The Texas Prosecutor, July-August 2017, Volume 47, No. 4

The Annual Update is heading to San Antonio!

Our annual conference in September (this year it’s September 20–22) has grown to a 1,000-person event in the last five years. Our challenge has been to find convention space that can accommodate our crowd—and on a modest, government-funded budget. That has meant going to the coast in hurricane season, which has actually worked out pretty well for us. We have loved Galveston, South Padre Island, and Corpus Christi, and we have been washed away only twice in the last 20 years. But, when surveyed, y’all have said loud and clear that you’d like a shot at heading to San Antonio and Fort Worth every now and again for our Annual Criminal & Civil Law Update.
    I am thrilled that our meeting planning team has worked hard to get us on the San Antonio River Walk this year. Because we are meeting in the heart of a tourist district, we have made some changes in our social event schedule. The conference will be at the Henry B. Gonzalez Convention Center on the River Walk, which is within walking distance of our host hotels, restaurants, and entertainment (we will still have shuttle buses running from the hotels to the convention center so attendees can easily get from one to the other). The Texas District and County Attorneys Foundation will again sponsor the Wednesday night reception, which will be our main gathering. To make it even more special, we have rented out the entire Dave & Busters location on the River Walk, which promises food, drink, and a great time.  
    On Thursday, we are going to change it up: We will not seek to compete with the charm of the River Walk by holding a separate dinner reception in a convention center room or hotel ballroom. Instead, we have worked with a number of restaurants on the River Walk to serve as TDCAA “host” venues for Annual attendees to gather and socialize. These venues will offer various discounts for conference attendees, and you’ll be able to enjoy an evening with your fellow prosecutors and staff up and down this historic location.
    This is going to be a great training and a great gathering for our members! I look forward to seeing you there.

Hate crime enhancements
In this legislative session, the legislature passed HB 2908, which adds law enforcement officers to those protected by the Texas hate crimes statutes. There was a lot of debate about the efficacy and utility of doing that. Earlier this year we spent some time talking to a reporter who was doing a story on hate crimes and the statutes themselves. He ended up publishing a thoughtful piece on the subject, which you can read at www.texastribune.org/2017/04/12/hate-crime-law-results-few-convictions -and-lots-disappointment.  
    Because we were deeply involved in the passage of the Texas hate crimes statutes, I thought I would share a historical perspective. First, the issue raised by the reporter in the article is not new: Why don’t prosecutors use the hate crime enhancements more? After all, it is a pretty straightforward enhancement stat-ute. If the judge or jury makes a finding that the offense was committed because of bias or prejudice under Art. 42.014 of the Code of Criminal Procedure, the penalty is enhanced under §12.47 of the Penal Code. In addition, there are some mandatory prison and jail time conditions for those defendants getting community supervision in the Code of Criminal Procedure’s Art. 42A.501 (although that article contains some outdated language relating to the eligibility for probation for those who commit murder). So, is the dearth of hate-crime indictments and trials simply because proving a hate crime is too complicated and prosecutors aren’t educated about this enhancement?
    The short answer is no. When the James Byrd Jr. Hate Crimes Act was passed in 2001, there was a good public discussion at the legislature about the realistic ability of law enforcement and prosecutors to use the statute. The law does indeed offer some good enhancement potential; the best opportunities are when prosecutors have the chance to enhance a Class A misdemeanor assault to a felony, or an aggravated assault from a second-degree to a first-degree felony. But on the flip side, the legislature knew that: 1) police seldom have a suspect in hate crimes; 2) we will often not have sufficient evidence to prove the bias motivation beyond a reasonable doubt; or 3) we can already get a great punishment range under the current Penal Code scheme. So why pass a statute that won’t be used very often?
    Let’s look at it from our legislators’ perspective. Their job is to address problems, and they can do that only by passing legislation. Even if the penal law they pass won’t be used often for any number of reasons, the issue of hate crimes is real. If nothing more, they want to make a policy statement through our criminal laws. Indeed, a lead senator back in 2001 said just that: If nothing more, they will make a statement about the state’s view of hate crimes.  
    To that I say, “Fair enough.” I have come to see the Penal Code as a two-thirds/one-third deal. Two-thirds of the code belongs to prosecutors—that’s the stuff we use on a regular basis. One-third of the code belongs to the legislature, which uses it to make policy statements. As long as their one-third doesn’t mess up our two-thirds, that works fine. And in the case of the hate crimes statute, we have a valuable policy statement that sometimes we can actually use in some cases, so it is a win-win.
    Let’s turn back to HB 2908. This bill was motivated in part by the dark events in Dallas last summer, where five officers were killed and another seven wounded during a protest. We know that even if there had been a suspect to prosecute for the hate-motivated murder of five police officers, we wouldn’t need a hate crime enhancement law to do it. (The suspect in the Dallas ambush was killed after authorities cornered him in a parking garage the night of the crime.) Our legislators knew that too, but they wanted to make a policy statement about such attacks, and from that perspective their action makes sense. So next time you look at an enhancement statute or other newfangled crime that you don’t think you will use much, keep in mind the legislature’s message and motivation.
    This is also a good reminder that you as a prosecutor can use the statute, and there may be a time and a place for you to send a message as well by following through with an enhanced case. Indeed, the Harris County DA’s Office recently filed an aggravated assault case that is enhanced with the hate crimes law to a first-degree felony. It sounds from the news report that it was the perfect time to unleash the law:  www.chron.com/news/houston-texas/ article/Suspected-member-of-Aryan-Brotherhood-arrested-11118877.php.

Our crime-writers are at it again
I like to read the (written) work of prosecutors who draw on their experience to write crime novels. I have talked about John Bobo, a former prosecutor who started with “The Best Story Wins—and Other Advice for New Prosecutors.” He caught the bug after that success and has written a couple of good crime novels since then. But his forte may be in short stories. You really need to go to Amazon.com and check out his two latest offerings: “Taser-Burned Badass: A Short Story,” and “My PTSD Diary: A Short Story of Homicide, Washing Hookers’ Feet, and Mandatory Police Counseling.”
    And mark August 22 on your calendar, because that is when Travis County ADA Mark Pyror’s fifth book in his Hugo Marston series hits the bookshelves. It is titled The Sorbonne Affair, and I’m looking forward to it for some late-summer reading.

Evolution of our Key Personnel and VAC Boards
In 2006, the TDCAA Long Range Planning Committee recommended that our association enhance its ability to help prosecutor offices deliver timely and accessible victim services. We did so by creating a victim services section, complete with its own governing board. The Victim Services Board has done a great job of helping our offices with their delivery of services to victims of crime and of guiding our Victim Services Director, Jalayne Robinson, in how to serve and train offices.
    Fast-forward 10 years. We have discovered that although there are some different issues, the work of the key personnel staffers and VACs intersect on a daily basis. By separating the groups into two boards, we lost some of the communication that is the cornerstone of good governance. So representatives of the two boards gathered in Austin to discuss a solution. After a great discussion, they agreed to bring the two boards back together with some additional structure to be sure that key personnel and VACs are well-represented and can work together as a team. In my view, this is a great solution that makes our association more effective. Thanks for your work and dedication to the cause!

Toward more picturesque speech
You don’t see a hard copy of Reader’s Digest in your doctor’s office waiting room anymore, but many of us recall one of the best parts of that magazine, the regular feature called “Toward More Picturesque Speech.” Because words are a lawyer’s stock in trade, my ears perk up when I hear a great turn of phrase or an innovative use of our language. If you want to learn from the best, you need only listen to English soccer announcers during a match. I heard one who had turned his trade into an art form when, enthusiastically announcing a player scoring a goal, he shouted: “Ahhh, he’s wrapped himself in glory!” That is the way to bring people along with you.
    I don’t think we are doing near as well these days in our public discourse. Most of our new words sound more like advertising soundbites: words like “re-imagined,” “re-invented,” “re-accommodate” (thank you, United Airlines). And during this last legislative session, we heard some new ones: “transactivists” (activists on transgender issues), “re-calibration” (reducing penalties for crimes), and being “evidence-informed” and “evidence-based.” (Do you know the difference? You’re evidence-informed if you’ve read up on a subject; evidence-based practices are validated by some form of scientific data.) And if we take one more “deep dive” into an issue (that term surfaced over and over again at this year’s legislative session), I am giving up my Professional Association of Diving Instructors card and not going near the water ever again.
    So, prosecutors, let’s step it up with our words. Let’s wrap ourselves in glory somehow!

Congratulations, Kenda Culpepper
Congratulations to our Rockwall County Criminal District Attorney Kenda Culpepper, who was recently honored with the Standing Ovation Award for contributions to the State Bar of Texas’ continuing training efforts. Kenda has been involved in State Bar training since 2011, and she capped her service as the Course Director for the 2016 Advanced Criminal Law Course. A job well done!

Tom Moore Jr.
We lost a prosecutor legend when former McLennan County District Attorney Tom Moore Jr., passed away in April. Tom was a well-respected prosecutor and long-time practitioner who earned the singular right in his storied career to appear in court without a tie. I recommend you take a look at the article here:  www.wacotrib.com/news/courts_ and_trials/former-da-legislator-tom-moore-leaves-colorful-legacy/article _b4316007-93a1-59a2-ab7e-063 db020b8cc.html. We can only hope to have careers as rich.
    My favorite anecdote recounted in the article is not a prosecutor story but one from his days in the legislature—Tom introduced a resolution honoring Albert DeSalvo (also known as the Boston Strangler) for his “pioneering work in population control,” to make the point that legislators frequently don’t take the time to read bills before they vote. I like the message that even in serious business, there is a place for humor.