Lubbock Criminal Defense Lawyers Association

I am pleased to report that in a 3-0 unanimous decision, the Seventh Court of Appeals of Texas reversed the convictions of Tracy Ward and Rhonda Smith, who had both been convicted of delivery of a controlled substance to a child for their alleged in utero transfer of drug metabolites to their fetuses.

In a brief opinion, the Court held that the chemical transfer in question did not constitute a “delivery.” “Implicit within this definition is the need for the transferor to exercise both possession and control over the substance delivered,” the Court held. The Court went on to hold, “the recipient must also gain or exercise possession over the transferred substance before it can be said that the actual manual transfer occurred.” The Court then noted that it was impossible for the unborn fetus to “possess” the drugs since they never handled, manipulated, or used them. Instead, the only evidence of possession on the part of the fetuses was the presence of the metabolites in their bloodstreams. This is insufficient as a matter of law. The Court noted that its decision is in accord with that of other jurisdictions.

The Court declined to adopt the District Attorney’s expansive definition of the crime. “We are a judicial body obligated to enforce the law as written by the legislature. If that body cares to define “deliver” as including the transfer of drugs by a mother to her unborn child through the exchange of bodily fluids, it may do so. Yet, ours is not to write where it has not.”

The Court did not address the issue of whether a fetus is a child for purposes of the statute or whether the prosecution was constitutional.

The State has a right to seek a rehearing of the case in the Court of Appeals and to seek review in the Court of Criminal Appeals.

The opinion can be read here.

The case was argued on behalf of Ms. Ward and Ms. Smith by Professor Larry Cunningham of Texas Wesleyan Law School and Joe Dawson of Amarillo, Texas. With them on the briefs were Kenneth Richey and Greta Braker who, at the time, were law students in the Texas Tech Criminal Justice Clinic.

Larry Cunningham
Visiting Associate Professor of Law, Texas Wesleyan (2005-2006)
Assistant Professor of Law, Texas Tech (on leave 2005-2006)

The Criminal Justice Section of the State Bar of Texas is pleased to announce a limited number of scholarships for prosecutors and criminal defense attorneys who wish to attend the State Bar of Texas 2006 Advanced Criminal Law Course. The course will be held in Dallas, July 24-27, 2006. Course tuition and reasonable personal expenses not to exceed $1,000 will be reimbursed. Applicants must be member of the Criminal Justice Section of the State Bar of Texas, not have attended the course within the past two years, be financially unable to attend without scholarship assistance. Request for applications must be in writing to fax number 817-338-1020. Application deadline is June 1, 2006. Recipients will be notified two weeks prior to the seminar.

All non-scholarship attendees to the Advanced Criminal Law Course who are current members of the Criminal Justice Section will receive a $25.00 tuition discount for the course.

The Supreme Court ruled Wednesday that police without a warrant cannot search a home when one resident says to come in but another tells them to go away, and the court’s new leader complained that the ruling could hamper investigations of domestic abuse.

Check it out at: http://www.msnbc.msn.com/id/11959183/from/ET/

Not long along I got appointed to a case, and that person informed me that they were seriously thinking about negotiating with the DA. Then, they came across the LCDLA brochures, and quoted back to me, “The DA works for the State…” This person concluded that the DA was not their friend nor there to work for what was in their best interest. Anyway, I just wanted to say how proud I am to be part of an organization that keeps the public and criminally accused informed. It reminds me of Clooney’s movie – “Good Night and Good Luck” – (a profound movie in my opinion about keeping the public informed and invoking thought).

Anyway, I also recently saw Rusty Gunter on a mission to talk with a person who negotiated or was negotiating with a DA pro se; I was not present for the exchange in conversation, but it’s my understanding that that person was not fully informed of the ramifications of taking a deferred. I just wanted to say kudos to Rusty.

Elizabeth McRae-Juarez

Effective April 24, 2006, the Fifth Circuit Court of Appeals clerk’s office mailing address will be: 600 S. Maestri Place, New Orleans, LA 70130. All items expected to be delivered on or after April 24th must be sent to the new address.

LCDLA gets good PR in the March, 2006, Texas Bar Journal for our annual seminar held each year in January. Jim Bethke, the director of the State Task Force on Indigent Defense has written an article for the Bar Journal which credits our seminar as an example of the good things TCDLA has been able to accomplish with the help of the Texas Court of Criminal Appeals and, of course, with the hard work of the membership of LCDLA. To read the entire article, click here.