Texas Criminal First Amendment Action

Here’s a survey of what’s going on in Texas with regard to the First Amendment in criminal cases:

Texas Penal Code Section 33.021(b) (online solicitation by explicit communication) was held unconstitutional by the Texas Court of Criminal Appeals in Ex Parte Lo. In Ex Parte Chance the Court of Criminal Appeals granted relief on habeas to someone who hadn’t raised the unconstitutionality of the statute either in the trial court or on direct appeal. Concurring, Judge Cochran stated that the petitioner was actually innocent (not argued by the petitioner). Dissenting, Judge Keller suggested that the issues presented should have been briefed and more carefully considered.
Pending issues include whether a person convicted only of violating a void statute is actually innocent, so that he is (if he went to prison) entitled to compensation for his wrongful conviction; and whether a 33.021(b) conviction should be reversed on direct appeal where the unconstitutionality of the statute was not raised in the trial court.I have the former issue (innocence) in two article 11.07 postconviction writs, out of Montgomery County and Harris County. The State has agreed to relief, and agreed to innocence. We’ll see what the Court of Criminal Appeals does.Nic Hughes of the Harris County PD’s Office and I have won the latter issue (unconstitutionality raised for the first time on direct appeal after the statute has been invalidated in another case) in intermediate courts of appeals (Schuster in the First, and Sanders in the Sixth, respectively). Gerald Bourque of the Woodlands has it before the Court of Criminal Appeals in Smith v. State. Argument will probably be this fall; I’ll watch and report back.

Texas Penal Code Section 33.021(c) (online solicitation, but not really) has been upheld by various intermediate courts of appeals, but the challenge has not yet reached the Court of Criminal Appeals. Various cases are pending in trial courts, and Butch Bradt of Houston has petitioned the Court of Criminal Appeals for discretionary review in Ex Parte Victorick out of the Beaumont Court of Appeals. If that is denied, I have several pretrial writs pending on the issue in Montgomery County and Austin County; I expect that we’ll have to take them up to the CCA.

Section 36.03 of the Texas Penal Code (Coercion of a Public Servant) has been challenged by habeas (PDF) in Rick Perry’s case. The statute is as stinky as can be—”coercion” includes a threat “to expose a person to hatred, contempt, or ridicule,” so if you threaten to make fun of your congresswoman if she doesn’t vote the way you want you are committing a crime—and I don’t think it’s going to stand up to David Botsford’s attack in the Perry case. Whether it dies as written (because of stinkiness) or as applied is, I think, the open question.1

Texas Penal Code Section 21.15 (Improper Photography (taking pictures)) is under challenge in the Court of Criminal Appeals in Ex Parte Thompson. I watched the arguments in May. We should see an opinion this fall. If the statute is held unconstitutional, then all of Section 21.15 (including the publishing pictures portion) goes down. If the statute is upheld (for example, because of the State’s silly argument that everyone appearing in public “consents” to being photographed), then…

Texas Penal Code Section 21.15 (Improper Photography (publishing pictures)) is still vulnerable to First Amendment attack. I have a pretrial habeas on hold in the 208th District Court; if the petitioner wins Ex Parte Thompson, we win. If the petitioner loses Ex Parte Thompson, Judge Collins gets to rule on my writ and the loser gets to appeal.

Texas Penal Code Section 33.07(a) (Online Impersonation (using the name of another person online to harm him)) is not being defended by the Harris County DA’s Office. I’ve filed two pretrial writs attacking that statute, and the State has dismissed the prosecutions in both cases, to refile under two other statutes. I’m hoping someone will bring me in on a case in a county where the DA is interested in defending the constitutionality of penal statutes.

In one case the State went from Online Impersonation to Fraudulent Use or Possession of Identifying Information under Texas Penal Code Section 32.51. That statute forbids “using” someone’s name with the intent to “harm” him; the terms in quotes are not narrowly defined, so if I call you by name and insult or embarrass you (“harming” you) I am committing a felony. I filed a writ in the 177th District Court attacking this statute; Judge Patrick foolishly denied relief,2 and I filed notice of appeal. I’ve also filed writs in other courts challenging the constitutionality of the Fraudulent Use or Possession of Identifying Information statute. I’ll keep you posted.

In another case the State went from Texas Penal Code Section 33.07(a) (a felony) to Section 33.07(b) (Online Impersonation (sending an email or similar communication using someone else’s name to trick someone and harm someone else), a misdemeanor). They have some pleading problems, but if they are able to sort those out we’ll file a writ and it’ll go up on appeal.

In Ector County (Odessa, Texas) I have filed a pretrial writ challenging the constitutionality of Texas Penal Code Section 21.12(a)(3) (Improper Relationship Between Educator and Student), which incorporates Section 33.021. Among other arguments, the incorporation of an unconstitutional statute invalidates Section 21.12(a)(3).


  1. As an aside, while everyone else seems to agree that Perry is charged with two felonies, Count II looks like a misdemeanor accusation to me—coercion of a public servant is a felony only if the coercion is a threat to commit a felony, and the State has neither alleged that the coercion was a threat to commit a felony, nor alleged the coercion in terms that would put a defendant on notice that the State believes it to be a felony…

    threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney. 

  2. Oops! Felony! 

Posted in Uncategorized | Leave a comment

The Psychology of Expensive Paper

I use 28-pound printer paper for my pleadings. Have done for years. Judges and prosecutors often notice the paper: it’s heavy, stiff, and smooth. It also costs almost four times times as much as cheap paper (2.3 cents, vs. 0.64 cents per page), which can add up; my justification for using it has been that the things I’m filing with the court are important, so they should look and feel important (I put some effort and money into typography as well).

Yesterday Sarah “Bennett’s Former Brain” Wood sent me a link to a Psychology Today post that supports that justification:

New research…shows that the weight, texture, and hardness of the things we touch are, in fact, unconsciously factored into our decisions about things that have nothing to do with what we are touching. Potentially, every decision we make.

* * * * *

[W]hen we hold something heavy, we actually see seriousness and importance in people and issues that we might not otherwise.

* * * * *

As with weight and texture, hardness exerts an influence on our perceptions and behavior. People who had earlier examined a hard piece of wood later judged an employee interacting with his boss as more rigid and strict than did people who had first examined a soft blanket.

The bad news for Bennett’s pleadings, though:

In another study, feeling roughness led participants to negotiate poorly, offering their counterparts better deals than people who’d held smooth things did—because they saw the bargaining task as more difficult.

I may have to start printing prosecutors’ copies of my motions on sandpaper. Judges will still be getting the good stuff.

Posted in Uncategorized | 4 Comments

Victimocracy Because Reasons

In There’s No “Ick” in Victim, in which she lauds victims for speaking up, Brooklyn lawyer1 C.A. Goldberg turns her truly dizzying intellect my way:

Then you have the George Wills and Mark Bennetts of the world who argue that society is victimized by victimhood. The former famously claimed that victims revel in their victimness and that “victimhood” is a “coveted status that confers privilege,” and results in the “proliferation” of victims.

In a post called “Victimocracy is for Sociopaths,” Mark Bennett, a criminal defense attorney and blogger in Texas, growls at the “ascendancy of victimocracy, in which victimhood is esteemed above merit, and victims are given special authority to determine the course of the state.  He accuses many victims of “feigning” it.  He flaccidly stabs at some blurry claim that self-identifying victims comprise much of the purported four percent of sociopaths, revealing himself to be the one person in America gullible enough to drink Martha Stout’s pop psychology Kool-Aid.  “The more power we give victims, the more power we give sociopaths,” he says.

Attitudes like those of the grandfather, the blogger, Wills, and Bennett, shame not just the crimes, but also try to corrode any dignity the victim may have in self-identifying as such, creating false categories that attempt to separate out the “true” victims from the “feigning” ones.  (Anybody else hearing the echoes of Todd Akin here and his marble mouthing about “legitimate” rape?)  These people take offense to persons stepping up and saying, “Hey, I was harmed,” acting as though the V-word itself is a diminishing resource, conservation of which they must personally defend. And so what do they do?  They engage in ad hominem attacks to discredit the victim:  she was complicit in it, is lying, doing it for the attention, is a sociopath.  It’s as if some defense attorneys, perhaps as a group the most vocal about they would call “victomania,” can’t zealously represent their clients while respecting the “victim” concept.

Here’s the post she’s referring to, Victimocracy is For Sociopaths.2 I won’t rehash the argument, but you’ll see that it’s not what Goldberg wishes it to be.

Because some victims bravely speak up,3 Goldberg wants us not to question whether victims are victims.

The problem is that, whether sociopaths are four percent of the population or one percent or less, they will feign victimhood, using our solicitousness toward victims—the solicitousness modeled by Goldberg in her post—to get away with creating more actual victims. By feigning victimhood, the sociopaths (who, because their “victimhood” is planned and scripted, are more willing than real victims to present themselves as victims) also harm the actual victims

The solution is nothing more than a sensible skepticism. Opposing skepticism is natural—nothing is more laudable than protecting the weak, and we want to believe that those who present themselves as needing our help in fact do—but nobody’s life is improved by credulity.


  1. And cousin of my officemate Jay Cohen! 

  2. For which I’ve already taken an undeserved ration of shit, which put me off my blogging feed. Other posts about victimocracy in action: Honoring the Dead with Destruction?; Happy Victims’ Week; Revenge Porn and “Rape Culture” Culture

  3. I doubt neither the bravery often required for an actual victim to come out as a victim, nor the societal value in doing so. 

Posted in Uncategorized | 1 Comment

Where Improv and Lawyering Meet

I’ve started taking improvisational theater classes again, now at The Station Theater, about halfway between my house and my downtown office. (I took classes at ComedySportz and at Bay Area Theater Sports several years ago, but neither theater is as convenient as The Station.) One of the perks of taking classes at The Station is free admission to shows at the theater. So I’ll be seeing, as well as doing more improv.

Last night Jen and I went to the show by Nice Astronaut, a visiting troupe from Austin. At the door, I told the guy taking money that I was a student (saving me $6, cheap bastard) and introduced myself. “I know that name,” he said, “I’ve read your blog for years.”

Small world. A little birthday present from the universe.

But wait.

When we went in to choose our seats, a familiar-looking man came up to me. “Mark, I’m Brian Drake.” Brian has been a blog reader and a correspondent of mine for many years. It was a treat seeing him in this context and meeting his girlfriend, who were also there for the show.

My old friend and fellow criminal-defense lawyer Chuck Stanfield was also there, but that was unsurprising, since he is also taking classes there.

Houston is a small enough town that I can rarely go anywhere without running into someone I know. But it’s especially cool that these two worlds—law and improv—intersect. I like it that readers of this blog also being fans and students of improv, which I have found to be invaluable training for lawyering (several of my jury selection rules come out of improv) and for life.

Posted in Uncategorized | 1 Comment

Stupid Lawyer-Email Disclaimer

I noticed this at the bottom of an email from a lawyer on a First Amendment civil case (he’s suing, I’m defending):

NOTICE OF DISCLAIMERS & CONTRACTUAL AGREEMENT NOT TO REMOVE DISCLAIMERS:

This communication and any files or attachments transmitted with it are confidential, may be legally privileged, and are intended solely for the use of the individual or entity to which they are addressed. Because this type of communication may not be secure, can be made spontaneously, and/or is frequently treated informally, I do not accept any responsibility or duty (other than that owned in the attorney-client relationship) for the contents of such communication. Simply, you are put on notice that I do not guarantee that this communication has any accuracy whatsoever;  being on such notice and for the consideration stated below, you contractually agree that I am not liable for any damage connected with this communication whether it is actual, contractual, compensatory, restitutionary, punitive, imaginary, etc. Make a formal request in writing via certified mail to the above address if this communication needs to be verified. Please notify me immediately if you have received this communication by mistake and delete it from your system. If you are not the intended recipient you are notified that altering, disclosing, copying, distributing, or taking any action in reliance on the contents of this communication is strictly prohibited and may be a criminal offense. If you are the intended recipient or receive this communication intentionally by the intended recipient, subject to Texas Rule of Evidence (including rule 408) you are granted express consent to disclose, copy, and/or distribute this communication. In return, you agree to not alter it, for example, by removing any of these disclaimers. In violation thereof, you agree to (1) be personally liable for a minimal of $15,000 in liquidated damages, reasonable attorney fees, and court costs in collecting these damages; and (2) Texas being the appropriate jurisdiction, that its laws prevail, and Harris County being the appropriate venue. The Internal Revenue Service rules require that I advise you that the tax advice, if any, contained in this message was not intended or written to be used by you, and cannot be used by you, for the purposes of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to an other party any transaction or matter addressed herein.

Pretentious civil-lawyer stupidity makes my brain hurt.

(See also.)

Posted in Uncategorized | 15 Comments

Programming Note

The original version of this post included two lawyers who had cried “victim.” I identified neither; only a very small group (six people) knew who both were; those six already knew my opinion.

While I had not identified him and had explicitly disclaimed calling him a sociopath (he has mental-health problems, but they undisputably do not include a lack of conscience), one of them recognized himself and incorrectly concluded that I was calling him a sociopath. When he nagged me about it, in the interest of peace I very reluctantly took the unprecedented step of removing the reference to him—the other example of victim-stance behavior was sufficient.

Unfortunately, he took my gesture of peace as a sign of weakness, and began publicly demanding a public apology (after privately threatening violence, motherfucking me, and frightening my office staff). He then also appointed himself defender of the other lawyer’s honor. In paroxysms of impotent rage he lashed out on Twitter and in comments here.

I removed his comments here because I didn’t think his name needed to be connected to this post; I have since vacillated on that, and on whether to restore the original text. Republishing this lawyer’s words is the worst thing that I can imagine doing to him—sometimes people sabotage themselves, often without knowing it; it’s not my job to help them.

Instead I’ve cut off contact with him, following Rule One. I have blocked his Twitter account and killfiled his emails—extreme and rare action that I only take for those who are a persistent net negative in my life.

If he continues to insist on injecting himself into my existence, I may have to find a different tack.

Posted in Uncategorized | 2 Comments

Victimocracy is for Sociopaths

After reading Martha Stout’s 2006 The Sociopath Next Door recently I’ve been thinking a great deal about sociopaths. Stout contends that four percent of the U.S. population are sociopaths, people without conscience, which Stout describes as “an intervening sense of obligation based in our emotional attachment to others.” Here‘s a snippet from Stout’s book describing some of the positions that sociopaths might enjoy, including this:

But you do enjoy jobs that afford you a certain undersupervised control over a few individuals or small groups, preferably people and groups who are relatively helpless or in some way vulnerable.  You are a teacher or a psychotherapist, a divorce lawyer or a high school coach.  Or maybe you are a consultant of some kind, a broker or a gallery owner or a human services director.  Or maybe you do not have a paid position and are instead the president of your condominium association, or a volunteer hospital worker, or a parent.  Whatever your job, you manipulate and bully the people who are under your thumb, as often and as outrageously as you can without getting fired or held accountable.  You do this for its own sake, even when it serves no purpose except to give you a thrill.  Making people jump means you have power – or this is the way you see it – and bullying provides you with an adrenaline rush.  It is fun.

Could this describe a misdemeanor judge you know? A prosecutor? If you believe that four of every ninety-nine people around you are sociopaths, you start seeing signs of sociopathy everywhere.

The hallmark of a sociopath, says Stout, is feigned victimhood. “The most reliable sign, the most universal behavior of unscrupulous people is not directed, as one might imagine, at our fearfulness. It is, perversely, an appeal to our sympathy.”

I have noted before the ascendancy of victimocracy, in which victimhood is esteemed even above merit and victims are given special authority to determine the course of the state. I was reminded of the victimocracy recently by communications by a member of the board of a criminal-defense lawyers’ association.

A member of the board did things that didn’t serve the interests of the organization. Other members called her out; the criticism was not gentle, but it was fair. The person criticized went into victim mode: she had been attacked, insulted, disrespected. She inaccurately described things that others had said to make them seem like attacks. She described the criticism as “bullying.” She had “never been so insulted” as by the criticism.

Why would this person—this criminal-defense lawyer communicating with other criminal-defense lawyers—cry “victim”? Because she thinks it’ll work? She’ll be pitied, her transgressions will be ignored, she’ll get their way?

The pity play or attempt to appeal to the sympathy of others was also addressed in research conducted by the Minnesota Department of Corrections and The Hazelden Foundation (2002). There, researchers concluded that criminal thinkers most often attempt to control others by portraying themselves as a victim, turning to fear tactics only when the victim stance fails to get them what they want.

The act of eliciting pity from another unequivocally makes the elicitor something to be pitied, a victim, per se. It is human nature to aid the pitied. Hence, the pity play, or victim stance, stands to get the Sociopath what he or she wants easily and without being found out as a bad guy. This is manipulation.

Your Conscience, the Sociopath’s Weapon of Choice, Psychology Today.

I’m not saying that this lawyer is a sociopath—not everyone who takes a victim stance is a sociopath—but her play for pity had me reflecting on how, with our solicitude for the feelings of victims, we have created an amiable playground for sociopaths.

We criminal-defense lawyers are not generally aligned with victims. Our clients are usually getting screwed by victimocracy. If a pity play could work in the board of directors of a criminal-defense lawyers’ association, it could work anywhere. And anywhere a pity play works a sociopath will make a pity play.

The more power we give victims, the more power we give sociopaths. We don’t want to give sociopaths any more power than Texas voters already give them. But we can’t be pitiless—pity serves a valuable social function, and if we were pitiless, we’d be sociopaths ourselves.

So what’s the solution? I think it is to act like criminal-defense lawyers: be kind to real victims, but question the stories of those who claim to be victims. Like that of the board member wanting to be a victim, sociopaths’ stories won’t stand up to scrutiny.

[The original version of this post is here. Editing it to remove the mentally ill male lawyer who took a victim stance did not serve its purpose of creating peace in him. Instead, it validated his delusional feelings of persecution, and made him think he could force me to change the post to remove the female lawyer. So both posts remain.]

Posted in Uncategorized | 8 Comments

Another Bad Texas Statute

I had filed a pretrial writ of habeas corpus challenging Texas’s Online Impersonation statute on First Amendment grounds. The prosecutor agreed with me off the record, dismissed the case, and instead filed a (less serious) Fraudulent Use of Identifying Information charge. Also, the Harris County DA’s Office flagged the Online Impersonation statute in its charge bank as “possibly unconstitutional.”

What is wrong with these people? Doesn’t Devon Anderson have an obligation to defend Texas’s penal statutes against constitutional attacks? Do I have to notify the Attorney General to get some opposition?

It looks as though I’ll have to go to some other county to get an appealable opinion upholding or striking the Online Impersonation statute.

But the prosecutor’s refiling the charge as Fraudulent Use of Identifying Information had me looking at that statute with a critical First Amendment eye:

A person commits an offense if the person … uses identifying information of another person without the other person’s consent and with intent to harm … another.

“Use” is not defined.

“Identifying information” means information that alone or in conjunction with other information identifies an individual, including an individual’s:
(A) name, social security number, date of birth, and government-issued identification number;
(B) unique biometric data, including the individual’s fingerprint, voice print, and retina or iris image;
(C) unique electronic identification number, address, and routing code, financial institution account number; and
(D) telecommunication identifying information or access device.

“Harm” is defined as “anything reasonably regarded as loss, disadvantage, or injury.”

So if I use—by writing—a person’s identifying information—his name—without his consent with the intent to harm—by embarrassing—him, I commit a felony in Texas.

Hmm. That can’t possibly be right.

The first writ of habeas corpus will be filed tomorrow in Harris County, followed next week by one in Fort Bend County. I’m also looking for online impersonation cases in other counties to file writs on. Some prosecutor somewhere has got to take the bait.

Posted in Uncategorized | 1 Comment

Karenev Starts to Crumble

Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.

Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).

The State argued (as in this hypothetical) that the Court of Criminal Appeals’ decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.

That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev—a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: “the rationale for the Karenev rule—the presumption that a statute is constitutional—does not apply to this case.” Because Section 33.021(b) had been held unconstitutional before Mr. Schuster’s appeal, Mr. Schuster could raise the unconstitutionality on appeal.

The Court of Criminal Appeals invented its fundamental holding in Karenev—that the right to challenge the constitutionality of a statute could be forfeited—from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenev‘s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception—the best they could do with stare decisis.

But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content—statutes like Texas’s improper-photography statute, its online-impersonation statute, and the balance of Texas’s online-solicitation statute.

Posted in Uncategorized | 3 Comments

Sacred Duty [Updated]

I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I’ve tried have almost universally been happy afterwards. Clients whose cases I’ve pled are often unhappy afterwards.

The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system’s default condition) by the lack of a meaningful plea offer, and—if he loses—didn’t get the result he hoped for.

So why is the trial client happier than the plea client?

I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.

Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don’t fight. Not, at least, in any way that the client can see.

But this thing for which our clients thank us, win or lose—showing them that there is someone who will fight for them when they cannot fight for themselves—is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.

[Update: Pope Francis has reminded me that part of this sacred duty—and surely a reason that the client is grateful for the fight—is that we fight for those who have done wrong.]

Posted in Uncategorized | 6 Comments