Criminal Appeals fro ...

Criminal Appeals from the DA’s Perspective | Andrew Warthen

November 4, 2021 | by D. Todd Smith

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In Texas, district attorneys’ offices appear as counsel in the courts of appeals more than almost any other litigant. Beyond simply appealing or defending appeals, district attorneys have unique responsibilities as prosecutors that impact the positions they take and the arguments they make. In this week’s episode, Todd Smith and Jody Sanders sit down with Andrew Warthen, an attorney with the Appellate Division of the Bexar County District Attorney’s office. Andrew discusses his background and path to appellate prosecution, as well as the unique challenges of working as an appellate attorney within a prosecutor’s office. He also explains how appeals work within a large DA’s office and the special considerations that apply to the appeals and writs they handle.

Our guest is Andrew Warthen from the Bexar County District Attorney’s Office. Andrew, thanks so much for joining us.

Thank you so much for having me. I’m happy to be here.

Andrew was gracious enough to volunteer to come to talk to us about criminal appeals in the DA’s office setting. This is an ongoing discussion we’ve been having about the criminal appellate side, which is something Todd and I don’t know too much about. We’re happy to have you here to educate us a little bit about that. If you would tell our readers a little bit about yourself, your background and how you got to where you are.

Before I do, I feel compelled to do a quick disclaimer. My views are not necessarily those of the Bexar County District Attorney, the office or any other prosecutor in Texas, nor does anything I say constitute legal advice or a binding statement about any particular case or a class of cases. I got that out of the way. As lawyers, we love our disclaimers. I always like to say it myself, just in case. I was born in Phoenix, Arizona, in a military family. We moved all around when I was a kid but my parents were from Corpus Christi. We always had a connection to Texas. We moved to San Antonio when I was about eight years old. San Antonio has essentially been my home my entire life.

When I was young, I was always interested in law, politics, the constitution specifically, history, things like that. When I was about 19, early 20s, I got the filmmaking bug of all things. I went to the UT Film School and got my undergraduate degree in Radio, Television and Film. I enjoyed that. I used a lot more critical thinking skills than you might imagine like being a critical analysis of media and things of that nature.

Towards the end of my time in film school, I always had a side-eye on going to law school. It’s something I have always enjoyed. I also met the woman who became my wife and still is my wife. I made a decision. I said, “I could either go to Hollywood, try to make it for the next twenty years and not do so or stay with the woman I love and go on to law school,” which is something I’ve always wanted to do. That wasn’t a very hard choice.

I decided to go to law school but before I did so, I took some paralegal classes at San Antonio College. They have a paralegal program. Not because I wanted to be a paralegal per se but because they have substantive legal classes for attorneys in the area. I took a criminal law class, a civil litigation class, and a legal research and writing class. The teacher in that class happened to be, by coincidence, the man who became my boss later on in the Appellate Division, Rico Valdez.

One of the assignments he had us do was an appellate brief. I thought that was so much fun. I enjoyed that. Whenever I went to law school, in my mind, I was like, “I’d like to do some appellate class, a moot court, stuff like that.” I went to law school in Washington, DC. I didn’t go to UT Law because they didn’t accept me. If I couldn’t go there, I would go to law school in DC because that was the Hollywood of Law.

I went to the Catholic University Columbus School of Law. It’s not a very well-known school outside of the DC area but it’s like a lot of the Texas schools. Not a lot of people know St. Mary’s outside of Texas but within the region, it’s well-known. Being in DC, I had a lot of opportunities I don’t think I would have had in a lot of other places. For instance, I clerked for Senator John Cornyn on the Senate Judiciary Committee. I was able to do some internships at the main DOJ, the National Security Section of the US Attorney’s Office for DC. That US Attorney’s Office is the biggest in the whole country. There are a few other federal agencies I did internships for.

I interned for Judge Heidi Pasichow in the DC Superior Court, which is their equivalent of a state trial court. I interned for Judge Alexander Williams for the US District Court for the District of Maryland. I got to see things like Supreme Court oral arguments, including Medellín v. Texas, which is a huge case out of the Court of Criminal Appeals.

I met several Supreme Court justices while I was there. It was a very fun experience to be in the Mecca of American Law. Eventually in law school, I was interested in appeals. I started to gravitate towards criminal law. I TA’d for my criminal law professor. I did moot court, law review and all kinds of good stuff. If I was going to do appellate law, I figured I’d have to clerk at some point and I wanted to clerk.

I ended up doing two appellate clerkships. One was at the Maryland Court of Special Appeals and that was with Chief Judge Peter Krauser. That court is called the Criminal Courts of Special Appeals because they used to only do criminal appeals. They’re like our Intermediate Courts of Appeals. They used only to do civil appeals but now they do everything, the same thing with the Court of Special Appeals.

It was a very difficult year. My judge was a very hard man. He was a perfectionist but he warned me in the interview that he would be. He lived up to it. He also taught me a lot. He taught me how to work well under very fast-moving conditions. The Intermediate Courts of Appeals in Maryland and Maryland is the only Intermediate Court of Appeals, they’re the triage of appellate law. They get the vast bulk of appeals. You’re having to move very quickly but also get the law right and also write very well.

That’s a skill that I carry on. I don’t know if I would have been as good at that without his help in developing that. Before I even started that job, I was offered the clerkship at the Court of Criminal Appeals with Presiding Judge Sharon Keller. I went to work for her. I had taken the Texas bar the year before and I had already passed it. I always wanted to come back to Texas anyway. I get to work for her. I get to learn substantive Texas law, appeals, writs and seeing the behind the scenes of Texas’ top criminal court.

That court is perfect for me. It’s all Texas. It couldn’t be a more perfect court for a Texas criminal appellate lawyer. I’d say all appellate but I’ve been on writs as well. I want to take a moment if I can give a shout-out to Presiding Judge Keller. She is one of the most dedicated public servants in this whole state. She’s completely dedicated to the court, getting the law right, and the people of this state.

I believe if I’m not mistaken, she is the longest-serving judge in the history of the court. She was the first woman on the court. I’ll give a real quick story, if I can, of how dedicated she is. One of the things that many people in the court do is review writs that come through the office. The thing about the writs is eventually they start to blend together a little bit.

What we would normally do is we’d make little notes about them to our judge. One day she came to me and said, “Andrew, I noticed that there was a page missing in one of the writs but you had not noted that. Make sure that you pay attention to all the writs and everything that comes in. Be careful with it because these are important cases.” It was the nicest chewing out I’ve ever had in my life.

I was terrified but she was very nice about it. It was a teaching moment but it showed me that she reads every word of everything that comes across her desk. Sometimes people don’t give her the credit she deserves. I wanted to take that moment and give her the credit I wanted to give her. That was a big experience for me being at the Texas Court of Criminal Appeals. I eventually got hired by the DA’s office. I made it very clear in my interview. This is when Susan Reed was the DA. She hired me. I let her know. I was like, “If I can go to appeals, that would be great.” She was like, “We’ll see.”

I started out in Misdemeanor Intake. Intake Division is where they put together the charging instruments and the case file for the case. It’s the basics. It’s the beginning process of the case. I learned a lot about charging instruments and stuff like that. Eventually, I went to the Juvenile Section and then I was in the Family Violence Section.

Then they needed an attorney in the Civil Division, of all places, for an open records attorney. They’re like, “We know you want to do appeals.” I didn’t make any bones about it. I told everybody who would listen to me, “I’m Andrew. I want to go to appeals.” They were like, “We know you want to do research, writing. This is like that.”

For about a year and it was during an election year so it was a bit stressful, they had me doing the open record. I was the open records attorney, not just for the office but for all the county agencies for that year. That was a very interesting sidetrack in my criminal career. Eventually, I got to go to the Appellate Section in 2015. That’s when they created the Conviction Integrity Unit. There were some extra spaces.

hand raised in a fist
Criminal Appeals: Seeking justice is a nebulous concept. Sometimes, it means getting the maximum possible punishment in a case. It means getting the death penalty or life in prison. Sometimes, it means not pursuing charges at all.

At the time, the Conviction Integrity Unit was part of appeals. That’s because appeals used to do both writs and appeals but the Conviction Integrity Unit was created. We split off those two things. I had done writ at the Court of Criminal Appeals so they put me there. I always joke. I was the very first Conviction Integrity Unit attorney in Bexar County because I was the first person assigned there but we didn’t even have a chief yet.

I don’t want to overstate what I did at that time because the whole section was in flux. Eventually, Jay Brandon was made the chief of that section. Jay was known to people in the legal community because he wrote a lot of legal fiction. He’s a novelist and a fiction writer. He was the director of the Advanced Criminal Law Course. He had all kinds of backgrounds as a defense attorney. He’s back at appeals. He’s at the office right next to me.

For a time, he was the chief of the Conviction Integrity Unit. Along with other attorneys, we helped get that unit going. I made it well known that I do appeals, not necessarily writs. They said, “Come on up to appeals.” That was probably about mid-2015. I had been doing a few appeals while I was in the writs section but I had started doing mainly appeals at that time.

Since that time, I’ve done about 225 criminal appeals. I’ve done about 170 civil appeals, the vast bulk of which are termination of parental rights cases. I’ve had five cases in the CCA, two of which are pending. I’ve had two oral arguments there. I had two other oral arguments scheduled but they got canceled for various reasons.

I have had about 4 or 5 cases go to the Texas Supreme Court, depending on how you count it, but I’ve never had an oral argument there. We do get oral arguments there sometimes. Two of our attorneys in the last few years have but it’s rare. It’s because they usually try to get the parental termination cases done sooner rather than later. In 2018, I was Board Certified in Criminal Appellate Law. That’s been my background up to this point.

You alluded to a couple of things that I wanted to talk about. It’s how the DA’s office is set up and all the things that they do. You think about a DA’s office like, “Criminal,” but it sounds like the Bexar County Office does so much more than that.

Yes. This is true in most DA’s offices around the state, at least large DA’s offices. This is complicated. I had to look this up for a side project that I was working on. There are three types of prosecuting authorities here in Texas. There is a county, a district and a criminal district attorney. All three of those are called for by the Texas Constitution. The county attorney is the default. If there’s nothing else, there’s a county attorney.

The county attorney will represent the state in every matter in court. If the legislature has created a district attorney for that county, some district attorneys cover multiple counties and some of them cover one county, if there’s both then the legislature will regulate what does what. For instance, Harris County, which is the biggest county, has both a district attorney and a county attorney.

The county attorney, from my understanding and I apologize if I’m getting this wrong, is they only do civil litigation for the county government, whereas the district attorney does all the criminal work. In Travis County, another big county, the county attorney does both civil litigation for the county but also does misdemeanor cases, whereas the district attorney does felony cases.

That’s because they are separated out and became regulated like that. There are criminal district attorneys and Bexar County has a criminal district attorney office. They are combined. If there’s a criminal district attorney, there will never be a county attorney. The county attorney has subsumed into the criminal district attorney’s office. That’s what we are.

This has been litigated at the CCA. No matter what kind of attorney you have, one of them at least has to be primarily responsible for criminal cases in the trial courts. The legislature cannot abrogate that. They can’t say in Wilson County the AG does all of the criminal cases. They can’t do something like that. It has to be one of these types of attorneys that does it.

In the Bexar County District Attorney’s Office, we have well over 200 attorneys. I imagine in Harris County, there are much more than that even. For some of the basic setups, the bulk of our sections is the Criminal Trial Division. We have a Family Justice Division. That’s also a very large number of cases. We have Intake Division, appeals, civil, juvenile, the parental termination that we call the CVS Division.

I’m sure I’m missing so many and I apologize to all the ones that I’m not naming here. Major Crimes is another one. The office is broken up into all kinds of different divisions. All the criminal appeals and the parental terminations too will go through the Appellate Section at some point. If the elected DA himself has some conflict, we will all be conflicted out. We can’t wall off the DA.

Let’s say the first assistant, me or anybody else has a conflict, can we wall that person off the DA? We can’t. I’ve had some appeals before. One of them was at the Court of Criminal Appeals at the time where we had to drop the case and get another attorney on it. Luckily, with that particular case, the state prosecuting attorney was able to take it over.

I believe John Messinger was on your show before. He was the attorney that took over that case for me. The main duty of all types of prosecuting authorities in the state is not necessarily to get convictions but to see justice done. That’s our moral duty, ethical duty but it’s also our legal duty. It’s in Code of Criminal Procedure 2.01. It says right there that, “Our primary duty is not necessarily to get convictions but to see justice done.” That’s something that we take seriously in our office.

I will say there has been a major sea change in prosecutor’s offices in the last few years, but it’s been moving towards where we’re going to get convictions and fight to the death to always get what we want. We wear the white hat and they wear the black hat. It’s moved away from that attitude towards, “We don’t just win. We have to deserve to win.”

I’m quoting my colleague, Paul Cho, who told me that one because we were talking about this. I thought that was the perfect way to put it. That doesn’t mean that we roll over on cases. In fact, one of our former DA’s put it perfectly. He said, “Seeking justice is a nebulous concept.” What does that mean? Sometimes it means getting the maximum possible punishment in a case, it means getting the death penalty or life in prison. Sometimes it means not pursuing charges at all.

Usually, it means something in between. It’s a hard concept. You want to make sure that whenever you’re doing these cases that you’re looking at it from all angles. Our main focus is on our victims and communities. The days of a prosecutor looking over, seeing the defendant’s attorney asleep and going, “That’s the defendant’s problem.” Those days are over.

That’s an extreme example but nowadays, the prosecutor would say, “Judge, the defense attorney is asleep. We need to stop proceedings and see what we need to do.” To give you a story, I was talking to our chief of Conviction Integrity. He told me a story about a prosecutor who wanted to enhance a case. You have an old conviction and want to enhance it to a higher conviction with an old case.

When he was looking at the old case, he started to notice that there were problems with the case, how the plea was done and how everything was entered. He took it on his own accord to go talk to Matt and say, “You all might want to take a look, the Conviction Integrity might want to take a look at this, to make sure that this is a good conviction.”

person standing with two arms raised in fists
Criminal Appeals: The younger generation of prosecutors has internalized this idea that justice is winning within the rules. It’s winning the right way, not just winning all the time.

Matt said that what they did was they looked at it and they said, “There does seem to be some problems.” What they did is they contacted an outside attorney. The outside attorney came in to represent the defendant and to look that over. I don’t think in the very distant past most prosecutors would have gone, “Conviction is a conviction. I’m going to move on with it.”

There has been a fundamental shift in the thinking and process. I can’t speak for every single prosecutor across the state, especially the younger generation of prosecutors who internalized this idea that justice is winning within the rules. It’s winning the right way, not just winning all the time. I want to emphasize that it doesn’t mean that we don’t play hard if we need to. We have very vulnerable victims sometimes. We’re going to do everything we can to protect them and to protect the larger community, but we’re going to do it in the right way.

Some of our guests we’ve talked about this a little bit and it seems like part of it is that science has also caught up to give a little bit more certainty. Whereas before so much of it was either circumstantial or may be based on bad science. It seems like that’s been in advance that’s gone hand and hand with this.

The Conviction Integrity Unit handle Chapter 64 Motions, which is the DNA testing. I believe it’s new science as well. They handle those on a regular basis. It used to be the writs would be like, “We oppose that.” Not always but a lot of times. They take a hard look at everything. A lot of times, they oppose it. That doesn’t mean we roll over and everything but if a defendant receives a letter in the mail from a family member and it looks like there might be something there, we get them in contact.

Even if it doesn’t look, we will send some information to them saying, “Here’s the innocence project. You can go talk to them. Here’s a defense attorney.” I believe we have a post-conviction wheel. A wheel is whenever the defense attorneys are assigned cases. It used to be for the trial courts but I believe we have a post-conviction wheel. Something will be assigned to an attorney so they can take a look at it and then they can make whatever writs that they feel are necessary to get justice.

Justice might be upholding the conviction in that case. It depends on what it is. From the post-conviction standpoint, sometimes in appeals we’ll concede a case. We’ll look at it and say, “There’s nothing here to argue. I can’t make a colorable argument on this case.” Sometimes we’ll argue technicalities. If the law is on our side, that’s what we’ll do.

To give a compare and contrast, I’ve got two examples. I had a case where this woman had been convicted. She had been put on probation. We moved to revoke her probation. She went to trial. This is the county court. The trial judge would not let us put on any evidence. He did not swear in the probation officer. Whenever she gave her spiel, she was not sworn in. It was not evidence.

He wouldn’t let the defendant put on any evidence. The defendant said, “This is not true. I’m pleading not true to this.” This case came up on appeal. I looked at it and I was like, “Appalled.” I scoured the record to see if there was anything I could argue but I was like, “No, this was a miscarriage of justice.” I talked to my supervisor, other attorneys in the office and we all said, “There’s nothing here.” Apparently, this is something this judge had been doing for a while.

We’ll say, “Based on this case, he’s been reprimanded.” I won’t name him here but he’s been reprimanded for it since then. That was a case that we conceded. Another case came through one time and the gentleman had been frisked when he shouldn’t have been frisked. That uncovered a firearm and he was convicted of being a felon with a firearm.

That case came through. I was like, “It looks like there’s a harmful error.” He had not preserved his issue. I argued for preservation. I did not concede that case because preservation is a systemic requirement and it has to be followed. That gentleman would have an alternate remedy that would be ineffective assistance of counsel claim on a writ. He would still be able to seek relief from us. I did not concede that case because there was an argument to be made on behalf of the state. I made it.

Those are two kinds of examples where we are seeking justice following the law in a post-conviction context. It’s not as easy to suss these things out. I’ve had cases before. I’m like, “I might have to concede this but there is an argument to be made.” I go into oral argument or writing my brief. I know I’ll probably going to lose. If we lose in the Intermediate Court of Appeals, the Fourth Court of Appeals, I usually let that one die. I don’t take that one up to the CCS. We made our argument. We lost. Let’s call it a day on that.

Is your office ever called in terms of helping out on a matter before it goes up on appeal during the trial?

Yes, all the time. In fact, that’s one of the main things we do in appeals. In appeals, our main duty is to respond to defendant’s appeals. We do PDRs, extraordinary matters and mandamuses. That could be an instance where we help out. We do litigation support. It’s what I call it. The trial attorneys come to us with a question. We have an attorney of the week program. It sounds like I want you to win a prize. It’s the point person in appeals to answer all the questions for the week. If that person’s unavailable, anybody else can help out but we try to funnel it through that person that week so everybody’s not overwhelmed.

Plus, we don’t like the trial attorneys to go to their favorite appellate attorneys. We want them to speak to all of us at some point or another. If there’s a hearing or a motion for a new trial that they need help on, they have questions about jury charges. One of the hot topics and I did a training on this for the office is speedy trial motions. With COVID, every defense attorney is arguing speedy trial. I would do the same thing if I was a defense attorney. We don’t want to roll over on every single case in 2020. We will help them out with those.

Sometimes a judge will grant a speedy trial motion, whatever it is and we’ll do a state’s appeal. A lot of times, they will come to us and say, “We need to appeal this.” We’ll tell them, “We don’t want to make bad law. This is not a good case. The record wasn’t properly developed. You didn’t preserve this argument.” We need to preserve our arguments as much as the defense has to preserve their arguments. Sometimes we have to push back whenever they come to us. Any questions they have, we’re always here to help them. That’s a big part of what we do.

You mentioned something that is probably unique to your office and probably a lot of big DA’s offices. I imagine your office is probably the most frequent party before the Fourth Court of Appeals. You do have a huge responsibility in shaping the law in your appellate district because you have such an out-sized influence more than civil parties. You get in and make your law as best you can but it impacts your office in a way that most people don’t think about.

I would imagine a huge bulk of their cases are criminal appeals from Bexar County. The Fourth Court I believe is 32 counties. They get criminal appeals from all over. We’re the biggest county in that region. The same thing would be true of Harris County, Dallas County and Tarrant County. We have nine appellate attorneys. In my section, we have three writs attorneys and ethical disclosure attorneys. Nine attorneys for a county of about two million people handling every single appeal.

It’s not just the criminal appeals. It’s also the termination of parental rights cases, which is a shockingly high number of appeals and a disconcerting high number of appeals. We deal with a lot of different issues that come up. We’re on the front lines. Things go to the CCA, the state prosecuting attorneys who are fantastic, by the way. I utilize them on a regular basis but they deal with more issues that come up, which are more specialized. I don’t mean this in a pejorative way but an ivory tower. They’re getting the nitty-gritty of certain legal issues.

We’re having to deal with the everyday line issues. Sometimes those blow up at the huge cases and they yo-yo in the Court of Appeals sometimes. I had a case years back that went to the Fourth Court, I lost. I went down to the trial court again. It was a sentencing issue. We won again. We went back to the Fourth Court, we lost, then I took it to the CCA and I ultimately prevailed there. It was an issue that we helped develop in the local office rather than the specialized office, the SBA.

Beyond the mandate to do justice, there are also some limitations on the state as an appealing party that the people don’t think about. How does that impact how you handle appeals?

I’ll give some history on state’s appeals quickly because I found this fascinating. I learned this when I was studying for the specialization exam. There was a case called Texas v. White. The defendant had appealed to the CCA. He won at the CCA. The state then put it in a petition for cert at the US Supreme Court. The Supreme Court takes it, reverses the CCA and sends it back down. CCA says, “We’re going to honor what the Supreme Court did.” Good for them. “From now on the state is not allowed to seek cert in any case.”

multiple people holding hands
Criminal Appeals: We have very vulnerable victims, and we’re going to do everything we can to protect them and the larger community, but we’re going to do it in the right way.

This was way back in the ‘80s. “The state is not allowed to appeal and a cert petition is an appeal.” I was shocked when I learned that. I couldn’t believe that the CCA would tell the state that it couldn’t even seek cert. That’s how strict they were. The state has developed over the years, maybe in large part because of that case. The state has the ability to appeal but we are limited. There are about ten things we can appeal.

The vast majority of the things we appeal are suppression motions. They are dismissals of indictments. A speedy trial motion will dismiss the indictment. That’s something we can appeal. Sometimes we don’t want to appeal if there’s a motion to quash. Let’s say that the prosecutor comes up to our office and he says, “They quashed the indictment. We got to appeal this.”

We ask them, “Can you amend the indictment to make it a more solid one? Are we within the statute of limitations? Can we re-indict this case?” If there’s an alternative method to go into the appeal, then that’s what we want to do because we have the ability to make bad law. As the appealing party, we’re at a disadvantage.

Everybody knows when you’re the appealer, even if it’s de novo review, you’re at a disadvantage. That’s true for the state as much as it is for the defense. Sometimes even more for the state because a lot of times the attitude of appellate judges is like, “State, you always win.” Sometimes you lose, accept that and live with it. That’s the way things go sometimes.

That’s what we do sometimes. A lot of times we tell our trial attorneys, “We can’t do this or we don’t want to appeal.” There are all kinds of considerations. We don’t want to make bad law. Did you preserve error? Did you develop a record? Do we want to appeal this particular judge? Do we have a bad relationship with this judge? Do we have a good relationship with this judge? Do we trust this judge?

Sometimes though it’s the opposite. Sometimes we have a judge who’s granting every defense motion there is. We have to push back on that judge and say, “We do want to appeal this judge so we can see if we can develop law.” That’s with a risk too because if we lose then they’re going to be more emboldened to do whatever they want.

These are considerations that we have to take in appeals. Sometimes this is true of all the advice we give. Sometimes we have to tell them, “We’re not going to do that. That’s a bad idea.” They don’t always like to hear that but most of them trust us. Sometimes they still do what they want. We can have to clean it up the best we can if we can.

It’s not all that different on the civil side.

In fairness, I’m not in trial. I’m not on the ground. I do not see how it is. They might say, “I have to do this because if I don’t, I’m giving away the farm for every other thing down the line.” I understand that. I’m not unaware of their limitations there but at the same time, sometimes I wish they would slow down and think about it. Many problems on appeal, not just state’s appeal but even defense attorney appeals, I look at it and go, “He didn’t need to do that. This has made my life so much harder.” That’s the job.

We had Michael Falkenberg on. We enjoyed talking with him. One thing that we explored with him a little bit besides writs of habeas corpus, which we still find fascinating, is the realm of mandamus on the criminal side. Michael gave us an interesting education on that. Do you see that in your practice? What areas are mandamus petitions taken up?

I treat the mandamus like a state’s appeal. It’s something that we’ve got to be very cautious about. I understand the standard is becoming more permissive. The standard stays the same but the courts are becoming more permissive with it. That being said, you are in control of should we take this up. That’s something that a lot of attorneys need to stop and think, “Should we do this?” It’s like Jurassic Park, nobody stopped to think if they should. The same thing is true with the mandamus.

I worked on two mandamuses myself. We’ve done several others in the office but they’re rare. We got the trial court to back down at the last minute. He rescinded his order because his staff attorney, more than anybody, convinced him that he should do so. The mandamus was looming and he knew that. Another one we took all the way to the CCA and I was not the primary on that case but I was the secondary attorney on it. We half won and half lost that case.

Was it worth it in the end? Maybe. It depends on how you look at it. It was a lot of time and resources. We have a legal opinion out there on that issue but it was half won and half loss so do we want that opinion out there on that issue. It’s like a state’s appeal. You’ve got to be cautious about what you ask for. I err on the side of caution. We have some attorneys in our section who are a little bolder. We have those debates among ourselves about what we should do. Ultimately our chief, Mary Beth Welsh, has been in appeals since 1997. She’s seen, done and knows it all.

She’s not a know it all. I will say that about Mary Beth. She’s very open to hearing other people’s views. Ultimately, she’ll make the decision. The ultimate decision is with the district attorney himself, Joe Gonzales, in our office and whatever district attorney office you’re in. He greatly defers to his chief of appeals, as you would expect him to do. We have conversations among ourselves about mandamuses, state’s appeals and then she will take that to Joe and give a recommendation.

Does the way you advocate change whether you’re wearing your criminal appellate hat or your civil appellate hat?

I don’t think I would say how I advocate changes because the vast majority of our civil cases are parental terminations. Those cases are near and dear to my heart. My sister’s children are all adopted. She has adopted them and they all came from that foster care system. Their natural parents, parental rights were terminated. Three of my nephews are all from that system. I take those cases very seriously. We have a lot of those. Sometimes they can blend into each other a little bit. We want to make sure that you’re always keeping in mind that this is a child’s life. Who you’re raised by is probably the most important thing that happens to you in your life.

If there’s a child who was in a house, cockroaches were crawling through their hair, they didn’t have any food in the refrigerator and haven’t been in school in three months, we want to make sure that case is upheld on appeal. In some ways, those cases are probably the most important cases that we do at the District Attorney’s Office on a regular basis. You would say something like a death penalty case is the most important case.

The parental termination cases have been called the death penalty of litigation. There’s something to that because it’s the ultimate severing of ties between the parent and the child. The best interest of the child is the main standard or the main thing you’re looking for. As far as advocating, I wouldn’t say it changes. If anything, we go harder for the civil cases than the criminal ones. The criminal cases, sometimes you don’t have a victim, say it’s a drug case. You’re more willing to say, “If I lose this case, it’s not going to be the end of the world.”

As you all know, sometimes the issues on appeal don’t have anything to do with the type of case it is. I’ve had capital murder appeals where it was mundane. This is a non-death penalty. This is life without parole cases. The actual type of issue on appeal is nothing. I’ve had misdemeanor theft cases where it’s the most brain-twisting type of issue you’ve ever had in your life. You’re like, “How do I even start to approach this?” I don’t approach them any differently from each other, except to keep that in mind. This is true of all kinds of criminal or civil proceedings in a DA’s office.

Most of the time, you’re dealing with people’s lives, your victims, your community, the defendant and the parents. You have to have a certain objectivity or disconnection but at the same time, you also have to take it very seriously. Every once in a while, you have that bad apple DA but the vast majority of everybody I know in this office they do.

How do you make time and take care of yourself? I know the stuff that you see that you’ve described. You see some difficult, traumatic and hard stuff. How do you disconnect from that and make sure you’re taking care of yourself?

two people having a conversation over coffee
Criminal Appeals: In appeals, our main duty is obviously to respond to the defendant’s appeals. We do PDRs. We do extraordinary matters. Mandamus is an instance where we help out. We do litigation support.

I’m very close to my family. I spend a lot of time with my nephews. I have a new baby niece. I have a new baby nephew so I love them. I spend a lot of time with my family. I watch soccer. I’m a big soccer fan. I read a lot of fiction books, non-legal writing. I try to stay mentally healthy that way. I don’t want to say we get numb to it but there is a numbness that comes with it. It’s like a callus you build up when you’re sewing. It’s something that’s necessary to the job. You couldn’t be in pain every time you went to go sew.

If you’re getting them to be honest, almost every single prosecutor across the state would say there are some cases where sometimes you close the door and you take a moment. For me, especially, those are the cases when there’s been horrific child abuse. If you get two gang members who kill each other and murder is always wrong but I don’t have the deep feelings for that as I do for a child who’s been abused especially if it’s like some sexual abuse or something like that.

Sometimes they do. You have to take a moment to sit back but that’s one of the things that drives us. We are there to fight for our victims and community. We want to do it in the right way so it’s not overturned on appeal. We want to make sure we do our appeals in the right way so that they are not overturned. That case where I conceded on and I’ve conceded on other cases too but that was a drug case and it was a misdemeanor case.

Conceding on that case is not going to be that big a deal. It would be very hard for me. I would have to make sure that it had to be done if it were an indecency with a child, sexual abuse of a child or anybody. If that were the type of case that came in front of me, it would have to be something I’d have to be convinced that justice was not done here and we need to concede. That would be a big hurdle to overcome. I would have to convince my higher-ups before we could ever do that. If you want, I could talk about our specific sections and the people in them.

We have nine appellate attorneys. I am going to name everybody. There is our chief, Mary Beth. Scott Roberts is a former judge. Jay Brandon, who I told you about. There’s Laura Durbin, Nathan Maury, Jennifer Brown, Stephanie Poleson, Paul Cho, that’s our Appellate Section. There are nine of us. I have joked that we’re like a CCA, a Texas Supreme Court or something like that. With our three writs attorneys, our chief is Matt Howard who knows everything there is to know about writs. Lawrence Zamora and Hank Wilkins is the new guy.

We also have a specific ethical disclosure attorney in our office who is not technically post-conviction but works very closely with the Conviction Integrity Unit. Her name is Caitlin McCamish. We have our two paralegals/admins. That’s Shameka Roberts and Lindsay Prince. We have an intern who I found out that’s Ashley Huron who passed the Texas Bar. I oversee the intern. I’m her immediate supervisor. I feel like a parent. I’m so proud of her. She did such a great job.

When you say ethical disclosure, is that like Brady material type disclosures?

Yes. Ethical disclosure is part of the sea change in the office. We have Brady material. We have the Michael Morton Act. It was a huge change for a lot of prosecutors across the state. A lot of the things that were in the Michael Morton Act and I can’t speak for every office but our office was already doing those things. Open files, things of that nature, we were already doing those things in Bexar County. She keeps what we call a Brady list. The Brady list is a list of officers or other witnesses who have certain ethical problems. We will not call them.

You’re a trial prosecutor trying to get your case put together and you see the officer is on that list, you’re forbidden from calling them. She maintains that list. She lets everybody in the office know there’s a new policy and a new law that’s come out. In fact, Caitlin and I, by coincidence, were working on a new form. That’s a waiver form for certain defendants but at the bottom of the form, it says in big bold letters, “Just because you’re waiving something right now doesn’t mean that we don’t have a continuing duty to disclose to you any exculpatory information in the future.”

That’s an ongoing duty by law. I would like to think that prosecutors would do that anyway. Unfortunately, it’s a law because they didn’t always do it. It’s like many laws. It exists because somebody didn’t do what they were supposed to do. She used to be in the Conviction Integrity Unit. She works very closely with them because one of the main claims you can bring up in a writ is Brady violations and false testimony, false evidence violations, things of that nature. They talk to each other on a regular basis on those cases.

Andrew, the cases you work on, many of them are what we would call high profile or high stakes. I would imagine that the DA’s office gets a lot of calls from the press wanting comments. How does the DA’s office handle that? Is the press allowed to talk to the individual DAs? Does all the communication go through the DA? How’s it handled?

In our office, we have a press department. I’m not exactly sure what they’re called but they’re media relations. They’re the ones who will put out any statements or anything like that. Individual prosecutors might talk about a trial that just ended. They might say a statement or something like that. Personally, I never have received any requests for comments or anything like that. I doubt any other of our appellate attorneys ever receive anything. I never even hear from victims.

In my time at appeals, I’ve met one victim and one victim’s family. That’s only because that case got knocked down to the trial court and I was helping out in the trial process. That was the one I was talking about that went back up to the CCA. The family was very involved in that case all the way through. That’s rare for us in the post-conviction but we have a specific department that will deal with community public relations.

This has been very informative. It’s been super interesting to hear about the inner workings of the Bexar County DA’s Office. We’re so glad that you reached out to us about talking with us because I don’t know that we would have gotten this information seeking it out on our own.

It’s a unique office. I’m normally in Bexar County but Bexar County is very much like every other big county. In your medium counties, you’re going to have one post-conviction guy and he’s got to be like the jack of all trades for everybody. In your small counties, it’s maybe one district attorney and his assistant maybe. They have to fish it out to private counsel or maybe the SBAs office will help out with them. Every office is very different. Whenever y’all asked me to come on, you asked for a headshot and for my web bio and I was like, “I don’t have any of those things. They’re going to think I’m some kind of joke.”

Those are not things that we need in our practice. There’s nothing wrong with having those things by any means. Private counsels have to market themselves. This is not a pejorative but we’re not financially driven in the DA’s office. I’m bragging on my own section here but I would say these are some of the best appellate attorneys in the whole state. Nobody will almost ever know who they are because they don’t get the recognition because that’s not part of the job and what we do. We come in, do our job and move on to the next case. We have a flood of cases that we work on but we’re happy to do it. We love our jobs, representing the people in Texas and seeking justice.

person doing a thumbs down motion

We’re glad to hear that perspective because we don’t see enough of those folks in our practices day in, day out. What we’ve covered is a nice complement to some of the other guests we’ve had on to talk about criminal appellate matters. Maybe the only area that we haven’t covered there, Jody, is we haven’t had an assistant US attorney or something like that on the federal side come on. Maybe that’s where we go with this next.

Those guys are top-notch. During my time interning when I was in DC, I can tell you the appellate attorneys in those offices are top attorneys.

We’ll consider that for a future episode. Before we go, Andrew, it’s our tradition to inquire with each guest about whether they have a tip or a war story to help us part ways and then end on. Do you have anything for us?

I was thinking about this. I have two that are very short so I won’t take up too much time. I had a parental termination one time and it was ineffective assistance, which you can raise in a parental termination. What the Fourth Court of Appeals did is they presumed prejudice. You have to say deficient performance and prejudice but they presume prejudice. There’s a line of cases that you can presume prejudice. I didn’t think they should do that. It conflicted with another case that they had had previously. I put a motion for rehearing. The en banc court denied my motion for rehearing. They wrote a new opinion and overruled their old case, the case that was good for us. I took that case to the Texas Supreme Court.

We all know the Texas Supreme Court takes three years to do anything. In two weeks, they denied my petition. In a few weeks span, I lost a case and a rehearing. I got another case overturned. I didn’t get my petition granted at the Texas Supreme Court. The lesson here is to take your L. Sometimes you lose, don’t push your luck. My other story is about the first time I ever argued at the CCA. The case involved whether or not the military sodomy statute was substantially similar to our Texas sexual assault statute. You compare the elements and you see if they’re substantially similar.

I was a little bit nervous and it’s my first argument up to the high court. I got up there and said, “In the military, sodomy is,” and then I listed everything that sodomy was under the former military law. It was an awkward and embarrassing moment. The defense attorney gets up to argue. His name is Michael Robbins. He’s retired unfortunately but he was one of the best defense attorneys I ever came up against. He was one of the public defenders here in Bexar County.

He says, “The military sodomy statute,” and then Judge Richardson goes, “You don’t have to define it for us.” Everybody laughed. I was like, “I know.” I was nervous. The lesson here is to be cognizant of what you’re saying at all times. Brevity is your friend. Whenever you’re doing oral arguments, it’s not what you say. It’s what you don’t say.

Thank you so much. We appreciate you coming on.

I appreciate you all having me on here. This is a great show. Giving our office a voice on the show and all the other criminal practitioners you’ve been having on, I can tell you that we appreciate all that.

That’s good to hear. Thanks for being with us, Andrew.

Thank you.

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