiency Quality Inn & Suites: $70; 956/ Bahia Mar Resort: $80 for a single or double; 956/ If you are interested in a house or condo, visit for information. And if you want to mark your calendar for 2005 s Annual, the dates are September in Corpus Christi, and the hotels are the Omni Bayfront and Marina and the Holiday Inn, though it s doubtful the hotels have set up our room block this early. Key Personnel Seminar, October 27 29, 2004, at the Omni San Antonio (9821 Colonnade Blvd.); call 800/THE OMNI for reservations. PAGE 5

6 THE TEXAS PROSECUTOR the Executive Director s Report One of our most precious commodities is court time. We have a limited number of days available for jury trials, so we need to make the most of them. That s where the brainchild of Ken Sparks, Colorado County Attorney, comes into play. Ken was faced with few court dates and a DPS chemist who was never there when needed, proposed what became law in Articles and of the CCP. These articles provide that, with the advance preparation of a certificate of analysis by lab chemist and a chain-of-custody affidavit from your cops (the forms are even included as part of the statutes), you can dispense with live witnesses on these usually uncontested issues. I see a contest brewing. I think it s possible that a well-prepared prosecutor can try a one-rock dope case in under five minutes identity, dope, money, venue, affidavits, rest. By Rob Kepple TDCAA Executive Director Toward a more efficient criminal justice system This legislative change has been the most popular so far. Thanks, Ken, for your work. Some new faces In November we will get you the final election results for the district and county attorneys across the state, but we have some new folks to welcome right now. Joe Ned Dean will serve as the Trinity County district attorney, while Kerry Lynn Roberts has been appointed as the Mills County Attorney to take over for the retiring Tommy Adams. Ramon Gallegos has been appointed as the Terry County and District Attorney for the retired G.D. Pruitt. Kristen Fouts is the new Stonewall County Attorney Pro-Tem. Enrique Garza is the new Jim Hogg County Attorney, and W. Deal Fair is the Live Oak County Attorney. Stephanie Stephens, an assistant district attorney in Nacodoches, has been appointed as the District Attorney for the 145th Judicial District. She replaces Ed Klein, who was recently appointed to the newly-created 420th Judicial District Court. Finally Matt Bingham has taken the reins as the Criminal District Attorney in Smith County. Welcome! The official meteorologist of TDCAA s Annual Conference Many of you know Lon Curtis, the former first assistant in the Bell County DA s office who retired to pursue his passion for the weather. You can see him now on KWTX-TV in Waco, bringing you a most accurate forecast. You may not have known that Lon is our official meteorologist for our annual conferences, which we tend to hold on the Texas gulf coast in the heart of hurricane season. You also may not have known that Lon is an expert when it comes to reconstructing weather conditions for a crime scene (something you may want to file away for future use). Now, turns out Lon has been published by the American Meteorological Society, which I am told is no small feat. Actually, my guess is that it wasn t so hard for Lon, because after trying to read his article, I think it still sounds likesomething a lawyer could easily write: "Midlevel Dry Intrusions as a Factor in Tornado Outbreaks Associated with Landfalling Tropical Cyclones from the Atlantic and Gulf of Mexico." Good work Lon, but I ll skip the article and you just let me know if one of those twisters is intruding on Padre this September PAGE 6

7 MAY/JUNE 2004 Yet another longevity pay update Good news. Looks like the start-up problems for H.B may be over. We received a call from the comptroller s office last week. They told us that the shortfall in the last quarter s check has been made up, and this quarter s check is fully funded and in the mail. They indicated that the fund looks stable and should fully fund the supplement to assistants in offices with felony jurisdiction in future quarters. So check with your auditor; if you haven t already gotten it, the state supplement should be coming your way soon. Picture this Texan in New York Williamson County, Texas, has a reputation for tough prosecutors, and the current DA, John Bradley, carries on that tradition. Now picture this: John, former legal counsel to the Texas Punishment Standards Commission (the outfit that proposed massive changes to the Texas Penal Code scheme back in the early 90s) has been summoned to testify before the New York Senate. The subject? Apparently, they want to ask John how to lighten up on drug offenders. (Seems some folks think that the New York punishment scheme is draconian and inflexible.) I don t know which is more interesting: that New York is seeking some enlightenment from Texas, or that they ve asked John to bring it. I want the video from that meeting. The challenges of rural prosecution Over dinner with John Hutchison, Hansford County Attorney, at the Hungry Cowboy in Spearman, I was reminded how difficult it is for folks in the more rural areas of Texas to get to Austin and other large Texas cities for seminars, TDCAA business, and legislative affairs. John posed a simple question: Name the six state capitals that are closer to the place we were sitting than Austin, Texas. (The answers are at the end of this column.) First, thanks to everyone who continues to serve the association, even though it s quite a haul to be involved. Second, you need to know that the association is committed to making our training more accessible with regional seminars and our resources more available through our web site and other electronic means. Advertising on the TDCAA web site We don t normally post them, but Mike Hartman, Scurry County Attorney, posted one recently on the user forum. It reads: For sale: cheap, barely used Intoxilyzer, last used prior to September Not needed now due to lack of willing participants. Answers to which state capitals are closer to Spearman than Austin: Topeka, Cheyenne, Lincoln, Denver, Santa Fe, and Oklahoma City (according to MapQuest). Newsworthy Dept. of Health request The Texas Department of Health is one of the responsible state agencies under the State Plan for Emergency Management. To help it address public health emergencies such as bioterrorism, natural epidemics, emergencies, and other disasters, the department requests that all attorneys submit contact information so the agency can quickly coordinate with the appropriate folks in case of a public health emergency. A form is available on page 10 of this newsletter, as well as in the Forms, Briefs, Et. Al., section of TDCAA s web site. Specialization in Civil Government Law? The State Bar Government Lawyers Section is seeking support for establishing a Texas Board Specialization for Civil Government Law. One of the first steps is obtaining 100 lawyers' signed statements of support. If you support creation of a Board Certification in Civil Government Law, please fill out the form on page 9, sign it, and fax it to Ann Diamond at the Tarrant County CDA s office at 817/ Continued on page 9 PAGE 7

8 THE TEXAS PROSECUTOR Investigation and Prosecution of Drug Offenses seminar photos More than 220 prosecutors, law enforcement officers, and drug task force members attended this seminar in Kerrville. Here are a few memories of the week. PAGE 8

9 MAY/JUNE 2004 Continued from page 7 PAGE 9

10 THE TEXAS PROSECUTOR Continued from page 9 Legal Preparedness for Public Health Emergencies As one of the responsible state agencies under the State Plan for Emergency Management, the Texas Department of Health (TDH) is committed to developing an integrated public health preparedness and response system to address public health emergencies such as bioterrorism, natural epidemics, emergencies, and other disasters. We realize that just as it is vital to pay attention to public health preparedness issues relating to health care, health care providers, and health care facilities, it is equally important to establish a legal public health preparedness network as part of that integrated public health preparedness and response system. In 2003, the Texas Department of Health s Office of General Counsel (OGC) began developing a list of attorney contacts for public health emergencies. With the attorney list, OGC will be able to quickly coordinate with the appropriate attorneys throughout Texas in the event of a public health emergency. In addition, OGC plans to use the list as a resource for activities such as planning educational opportunities for attorneys concerning public health preparedness, sharing written information on legal issues related to public health preparedness, and providing appropriate information on the legal public health preparedness website located at If you are or may be involved in your area s public health preparedness effort and have not already completed the form below, please take a few minutes to complete and fax it to Nancy Clinton, OGC, at 512/ You also may download the form from then it to If you have any questions, please contact Linda Wiegman, Deputy General Counsel, OGC, by telephone at 512/ extension 6966 or by at Attorney s name: Attorney s title: Organization s name: Mailing address: Business phone: Business Fax: Home or cell phone (optional): Business Expertise/role in a public health emergency: PAGE 10 Continued on page 54

11 MAY/JUNE 2004 Civil Law Seminar photos More than 105 prosecutors attended this year s seminar in Corpus Christi. Here are a few memories of the week. Civil Practitioner of the Year Scott Brumley, assistant county attorney in Amarillo, was presented with the Gerald Summerford Civil Practitioner of the Year Award at the Civil Law Seminar by Ray Rike, assistant criminal district attorney in Fort Worth and TDCAA Civil Committee member. Special thanks to Shannon Edmonds for taking these photos in Corpus Christi. PAGE 11

12 THE TEXAS PROSECUTOR Continued from front cover Crawford v. Washington According to her statement to the police, she was the one who directed Crawford to the victim s apartment immediately prior to the stabbing. 2 Neither Crawford nor the State called Sylvia to testify. Crawford had invoked the Washington marital privilege to keep his wife, Sylvia, from testifying against him at trial. 3 The trial court admitted Sylvia s statements on the grounds that they did not violate the marital privilege and were sufficiently reliable to alleviate the Confrontation Clause concerns under Ohio v. Roberts. 4 One of the statements was actually admitted on the basis it was against Sylvia s penal interest. 5 The intermediate court of appeals reversed the conviction, while the Washington Supreme Court reinstated it and concluded that the wife s statement was reliable because it interlocked with Crawford s own statements. 6 In Ohio v. Roberts, the Supreme Court had suggested that the indicia of reliability requirement to satisfy Sixth Amendment confrontation concerns could be met in either of two circumstances: (1) where the hearsay statement falls within a firmly rooted exception, or (2) where it is supported by a showing of particularized guarantees of trustworthiness. 7 Now, in Crawford, the Supreme Court concludes that it erred in Ohio v. Roberts in allowing a judicial PAGE 12 finding that out-of-court statements bear particularized guarantees of trustworthiness to substitute for the opportunity to cross-examine the witness. Thus, the admission at a criminal trial of a testimonial statement made by an unavailable witness violates the Sixth Amendment s Confrontation Clause unless the defendant has had a prior opportunity to cross-examine the witness. While the Court refuses to articulate a comprehensive definition of testimonial, it does suggest there is a core class of testimonial statements. In reversing, the Supreme Court concluded that the Ohio v. Roberts analysis strayed from the Confrontation Clause s original purpose. Historically, the principal evil to which the Confrontation Clause was directed was the use of ex parte examinations as evidence against the accused. 8 The focus of the Confrontation Clause is aimed at witnesses who bear testimony against the accused. While the term testimony generally refers to those individuals who testify, [a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. 9 Thus, these types of testimonial statements are the genre of out-of-court statement underlying the right of confrontation. While the Court refused to articulate a comprehensive definition of testimonial, it did suggest there is a core class of testimonial statements: affidavits, custodial examinations, prior testimony not subject to cross-examination, or similar pretrial statements that declarants would expect to be used prosecutorially. In other words, statements made in contemplation of a criminal prosecution and under circumstances that an objective witness would reasonably believe would be available at a later trial are testimonial. Moreover, the framers of the constitution would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. 10 Thus, where testimonial statements are involved, the Sixth Amendment requires that reliability be tested by more than some amorphous notion conjured up under the rules of evidence and based on a mere judicial determination. To be sure, the Clause s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. 11 Therefore, where testimonial hearsay is at issue, the Sixth Amendment

13 MAY/JUNE 2004 demands what the common law required: unavailability (necessity for its use) and a prior opportunity for crossexamination. In the alternative, the Supreme Court reiterated that, when the declarant appears for cross-examination at trial, the Confrontation Clause imposes no constraints at all on the use of prior testimonial statements. 12 Notwithstanding that Crawford dealt with the application of a state s promulgated declaration against penal interest as a hearsay exception, the opinion nonetheless makes references that could be construed to affect existing firmly rooted hearsay exceptions. Such exceptions as exited utterances, dying declarations, medical records, and child outcry may well become a victim of Crawford if classified as testimonial statements under the opinion. The bases for all these exceptions are well known. For example, the excited utterance exception is considered firmly rooted because such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation; therefore, the circumstances surrounding the making of the statement are trustworthy and crossexamination would be superfluous. 13 Likewise, both dying declarations and medical treatment exceptions to the hearsay rule are based on the belief that persons making such statements are highly unlikely to lie. 14 While child outcry may not be deemed a firmly rooted exception, the public policy behind the exception is almost tantamount to such classification. State and federal courts have identified numerous factors that make such hearsay statements reliable: spontaneity and consistent repetition; declarant s mental state; use of terminology unexpected of a child of similar age; and lack of motive to fabricate. 15 In any event, each of these exceptions may have been painted with the Crawford brush. Excited utterances 16 In White v. Illinois, 17 the victim had been sexually assaulted by White, a family friend, during a residential burglary. The babysitter asked the victim what happened, and she stated that White had put his mouth on her front part. The victim repeated her version of events 30 minutes later to her mother, and 45 minutes later she offered essentially the same story to the officer dispatched to the scene. Four hours after the initial outcry, the victim was interviewed first by the emergency room nurse and then by the doctor. On both occasions she provided an identical account of events as was told to the babysitter, her mother, and the officer. 18 The victim did not testify at trial. All of the statements were admitted via the excited utterance and medical treatment exceptions. The issue before the Supreme Court was whether the Confrontation Clause imposed, before a trial court admits testimony under the spontaneous declaration and medical records exceptions to the hearsay rule, a requirement that the prosecution produce the declarant at trial or that the declarant be unavailable. 19 In rejecting the unavailability rule, the Court noted that such a rule would do little to improve the accuracy of fact finding because a statement that qualifies for admission under a firmly rooted exception is so trustworthy that adversarial testing can be expected to add little to its reliability. 20 However, the Crawford Court concluded that statements taken by police officers in the course of interrogations [statements made by witnesses to law enforcement knowingly given in response to structured police questioning] are also testimonial. 21 The Court indicated that the Crawford holding cast doubt on its previous decision, at least to the extent that the questioning of the victim involved a police statement knowingly given in response to police questioning. The Court first pointed out that White did not address the question whether certain statements, because they were testimonial, had to be excluded even if the witness was unavailable. Nevertheless, it agreed that White arguably was in tension with the rule requiring a prior opportunity for crossexamination because it apparently involved a testimonial statement, i.e., the statement of a child-victim to the investigating police officer. 23 Thus, at least statements taken by police officers in the course of an investigation or interrogation, which in the past qualified as spontaneous declarations, may be excluded as testimonial statements resulting from structured police questioning. While the Court seems to indicate that the Crawford analysis would be Continued on page 14 PAGE 13

14 THE TEXAS PROSECUTOR Continued from page 13 applicable to all hearsay exceptions, notwithstanding that a particular exception is firmly rooted, it also hinted that dying declarations would most likely be exempt from this rationale because of the existence of authority for admitting dying declarations that would clearly be considered testimonial in nature. However, the Court does not decide this issue but concludes that, if there is an exemption for testimonial dying declarations predicated on historical grounds, it is unique. 24 Statements made for purposes of medical diagnosis or treatment 25 The exception for a statement made for purposes of medical diagnosis or treatment has long been considered firmly rooted. 26 The question left open by Crawford is whether the Confrontation Clause will exclude such a statement because it is testimonial in nature. The basis of such an argument might stem from the circumstances where, because of a nexus or linkage to law enforcement, it can be proffered that the victim s statement was made to a government officer via interrogation or that the statement was made under circumstances that would lead a witness to reasonably conclude the statement would be available for use at trial, i.e., in contemplation of criminal litigation. Generally, such a statement should be admissible in the face of a Confrontation Clause challenge where a family member has taken the victim to be examined because of a complaint. There are situations where the young victim might ini- PAGE 14 tially be taken to the family pediatrician. There the doctor suspects sexual abuse and the child is referred to a specialist in Developmental Services and Adolescent Medicine where the police are then contacted. Finally, the police have the child interviewed by a CPS forensic interviewer, and the child describes what happened and who did it. In the past, Texas courts have allowed non-physicians to testify under the medical diagnosis and treatment exception. 27 Whether the courts will find a connection to law enforcement sufficient to be considered interrogation as defined in Crawford or that such statement was nonetheless made in contemplation of criminal litigation is pure speculation. But this is the type of situation where the defense will attempt to craft a confrontation challenge by taking a statement that fits within the firmly rooted hearsay exception and converting it into a testimonial statement requiring unavailability and prior cross-examination. Child outcry 28 Article allows evidence of statements by a child-victim in settings outside the traditional in-court procedure under limited circumstances. Article , 1 explicitly states that the article applies to a proceeding if the court determines that a child would be unavailable to testify in the presence of the defendant. Section 2(a) then allows a pre-indictment oral statement of the child to be admitted if the court makes specified determinations. As a preliminary matter, the statute requires the trial court to determine that the child is unavailable before the statement obtained out of court may be used. Article of the Texas Code of Criminal Procedure provides a hearsay exception for statements made by a child-abuse victim and is commonly known as the outcry exception. This article provides: Sec. 2(a) This article applies only to statements that describe the alleged offense that: (1) were made by the child [12 years of age or younger] against whom the offense was allegedly committed; and (2) were made to the first person, 18 years of or older, other than the defendant, to whom the child made a statement about the offense. Heretofore, both genres of statement were subject to a confrontation challenge under Ohio v. Roberts on the ground that the statement lacked the indicia of reliability required under the Sixth Amendment to be admissible. 29 Like the problem articulated concerning the medical diagnosis exception, if law enforcement were involved prior to taking the statement, there is always a chance that the circumstance surrounding the statement and those that preceded the statement will permit a court to conclude it was testimonial in nature. Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse a fact borne out time and again throughout a history with which the framers were keenly familiar. 30 As to the traditional outcry exception, Crawford should have no effect on outcry statements made to a family member, friend, or teacher. However,

15 MAY/JUNE 2004 once law enforcement gets involved with an eye toward prosecution and trial, subsequent statements made to the forensic interviewer, clinical social worker, play therapist, or licensed psychologist become more problematic, 31 especially where there was a police referral. Are these types of statements the functional equivalent of statements made to government officers, i.e., statements knowingly given in response to structured police questioning or statements made under circumstances that would lead an objective witness to believe that the statement would be available at trial? In any event, expect a Sixth Amendment challenge under Crawford. It is important to remember that the Supreme Court, as well as numerous state and federal courts, have already identified as public policy numerous factors that relate to why such hearsay statements by child-witnesses in sexual abuse cases are reliable. 32 Whether the Supreme Court will expand on the Crawford decision is anybody s guess. Retroactivity Because the Crawford Court overruled a portion of Ohio v. Roberts, there is a strong argument that the return to preexisting law is now a new constitutional rule. As a general proposition, new constitutional rules are not applied retroactively to cases that were finalized prior to a new Supreme Court holding. 33 The principle of finality within the criminal justice system weighs heavily against retroactive application of new constitutional law. In Teague v. Lane, 34 the Supreme Court articulated two exceptions to the general rule of non-retroactive application for new rules of criminal procedure. An exception that allows for retroactive application of a new rule applies only if the new rule places certain kinds of primary private individual conduct beyond the power of the criminal law making authority to proscribe, or permits the retroactive application of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. 35 The first exception under Teague does not apply to the circumstances of Crawford appeals, as the rule in Crawford does not divest the government of any criminal At least statements taken by police officers in the course of an investigation or interrogation, which in the past qualified as spontaneous declarations, may be excluded as testimonial statements resulting from structured police questioning. lawmaking authority. The second exception is the only one with any relevance. The argument that will be imposed is that Crawford created a new watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of the criminal proceeding. Despite Crawford being a new rule, watershed rules are so central to an accurate determination of guilt or innocence [it] unlikely that many such components of basic due process have yet to emerge. 36 According to the Supreme Court, this classification should be reserved for a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. 37 To qualify as a watershed rule, the new rule must improve the bedrock procedural elements essential to the fairness of a proceeding. 38 A perfect example of a watershed rule, according to the Supreme Court, would be Gideon v. Wainwright, 39 in which the Court held that counsel shall be provided in all criminal trial for serious offenses. The accuracy supposedly improved by the Crawford requirement is a better and more reliable quality of evidence tested by prior cross-examination. In contrast, the accuracy that is improved by the rule of Gideon involves the basic determination of the defendant s guilt or innocence. By requiring that all defendants charged with a serious crime be represented by counsel, Gideon protects the innocent from conviction. Crawford merely makes some evidence which has for 20 years been considered reliable under a previous analysis more reliable. It is highly unlikely that the Supreme Court would accept the defense contention that a new rule improving the credibility of testimony qualifies as a watershed rule. Conclusion Under Crawford, the prosecutor must now first decide whether the out-of- Continued on page 16 PAGE 15

16 THE TEXAS PROSECUTOR Continued from page 15 court statement is testimonial in nature as defined by the Supreme Court. If so, was there a prior opportunity for cross-examination and unavailability of the declarant, or was there a testifying declarant to defend or explain the declaration? If the out-of-court statement is not testimonial, the states are free to implement the analysis articulated under Ohio v. Roberts when faced with a confrontation challenge. Thus, the statement is admissible if is either a firmly rooted hearsay exception or supported by a showing of particularized guarantees of trustworthiness. Endnotes 1 Crawford v. Washington, Ct. 1354, 158 L.Ed.2d 177, 2004 WL (2004). 2 State v. Crawford, 147 Wash.2d 424, 427, 54 P.3d 656, 658 (2002). 3 Id. at 428, 54 P.3d at U.S. 56, 100 S.Ct. 2531,65 L.Ed.2d 597 (1980). 5 Wash. Rule Evid. 804(b)(3) states: AA statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant s position would not have made the statement unless the person believed it to be true. 6 State v. Crawford, 147 Wash.2d at 428, 440, 54 P.3d at 658, Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at Crawford v. Washington, 2004 WL at *7. 9 Id. at * Crawford v. Washington, 2004 WL at * Id. at *14. PAGE Id. at *13 n.9; see Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (l985)(the Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it). 13 Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). 14 d. at 820, 110 S.Ct. at Id. at 821, 110 S.Ct. at 3150; Edwards v. State, 107 S.W.3d 107 (Tex.App. Texarkana 2003, pet. ref d). 16 Tex.R.Evid. 803(2) U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). 18 Id. at , 112 S.Ct. at Id. at , 112 S.Ct. at Id. at , 112 S.Ct. at Crawford v. Washington, 2004 WL at * Id. at *12, n Id. 24 Crawford v.washington, 2004 WL at *11 n Tex.R.Evid. 803(4). 26 Edwards v. State, 107 S.W.3d at 115 (citing White v. Illinois, 502 U.S. at 356, 112 S.Ct. at 743). 27 Gregory v. State, 56 S.W.3d 164, (Tex.App. Houston [14th Dist.] 2001, pet. dism d); Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex.App. Beaumont 2000, pet. ref d)(allowing clinical social worker to testify under rule 803(4)); Gohring v. State, 967 S.W.2d 459, 661 (Tex.App. Beaumont 1998, no. pet.)(allowing play therapist, under supervision of licensed psychologist, to testify child was abused by father); Moyer v. State, 948 S.W.2d 525, (Tex.App. Fort Worth 1997, pet. ref d). 28 Tex. Code Crim. Proc. arts , 2(a) and , See Robinson v. State, 985 S.W.2d 584, 586 (Tex.App. Texarkana 1998, pet. ref d). 30 Crawford v. Washington, 2004 WL at * 11 n Cf. Cates v. State, 776 S.W.2d 170, 172 (Tex.Crim.App. 1989)(for Fifth Amendment and Miranda purposes, only when non-law enforcement personnel become agents of law enforcement and there is custodial interrogation is the civilian considered law enforcement). None of the personnel discussed herein is per se law enforcement or an agent of the police. 32 Idaho v.wright, 497 U.S. at , 110 S.Ct. at 3150; Morgan v. Foretich, 846 F.2d 941, 948 (4th Cir. 1988) (mental state of the declarant); State v. Robinson, 154 Ariz , 735 P2. 801, 811 (1987)(spontaneity and consistent repetition); State v. Kuone, 243 Kan. 218, P.2d 289, (1988); State v. Sorenson, 143 Wis.2d ,421 N.W.2d 77, 85 (1988)(use of terminology strange to a young child). 33 Lambrix v. Singletarv, 520 U.S. 518, 527, 117 S.Ct. 1517, , 137 L.Ed.2d 771 (1997); Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (l986) (selection rule not applicable to cases on collateral review) U.S. 288, , 109 S.Ct. 1060, , 103 L.Ed. 334 (1989). 35 Id. 36 Id. at 313, 109 S.Ct. at O Dell v. Netherlands, 521 U.S. 151, 157, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997)(quoting Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993)). 38 Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 799 (1990) U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

17 MAY/JUNE 2004 THE AGONY COLUMN By Rick Miller County Attorney in Belton Order in the (county) court please! How to play nice with the commissioners court By golly, it s election time again and before you know it, there may very well be some new commissioners on your county court. It has been my experience that new commissioners have little idea of what a county attorney does. Likely they equate the bureaucratic setup with that of a city and presume that the county attorney is an employee of the commissioners court, available at their behest for this chore or that. And that makes it your chore to nicely disabuse them of that notion. As we are all aware, the authority of a county attorney is controlled by the Texas Constitution, Code of Criminal Procedure, Local Government Code, and Government Code, with some duties imposed by the Tax and Transportation Codes. However, most of these deal with criminal prosecutions or specific civil authority such as injunctions, delinquent construction assessments, collecting motor vehicle inventory taxes, etc. With respect to the county attorney s relationship with the commissioners court, there is not much guidance in the statutes. Chapter 45 of the Government Code allows a county to specifically define the duties of its county attorney, although few have exercised that option. An argument could probably be made that if a county has not statutorily expanded the duties of its county attorney, the county attorney would be legally prohibited from initiating or responding to civil actions, even with the blessing of the commissioners court. Section requires a county attorney to give a written legal opinion to any county official concerning his or her official duties. However, the actual relationship a county attorney has with his or her commissioners will rest with how the county attorney defines that role, and the manner in which that is done will dictate whether the relationship will be tranquil or chaotic. Because the com- missioners court controls the budget, it s a no-brainer as to which direction a county attorney should strive. A county attorney has an educational role. The first lesson to communicate is that the county attorney has the option to act as a lawyer for the commissioners court. Guynes v. Galveston County 1 established that elected prosecutors are charged primarily with enforcement of criminal statutes. It is not one of their prescribed legal duties to represent the county in its general legal business or the conduct of ordinary civil actions. Although the county attorney should be the court s legal arm as a government law specialist, the commissioners court has the power to hire private counsel to assist it or other officials in carrying out their responsibilities, so long as the statutory authority of the county or district attorney is not usurped. However, most county attorneys I know are willing to work with their commissioners court, and many are really up to speed on such legal issues as contracts, subdivision law, open records issues, and personnel law. I attend every commissioners court meeting and workshop in my county and make myself available as a sounding board on whatever legal issues may arise. Where a matter is beyond my expertise or its complexity exceeds my available time and resources, I inform the court of that fact and encourage the members to employ private counsel. In order to build a positive relationship with the court, here are some ideas Continued on page 18 PAGE 17

18 THE TEXAS PROSECUTOR Continued from page 17 that might be worth a try: Provide a periodic orientation of your department for the commissioners court. Let them meet and see your team in action to give them an understanding of what you do, the extent of your workflow, and the amount and nature of the resources needed to handle it. If you have cramped quarters or lack necessary equipment, it would certainly give the commissioners a visual image to complement your single-spaced, unillustrated budget request that outlines the urgent need. Make yourself available for researching and drafting the court s orders and resolutions. This will provide some assurance that the court will follow the law and avoid vagueness, surplusage, and other ills of badly drafted legislation. Regularly attend commissioners court meetings and workshops. By reviewing posted agendas, you can anticipate any legal issues that might arise and be able to give a timely heads up. In addition, you may be able to protect the court or a commissioner from political self-destruction through ill-timed foot-in-the-mouth comments. If you spot a problem, you can alert the court by urging a short recess before the damage is done. Open meetings are the order of the day, and you will earn your keep by providing tight, conservative interpretation of the law. Educate your commissioners on how to request a legal opinion from you. You are obligated to provide your court with well-researched, sound legal recommendations in as timely a manner as possible. Too often the need for an answer is immediate, and a county attorney has to resist the temptation to give an off-thecuff response. Ideally, a request for an opinion should be in writing and sufficient time given for researching the issue (an Attorney General s opinion may be called for). Your response should be written, a copy of which must be kept in your files in perpetuity under the Public Information Act. Make sure that the request for an opinion contains all of the facts, not just a biased version, including why the question was asked or what the requestor wants to do; too often the request may be colored and important details omitted to force a desired response. Insure that the commissioners court understands that it, not the county attorney, is responsible for formulating policy. Your job is to answer, Can we do it? It is not your role to answer the question, Should we do it? Maintain a good working relationship with the commissioners court, but be careful to not play favorites. An opinion provided to one commissioner should be shared with all. There can be no secret legal work for less than the entire court. Remember that the county attorney is not supposed to be an obstructionist; if possible, it is his or her duty to find a proper and legal way to make something the court wants to do happen. The county attorney is required to maintain the highest professional standards and must not get caught up in the treacherous informalities of a good ol boy atmosphere. Thus, there can be no involvement in political intrigues or the day-to-day activities of the commissioners court. The county attorney might consider encouraging the commissioners court to channel formal complaints and anticipated litigation against the county through his or her office. Immediate action may be necessary to investigate and evaluate the claim, secure records, advise officials not to discuss matters, and otherwise lay the groundwork for the county s insurance carrier to step in and handle the matter. A thorough, upfront investigation (i.e., gathering facts Commissioners may presume the county attorney is the employee of the commissioners court, making it your chore to nicely disabuse them of that notion. and interviewing participants) may head off extended litigation and save the county money, especially where delay may lead to lost information. If a lawsuit has been filed, the county attorney can act as a liaison with the insurance carrier. Certainly, no agreements can be made with plaintiff s counsel without consent of the commissioners court. Each of the commissioners must understand from the get-go that it is unbecoming, unprofessional, and downright tacky to attempt to inter- PAGE 18

19 MAY/JUNE 2004 cede with any prosecutor on behalf of a relative, friend, or constituent who has run afoul of the criminal justice system. The commissioner must understand that if he is not a party to the incident, it is none of his business. But tell him nicely that if approached, the commissioner can respond that the county attorney will not and cannot discuss a pending case with anyone except the defendant and/or the defendant s lawyer. Likewise, a pending criminal investigation against some person in the community is not an appropriate topic for briefing the commissioners court or any commissioner. Nothing upsets the electorate more than the mere perception that political influence can buy immunity or privileged treatment. Make it a habit to keep the commissioners and other county officials informed on events that impact their jobs. I routinely send them copies of new Attorney General opinions or cases that affect them and an explanation if the matter is legally complex. While the political environment in every county is unique and the county attorney may or may not be able to establish a good working relationship with the commissioners court, the above will at least help keep you out of the fray and, hopefully, above the noise. Endnote S.W.2d 861 (Tex. 1993) FOCUS ON By Larissa T. Roeder Assistant District Attorney in Dallas A guide to petitions for nondisclosure of deferred adjudication criminal records The following is an analysis of the procedures, benefits, limitations, and effects associated with the new law regarding petitions and orders of nondisclosure. For years, criminal defendants have incorrectly assumed that, when a criminal case is dismissed after completion of a deferred adjudication community supervision, all records related to that case will drop off the system. Many defense attorneys have similarly assumed that a case dismissed after completion of a deferred adjudication can be expunged. When faced with the realization that neither of these actions is authorized by law, defense attorneys and criminal constituents contacted their legislative representatives and loudly requested relief. During the 2001 legislative session, the governor vetoed a bill that would have authorized the expunction of deferred adjudication dismissal arrest records. 1 During the 2003 legislative session, the governor signed into law S.B. 1477, a compromise bill authorizing the nondisclosure but not the expunction of certain deferred adjudication record information. 2 The S.B compromise gives first-time offenders who have not been convicted of their crimes a means of having their arrest records hidden from public view without destroying law enforcement s ability to access that same criminal record. Effective Sept. 1, 2003, defendants who have successfully completed a deferred adjudication community supervision may, depending on the offense, petition the trial court to issue an order prohibiting public disclosure of the related criminal history information. 3 Under this provision, a defendant may be eligible to have his successfully completed deferred adjudication community supervision information removed from public record either: immediately upon dismissal of the proceedings after successful completion of deferred adjudication community supervision; 4 five years after dismissal of the proceedings after successful completion of Continued on page 20 PAGE 19

20 THE TEXAS PROSECUTOR Continued from page 19 deferred adjudication community supervision; 5 10 years after dismissal of the proceedings after successful completion of deferred adjudication community supervision; 6 or never. 7 Qualifications To be entitled to file a petition for nondisclosure, the defendant cannot be convicted of or placed on deferred adjudication community supervision for any offense during the applicable waiting period other than an offense under the Transportation Code punishable by fine only. 8 Similarly, a defendant is not entitled to file a petition for nondisclosure if he has ever been convicted of or placed on deferred adjudication for: (1) an offense requiring registration as a sex offender under Chapter 62; (2) an offense under Penal Code (aggravated kidnapping); (3) an offense under Penal Code sections (murder), (capital murder), (injury to a child, elderly, or disabled individual), (abandoning or endangering a child), (violation of a protective order or magistrate s order), or (stalking); or (4) any other offense involving family violence as defined by Family Code Because the exclusion under section (4) is based on the offense meeting the statutory definition of family violence, the family violence classification can be established at the hearing on the petition for nondisclosure in those cases where the trial court did not affirmatively enter a family violence PAGE 20 finding at the original hearing placing the defendant on deferred adjudication community supervision. 9 The benefit In general, orders of nondisclosure are intended to afford one-time offenders a means of giving public effect to the NFOG (no finding of guilt) resolution earned after successful completion of a deferred adjudication probation. A defendant who is the subject of an Order Prohibiting Disclosure may deny the occurrence of the related arrest and prosecution, unless the information is used against him in a subsequent criminal proceeding. 10 Once an order of nondisclosure is disseminated to law enforcement agencies, any record relating to the offense for which the defendant was arrested and placed on deferred adjudication community supervision should no longer be available to the public via a law enforcement criminal history public record search. The caveats An order of nondisclosure has no impact on a law enforcement agency s ability to retain and use criminal records or investigation files. Law enforcement agencies get to keep their records. An order prohibiting public disclosure is not an expunction and does not constitute an order to destroy the related investigation or prosecution files. Also, criminal justice agencies may disclose criminal history record information subject to an order of nondisclosure to other criminal justice agencies; noncriminal justice agencies authorized by federal or state statute or by executive order to receive criminal history record information; and the person who is the subject of the criminal history record information (the defendant). 11 The State Board for Educator Certification is an example of a noncriminal justice agency authorized to receive criminal history record information. 12 Thus, a defendant who files a petition for nondisclosure to clean up his criminal record before applying for a job as a teacher may not get the relief he seeks. The State Board of Educator Certification will still have access to records showing he was arrested for and pled guilty or nolo contendere to public lewdness, theft, drug possession, or any other offense. Other non-criminal justice agencies with access to criminal history records include: the Texas Alcohol and Beverage Commission, Banking Commissioner, Texas Department of Licensing and Regulation, Consumer Credit Commissioner, and Texas Racing Commission, just to name a few. 13 These agencies regulate such things as night clubs, bingo games, wrestling and boxing, pawnshops, racing, etc. 14 Additionally, a petition and order of nondisclosure is not available to persons who had their convictions set aside under Tex. Code Crim. Proc. Ann. art , 20 (Vernon Supp. 2004). The legislature s intent to exclude set aside judgments from being eligible for an order of nondisclosure is exemplified in the modifications to the S.B from introduction to enrollment. Under the enrolled version of S.B. 1477, the definition of deferred adjudication community supervision is restrictive and expressly provides: (f) For purposes of Subsection (d), a person is considered to have been placed

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