Issuu

DEFENDER VOL. XXVII ISS. 1 • WINTER 2026

S A N A N TO N I O

IN MEMORIAM: GERALD S. “GEARY” REAMEY

COME BACK WITH A WARRANT

SUBPOENAS

SACDLA OFFICERS Amanda I. Hernandez

Dayna Jones

Zoe Russell

President

Secretary

Executive Director

Andrew Froelich

Jessica Gonzalez

Vice President

Treasurer

IMMEDIATE PAST PRESIDENTS Trisha Morales Padia Matthew Allen Roland Garcia John Hunter Joseph Esparza Loraine Efron Don Flanary Michael McCrum Patricia Jay

Warren Wolf Robert Featherston Jorge Aristotelidis Jay Norton Michael Gross Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor

Stephanie Stevens Jim Greenfeld Michael S. Raign John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

Forrest Good Valerie Hedlund Staci Krause Guillermo Lara Adam LaHood Keri Mallon Pat Montgomery Angela Moore Bryan Orihel Adam Paltz

Mary Pietrazek Molly Roth Elizabeth Russell Zoe Russell Shawn Sareen Christian Vega Meenu Walters Robbie Ward

BOARD OF DIRECTORS Rolando Arguelles Jim Beethke Anne Burnham Jonathan Chavez Karen Corby Daniel De La Garza Dean Diachin Andrew Froelich Arlene Gay Steven Gilmore

DIRECTORS EMERITUS Charles Butts

Anthony Nicholas

If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email Padia.Trisha@gmail.com.

SAN ANTONIO

DEFENDER 04 05 06 10 28 34

LETTER FROM THE PRESIDENT Amanda I. Hernandez

LETTER FROM THE EDITOR Trisha Morales Padia

COME BACK WITH A WARRANT Jessica Gonzalez

SUBPOENAS Jessica Gonzalez

CASE LAW UPDATE Mary Moore & Luke Keathley

40 14

SACDLA HOME RUNS

IN MEMORIAM: Gerald “Geary” Reamy Mark Stevens Michael S. Ariens David Dittfurth Winston F. Erevelles Andrew Froelich Cynthia L. Hampton Keith S. Hampton Vincent R. Johnson Victoria Mather Michael McCrum Patty Roberts Gretchen Sween

EVEN CRIMINAL DEFENSE LAWYERS NEED AN EXIT STRATEGY Trisha Morales Padia

EDITOR-IN-CHIEF, DEFENDER

DESIGNER, DEFENDER

Trisha Morales Padia

Jay Douglas Rumisek JayRumisek@gmail.com

PHOTO CREDITS All editorial images in public domain.

The San Antonio Criminal Defense Lawyers Association

P.O. Box 831 206, San Antonio, Texas 78283 210.501.2916 | sacdla.com

Letter From the President Amanda I. Hernandez

As we close the holiday season and begin a new year, I reflect on how grateful I am to have been given the opportunity to serve as President of such an incredible organization. Serving you has reminded me of why I love our profession and why our work truly matters. In a time marked by division, conflict, and prejudice, our work reminds us of the power of compassion and of treating every individual with dignity and respect, even when they are accused of doing something terrible. Even when we are inherently different from them. Even when they do not offer us that same respect. Criminal defense is more than a profession. It is a commitment to fairness in a system that does not always extend it willingly. It is a dedication to ensuring the Constitution is neither forgotten nor ignored. We stand between the individual and the government, and our duty does not rise or fall with public

opinion. It is grounded in our values and in the Texas Disciplinary Rules, including Rule 3.04, which calls on us to ensure fairness in the administration of justice, and Rule 1.03, which reminds us to communicate with respect and honesty. The start of a new year invites reflection, and I want to thank each of you for your dedication. For fighting the tough cases, showing up for the marginalized, and insisting that humanity, not fear or prejudice, guide our legal system. In a world that often chooses judgment over understanding, I encourage you to continue choosing justice. I am proud to stand with you as we move into this new year together. May it bring renewed purpose, resilience, and hope. Amanda I. Hernandez President, San Antonio Criminal Defense Lawyers Association

Letter From the Editor Trisha Morales Padia

As we welcome a new year, I find myself reflecting on the remarkable strength, dedication, and resilience of our San Antonio Criminal Defense Lawyers Association community. Each January offers us a natural pause, a moment to take inventory of where we’ve been, what we’ve learned, and how we will grow in the year ahead. For criminal defense lawyers, this reflection is more than a ritual; it is an essential part of our calling.

but for each other.

This past year challenged us in ways both expected and unexpected. We stood beside clients facing the weight of the government, navigated courtrooms still adapting to shifting procedures, and continued to advocate fiercely for justice, fairness, and dignity. Through it all, one truth remained constant: the power of our collective commitment. Our members show up, not just for their clients,

Thank you for your service, your voice, and your unwavering dedication. I look forward to another year of standing together in pursuit of justice.

As we step into 2026, let us begin the year with renewed focus on education, collaboration, and elevating the practice of criminal defense in Bexar County. Our CLEs, mentorship opportunities, and community initiatives continue to strengthen the fabric of our organization, and I invite each of you to take an active role in shaping the year ahead.

Wishing you a powerful and purposeful start to the new year. Trisha Morales Padia Editor-in-Chief, The Defender

Come Back With A Warrant

Jessica Gonzalez

ave you ever read an offense report and thought to yourself, why didn’t the officers collect this evidence? Have you ever prepped a case for trial and asked yourself, why didn’t the detective get these cell phone records? Have you ever contemplated going out and getting a suspect’s DNA to compare to unknown DNA found on the victim? Has a business ever told you, “I need a search warrant to give you that”? Have you ever wondered why we have to rely on the investigation done by a lazy detective and can only use the evidence they found? If so, I’d encourage you to get a search warrant and get the evidence yourself. Yes, you read that correctly: go get a search warrant!!!

The Code of Criminal Procedure: Chapter 18 of the Code of Criminal Procedure outlines the requirements, the evidence, and the processes for a search warrant. See Tex. Code Crim. Proc., Chapter 18. A search warrant is “a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate.” Tex. Code Crim. Proc. 18.01 (a). A search warrant may not issue “unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.” Tex. Code Crim. Proc. 18.01 (b).

The Code does not limit the class of people who can apply for a search warrant. See Tex. Code Crim. Proc. 18.01; Dickey v. State, 816 S.W.2d 832, 834 (Tex. App., Eastland 1991, no pet.). That means any person who can satisfy the magistrate’s requirements for probable cause can apply for a search warrant. All you need is a crime, probable cause, a description of the evidence you want, and where the peace officer should look for that evidence. Generally speaking, a search warrant can be issued to search for and seize: stolen property, property specifically designed or used in commission of a crime, arms and munitions kept for a riot, prohibited weapons, gambling devices or equipment, obscene materials, drugs and paraphernalia, any property prohibited by law, instruments of crime, property constituting evidence of a crime, persons, contraband, electronic customer data held in electronic storage, and cellular telephones and wireless communications device. Tex. Code Crim. Proc. 18.02. A search warrant can also be issued to search for and photograph a child of abuse, but this article does not address this type of warrant since it could get really complicated. See Tex. Code Crim. Proc. 18.01 and 18.021. Also, while we could get the electronic records/customer data, I don’t think we would be able to search a person’s phone with all that is required for a search warrant to get into a person’s phone/wireless communication device. See Tex. Code Crim. Proc. 18.0215. Along with the probable cause, the search warrant does have other requirements. Tex.

Code Crim. Proc. 18.04. The warrant must say that it runs in the name of “The State of Texas”. Id. The warrant must identify, as specific as possible, what or who is to be searched and name or describe what is to be seized. Id. The warrant must command any peace officer of the proper count to search. Id. It must be dated and signed by the magistrate, and the magistrate’s name appear in clearly legible handwriting or typed with the magistrate’s signature. Id. The goal of search warrant law is to ensure there is sufficient probable cause to search and to prevent mistaken searches against an innocent person. Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim. App. 1978). Once the warrant is signed, Article 18.07 provides the days allowed for the peace officer to execute: 15 whole days for DNA or 3 days for everything else. Chapter 18b warrants are limited to authorized peace officers which are basically only those who work with law enforcement agencies.

The Process: Draft an application/affidavit for a search warrant, a search warrant, a return and inventory, a business records affidavit, and any notices or information that should go along with the requested search warrant. I contacted the judge ahead of time to give a warning, and then I scheduled the case on the court’s docket. That morning, I went to the courtroom with my peace officer/my investigator, I showed the papers to the ADA, we briefly conferred, and I gave the judge the case law and statutes to read ahead of us going on the records. When 7

the judge was ready, he called us up to the bench. We went on the record, judge swore me in, asked a few questions which I answered, and he signed my search warrant. I took the signed search warrant to the clerks in the back, and I made a couple of copies just in case I needed a copy for later. My investigator and I took the original to the District Clerk’s office, and he asked the warrant clerk for a “writ number” for a search warrant. I sat back at this point because it was really out of my wheel house. The clerk took everything from there and gave my investigator his paperwork to go execute the search warrant. The investigator executed the warrant to the business, and the business is in the process of the search for the records. Easy peasy.

The Tricky Parts: This is all new territory. In fact, when you draft an application and ask the judge to give you a search warrant, the judge will look at you as if you are having a stroke or speaking a foreign language. You will need to be intimately familiar with all law concerning search warrants in order to teach the judge to say yes. Because your client has a constitutional right to prepare a defense, it’s nonsensical only a prosecutor or State peace officer should have a way to collect evidence. Furthermore, in my opinion, you are doing the State’s job. That lazy detective or incompetent officer should have done this in the first place. And if you learn this evidence is exculpatory, the prosecutor has a duty to go get the evidence. I 8

would be very shocked to hear an ADA argue on the record that you should not be able to go collect evidence in the preparation of the defense. After you get past that hurdle, I believe execution is going to be the next challenging part of this process. Since a search warrant is an order to a peace officer commanding him to search a place and return evidence, it will need to be executed by a peace officer. While Chapter 18b specifically defines who is an “authorized peace officer”, Chapter 18 has no such definition. Compare Tex. Code Crim. Proc., Chapter 18b to Tex. Code Crim. Proc., Chapter 18. As such, I believe a person with a peace officer license issued by the State is a peace officer who can execute a search warrant under Chapter 18. But I do not have legal authority to support this opinion, so be ready to make strong arguments as to why you need this evidence in order to protect your client’s constitutional right to prepare a defense. While we explore this new tactic, let’s be careful as to how we proceed. Or have the judge get you an authorized peace officer to execute the warrant. But that’s a whole other discussion. As attorneys we must also be mindful of our duties to have candor with the court and to maintain impartiality with the court. See Texas Disciplinary Rules of Professional Conduct 3.03 and 3.05. Normally a police officer goes to a judge to apply for a search warrant without anyone else being present or even knowing this happened. But we have a higher standard

with the court than officers. There is no exception to the rule prohibiting ex parte communications with the court in applying for a search warrant. Therefore, I scheduled this process with the court and included the prosecutor at the bench when I presented my application for a search warrant. I also made sure to do this on the record so that if the court denied or the prosecutor objected to my request, I could preserve potential error for post conviction. I am not saying it would have been error. Again, this is new territory and I wanted to be sure I would be covered later if needed.

Fair Warnings: While the State has access to who and what is subpoenaed, a prosecutor would have to get their own subpoena to get a copy of evidence you received from a subpoena. But once you get evidence with a warrant that evidence will be returned to the court and become public

record. This means you best be sure your client is okay with whatever information or evidence is found through a search warrant. It may be time for a harsh, “come to Jesus” talk with the client. Also, don’t apply for a search warrant on a Friday. There are time limitations on the warrant to execute, so unless your investigator loves to work weekends, apply on a Monday. Be careful what information you use to develop probable cause. AKA: do not use information of confidential communications with client unless the client signs off on making that information public record. Please share your experiences trying this with your colleagues. This is all new and we have to be okay with trial and error until we perfect the process. And last but not least, remember: with great power comes great responsibility. While the black and white letter law is solid, it’s taking time to teach the judges we can do this. Be patient. Bring your law. And be responsible. Good luck!!!

Subpoenas Jessica Gonzalez

I. Code of Criminal Procedure: A. Chapter 24: Subpoena & Writ of Attachment B. Basics: 1. A subpoena is a COURT order directing a person to come in and testify. 2. Attorneys request it, investigators/legal assistants/constables/etc. serve it, and the return is filed after service. 3. When advising a person about a subpoena:

a) If they have been subpoenaed, they have to go to court to testify. If they choose not to follow the court order, they may be arrested (attachment) and brought to court to testify. And if the trial is not going on, they will be held in jail until needed. b) If no subpoena, it’s their choice whether to appear and testify as requested. 4. If a person disobeys your valid subpoena, it’s your choice as to whether to enforce it. But you do have to file the paperwork for it. An attachment doesn’t just happen.

C. Additional Information: 1. Anyone over the age of 18 and not a participant in the proceedings can serve the subpoena. 2. Can only subpoena an adult. If you need a child, you must subpoena the legal guardian and duces tecum the guardian to bring the child to court. 3. If you need records or other things, subpoena duces tecum for items you need. But there are limits (ie: can’t subpoena a CW to bring in the phone so you can search for evidence). II. Process: A. Request: 1. EFile a request for a subpoena with the clerk’s office (district or county). Most clerks’ offices have a subpoena request form on their website. 2. Some of the forms ask for a return date/“returnable”. I think this is the date you want them to appear for trial or turn over records. 3.

Service: choose one

a) Private Process Service: you (using a legal assistant—LA) or investigator will serve the subpoena. The clerk will call when it’s ready for pick up.

(1) If you have a private process server, they will pick up subpoena and do the rest. (2) But if you (the LAs) are serving, you pick up. b) Sheriff’s Office Service: Bexar County constables will serve the subpoena and file the return. THE REQUEST NEEDS TO BE FILED WITH AT LEAST 10 DAYS NOTICE. c) COMAL IS DIFFERENT: IN THE COUNTY COLUMN WRITE COMAL IF YOU WANT THE SHERIFF TO SERVE OR PRIVATE IF IT’S A PRIVATE PROCESS SERVER OR A LA. 4. Instanter: the person has to be there today/now. But since “today” is so vague, I never check that box unless I’m in trial and the witness will be served right then and there and go on the stand to testify. B. Service: 1. If you have a private process server, check with the private process server for what/how they do it. 2. But the legal assistants can serve a subpoena and save money. a) Cooperative Witness:

(1) Speak to the cooperative witness and verify they will accept service of the subpoena via email. And confirm their email. (2) Draft an email for the witness with the subpoena as an attachment and ask that the witness reply back that they received the subpoena. (3) I call a legal assistant into my office, and they hit the send button. b) SAPD: (1) For SAPD records, send subpoena to sanantoniotx@govqu. us and SAPDSubpoenas@sanantonio.gov (I don’t know which one gets to the right place so I send both) an use the above procedure to serve SAPD. (2) Once SAPD receives the email, they send an auto email with

a unique number to track the request. (3) There is a portal you can register for to check on your request. 3.

Return:

a) Once it is confirmed (via email or call witness or SAPD’s email) that the witness received the subpoena, fill out the return. Usually all the dates are the same. b) Have the legal assistant who hit send on the email that they served the subpoena. c) EFile the return. III. Attachment: A. It’s a whole separate process requiring a motion, hearing, and order for the court. B. If a court grants the request and the person is arrested, be sure to remind the court to appoint an attorney to the person. It’s professional courtesy and the law.

CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate, and excite our membership. If you would like to contribute, please contact a member of the Defender staff.

In Memoriam:

Gerald S. “Geary” Reamey Mark Stevens Geary Reamey ... In His Own Words When he heard that The Defender would be publishing tributes to Professor Reamey, David Guinn, Jr. wrote this: “I didn’t go to St. Mary’s, but his work sent mighty ripples through the pond.”1 Geary credited Ms. Grew, his seventh grade teacher, for inspiring in him a desire to teach and a love of teaching. His interest in the law came later, in his mid-twenties. A few years

after getting his law degree, Geary began teaching at St. Mary’s, and he did that for 41 years, retiring in 2023. He wrote extensively —legal treatises, textbooks, newspaper opinion pieces, and articles published in the Texas Bar Journal, the Voice for the Defense, and in peer-reviewed law journals. The best teachers reach far more than just those who sit in their classrooms. David Guinn was right—Geary Reamey “sent mighty ripples through the pond.”

1. David Jr.—a Past President of the Texas Criminal Defense Lawyers Association, an excellent criminal defense lawyer, and an unusually thoughtful member of our profession—is also the son of legendary Law Professor David Guinn, who taught Constitutional Law and array of other subjects for years at Baylor University School of Law, and was known as “the Godfather,” because of his large influence on generations of Baylor Lawyers.

Geary died on November 3, 2025, loved by family and friends, respected by colleagues and those who knew and relied on his scholarship, and remembered by thousands he taught, in and out of the classroom. He is survived by many, including Kay, his wife and constant companion, who he described as his “favorite lawyer”, and their daughter Anne. Professors Mather and Ariens worked closely with Geary for years at St. Mary’s and wrote beautiful tributes to him when he retired. I hope you can find the time to read what they wrote.2 After thinking about it for a few weeks I decided the best way I could honor my friend was to re-publish some of his teachings. Here are some of my favorites.

preemption argument, so I did not have a Texas case, but I learned something about precedent that isn’t usually taught in law school.”4 “Remember that fascist Mussolini made Italian trains run on time, but simultaneously demonstrated to the world that society is sometimes better off with unreliable trains.”5 A dreamer, and dream enabler:

“‘That’s awesome.’—said by anyone who doesn’t know what awesome really means.”3

“As I remind every class of students, ‘take what you do seriously, but do not ever take yourself too seriously.’ Make sure your dreams encompass your whole life and not just your working hours. And leave time to help others, including clients, friends, and family members, to find their dreams and realize those dreams. That work is the type which is truly fulfilling, and the success of others will become your reward.”6

“The judge looked me up and down, and said in a north Texas drawl, ‘Counselor, I don’t care what the Yew Nited States Soopreme Court says. If you don’t have a Texas case, I don’t want to hear it.’ I was making a federal

“Our profession is filled with people who were drawn to law by a desire to improve the lives of their clients and to contribute to the greater good. ... [N]ever lose sight of that dream.”7

Reamey, the curmudgeon:

2. Victoria Mather, Professor Reamey: A Mentor and a Friend, 54 St. Mary’s L.J. 315 (2023); Michael S. Ariens, A Tribute to Gerald S. "Geary" Reamey, 54 St. Mary’s L.J. 311 (2023). Vincent Johnson, another colleague, has published several lengthy articles on the history of St. Mary’s University School of Law that refer throughout to Professor Reamey. E.g., Vincent R. Johnson, Turning Points in the History of St. Mary’s University School of Law (1980–1988), 50 St. Mary’s L.J. 521 (2019); Vincent R. Johnson, Rehnquist, Innsbruck, and St. Mary’s University, 38 St. Mary’s L.J. (2006). 3. Susie P. Gonzalez, Getting to Know Alumni Couple Geary and Kay Reamey, Trinity University News, Feb. 2, 2017. 4. Gerald S. Reamey, Life in the Early Days of Lawyer Advertising: Personal Recollections of a Bates Baby, 37 St. Mary’s L. J. 887, 889 (2006). 5. Gerald S. Reamey, Why the Criminal Justice System Can’t Control Crime, St. Mary’s University Gold & Blue 5 (Spring/Summer 1990). 6. Gerald S. Reamey, The Lawyer As Dream Enabler, 13 St. Mary’s J. Legal Mal. & Ethics 34, 45 (2023). 7. Id. at 44.

The teacher: “My interest in the law was recent, but I had long been drawn to the teaching profession. That interest remained strong through law school, and with the kind of hubris that is often found among the young and the ignorant, I hoped one day to teach law.”8 “My teaching career in law has made me supremely happy. Unlike those who constantly want what they do not have, I love exactly what I do have: I live in a beautiful and diverse community; I spend my days doing something that makes me truly happy and benefits others; I love my family and friends, and they love me.”9 Preparation is more important than...: “Generations of law students have now heard me extol the virtue of preparation above all others. While it is true, even the best preparation will never beat luck, luck is fickle and not subject to our control. On the other hand, we totally control the amount and quality of the preparation we put into any project. I discovered preparation is more important than good looks, nice clothes, a shiny leather briefcase, eloquence, experience, or even intelligence. Student attorneys in a law school’s clinical program routinely prevail over capable, expe-

rienced lawyers because the students are simply better prepared.... For every one of your clients, their case is the most important one in the world. Prepare as if it is also your most important case.”10 “The Fourth Amendment is not just a faded scrap of paper”: “Even if the Supreme Court wished to facilitate the detection and prosecution of crime, it has a higher purpose. It must safeguard the constitutional protections of those not within the criminal justice system, those not before the trial court accused of crime. Only the judicial branch has both the power and the freedom to insure that the Fourth Amendment is not just a faded scrap of paper housed in the National Archives.”11 “If the United States Supreme Court has indulged the government’s desire to facilitate the finding of criminal evidence at the expense of personal liberty, the court of criminal appeals need not follow, nor set, the example. It has been said that the word ‘automobile’ is not a talisman before which the fourth amendment fades away and disappears. This sentiment has been echoed in Texas. It now appears, however, that the word ‘inventory’ has become such a talisman.”12

8. Gerald S. Reamey, Life in the Early Days of Lawyer Advertising: Personal Recollections of a Bates Baby, 37 St. Mary’s L. J. 887, 888 (2006). 9. Gerald S. Reamey, The Lawyer As Dream Enabler, 13 St. Mary’s J. Legal Mal. & Ethics 34, 44 (2023). 10. Id. at 39. 11. Gerald S. Reamey, When Special Needs Meet Probable Cause: Denying the Devil Benefit of Law, 19 Hastings Const. L.Q. 295, 341 (1992). 12. Gerald S. Reamey, Michael H. Bassett, & John A. Molchan, The Permissible Scope of Texas Automobile Inventory

“In the last several years a war has been waged on the Fourth Amendment, along with wars on drugs and on crime generally. Presumably, the former has been undertaken in an effort to facilitate the latter. In all candor, the Fourth Amendment, to the extent that it has been taken seriously, is frequently a formidable obstacle to law enforcement. This fact is not cause for alarm; rather, it shows that the purpose of the amendment is at least sometimes realized. Restraints on government power form the essence of the Bill of Rights and particularly of the Fourth Amendment.”13 “Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause ‘requirement’ and the warrant ‘requirement’ were surprised to learn, especially in the case of the former, that these ‘requirements’ were not required at all.”14

“In spite of efforts by some members of the Supreme Court to faithfully and consistently interpret privacy protection from the government in an originalist fashion, the Fourth Amendment cases remain, as Roger Dworkin said in 1973, ‘a mess.’"15 Result-oriented, illogical, unpersuasive judicial decisions, and article 14.03(a)(1): “It is a small wonder that today’s courts find the statute confusing; and confusion, whether advertent or inadvertent, invites result-oriented, illogical, or unpersuasive judicial decisions. Courts’ attempts to make sense of article 14.03(a)(1) arguably have failed in each of these ways over the statute’s long life.”16 “Apparently, a court may resolve virtually any challenge to a warrantless arrest simply by characterizing the place in which it occurred as suspicious. Whatever article 14.03(a)(1) originally was intended to mean, surely it was not intended to mean nothing.”17 “The starting premise for any exception to a rule of law must be that the exception not swallow the rule. Texas cases interpreting the suspicious places requirement come danger-

Searches in the Aftermath of Colorado v. Bertine: A Talisman is Created, 18 Tex. Tech L. Rev. 1165, 1191 (1987). 13. Gerald S. Reamey, When Special Needs Meet Probable Cause: Denying the Devil Benefit of Law, 19 Hastings Const. L.Q. 295, 295-96 (1992). 14. Gerald S. Reamey, What’s Fear Got to do With It?: The "Armed and Dangerous" Requirement of Terry, 100 Marq. L. Rev. 231, 231 (2016). 15. Gerald S. Reamey, Constitutional Shapeshifting: Giving the Fourth Amendment Substance in the Technology Driven World of Criminal Investigation, 14 Stan. J. C. R. & C. L. 201, 231 (2018). 16. Gerald S. Reamey, Arrests in Texas’s "Suspicious Places": A Rule in Search of Reason, Tex. Tech L. Rev. 931, 932 (2000). 17. Id. at 968.

ously close to doing just that.”18 The Michael Morton Act: “The risk of wrongful conviction is high in an adversarial system in which defendants are systematically denied information about the state’s case until it is revealed at trial. In the case of a Texas defendant named Michael Morton, this risk was realized.”19 “If ‘the truth shall set you free,’ or better, if the truth has the power to prevent the accused from being wrongfully imprisoned, then more disclosure of information in the possession of the state better serves the interest of justice than less disclosure. In essence, this simple argument motivated the 2013 amendment to article 39.14, known as the Michael Morton Act.”20 “[T]he sweep of the disclosure requirement [by the Michael Morton Act] is breathtaking in comparison with what previously existed.”21 “In criminal cases, it is time to temper adversarial habits with the recognition on both sides that nothing is of more importance to the credibility of the American criminal justice system than rigorously hewing to the rule of law—not even doing justice in the individual case. Every wrongful conviction, every

subversion of the search for truth, undermines society’s confidence that criminal justice in Texas is not just a rigged lottery in which the stakes are incredibly high. The Michael Morton Act is not a panacea for these ills, but it has the potential to instill a heightened reliability into a system damaged by its revealed flaws.” 22

Lawyering: “Upon graduation, I accepted a partnership with a sole practitioner for whom I had clerked since my first year of law school. Some of my classmates were aghast that I would not pursue a position, and the salary, with a large civil firm in the metropolis where I lived. Unlike many of my rational classmates, I found that I just did not care who got Blackacre, or which big corporation won the antitrust case.”23 “To be a complete lawyer, and a complete person, you must have empathy.... If you are not empathetic, you simply cannot be a good lawyer in any complete sense. Empathy is the ability to put yourself in the place of others, to feel what they must feel, to see the world from their perspective. This skill requires you to mentally step outside of yourself and inhabit the world of others (many of whom live in a reality that is very different from your own).

18. Id. at 974. 19. Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not, 48 Tex. Tech L. Rev. 893, 899 (2016). 20. Id. at 903. 21. Id. at 904. 22. Id. at 929. 23. Gerald S. Reamey, Life in the Early Days of Lawyer Advertising: Personal Recollections of a Bates Baby, 37 St. Mary’s L. J. 887, 888 (2006).

Only by doing this can you be the complete lawyer, counselor, and guide that your client needs. If you do not have empathy, get some. It is essential.”24 “As I have heard some people say about marriage, ‘a bad one is horrible, but a good one is better than anything,’ it is also true of your relationship with a mentor. Find a good mentor, learn from a good mentor, and then be a good mentor.”25

“My final reminder is this: it is an honor to represent people, just as it is an honor to teach them. Never forget that your clients are entrusting to you their property, their closest and most important relationships, and, in some cases, their liberty and their lives. How humbling is that?”26

Michael S. Ariens Aloysius A. Leopold Professor of Law St. Mary’s University School of Law Gerald S. Reamey, known to all his friends as Geary, was a man of the highest integrity. During the 37 years we shared at St. Mary’s University School of Law, Geary always put the interests of the School and its students ahead of any personal desires. When Geary argued for a particular policy, his goal was to better the School for the sake of its students. When he disagreed with an approach proposed by an apparent majority, he laid out his arguments and then followed the faculty’s decision. When he served as Associate Dean, he gave the Dean unvarnished and occasionally unwanted advice. When necessary, he made those same arguments to the University’s leadership, even at some cost to himself. In his

24. 25. 26.

more than 40 years at St. Mary’s, he set a standard for selfless professionalism. Geary taught Criminal Law, Constitutional Criminal Procedure, Texas Criminal Procedure, Constitutional Law, and other courses to approximately 5,000 law students, and probably a lopsided majority of those who are reading these words. He challenged his students in class; he prodded them to think more clearly; and he reminded them regularly that lawyers representing the state and the accused were an embodiment of and essential to the preservation of the rule of law. He was lauded by his students, and graduates sought him out when visiting campus, often decades after he

Gerald S. Reamey, The Lawyer As Dream Enabler, 13 St. Mary’s J. Legal Mal. & Ethics 34, 40 (2023). Id. at 43. Id. at 45.

taught them.

teacher, scholar, and community servant.

Geary was a serious scholar. He challenged lawyers and judges to re-think doctrines that had seen better days. He knew he was often tilting at windmills, but did so with the belief that change could occur. He was a regular reader of my scholarship before publication, offering salient and critical advice that markedly improved my writings.

We were office neighbors for over twenty years. I often dropped by to interrupt him to ask something that aided me, not him. He greeted me both cheerfully and with just a hint of his latent sarcasm. He was always ready to set his work aside to assist me, for which I am deeply grateful.

Geary also served on innumerable committees of the School of Law and the broader University. He volunteered his time to a number of causes, including aiding veterans with legal issues and serving on United Way. He was the rare professor who excelled in all his duties, as

Geary was a great friend. I will cherish our successes, but even more so our failures. It was only in those failures that I learned from Geary how to serve our students and the institution with optimism and care for all of those on whom we have some impact. I will miss him dearly.

David Dittfurth Professor of Law, St. Mary’s University Gerald Reamey came to St. Mary’s Law School in 1982. Not long after they arrived, Geary and Kay became my friends and have remained so over the years. As a professor, he was an excellent teacher and scholar, and a great favorite of the students. One of his most significant contributions to the school, however, occurred when he and Vincent Johnson created the Law School’s Innsbruck summer program in Austria. They created the program and the relationship with Innsbruck

University through hard work and dedication. As co-director of that program, Geary hosted distinguished visiting professors such as Chief Justices Rehnquist and Roberts, and Justices O’Connor, Ginsburg, Stevens, and Scalia. Geary gave his best to the Law School, and his achievements were extraordinary. And no matter what difficulties confronted him, he was always pleasant, funny, and thoughtful. I will miss him.

Winston F. Erevelles Ph.D., F. ABET - President, St. Mary’s University I first met Professor Geary Reamey when I was a candidate for the position of Dean of the 20

School of Science, Engineering and Technology (SET) in 2008. The University selected

him to lead the SET Dean Search Committee, and I got to know Gearey over the course of the search. I also got to meet Kay Reamey and enjoy a meal with them, finding a shared love for Indian food. That was the first of several meals, not to mention social events on and off campus. What started as a professional relationship quickly evolved into a friendship that endured over my 17 years at St. Mary’s—as Dean, Dean Emeritus, and now as President. It has been my joy and privilege to call Geary and Kay Reamey my friends—they are indeed

a distinguished and gracious couple in every sense of the word. Geary was a consummate professional, warm, caring, and incredibly talented, and he had quite a sense of humor. I am immensely grateful for his many contributions and decades of dedicated service to St. Mary’s University and our Law School. I miss Geary so very much. My life is so much richer because of his handprints on it. Rest in peace, dear friend.

Andrew Froelich Any doubt as to what type of law I wanted to practice ended the day Professor Reamey walked into the room and began the first day of the Criminal Law class my first year of law school. It was... fun? The Socratic method rarely brings joy, but his lectures were so filled

with his humor. I took every class I could with him. It was the ideal way to learn a profession—his wit, his intellect, the way he smiled when we understood the point of the case. I thank him for his inspiration and for helping me find my way.

Cynthia L. Hampton Gerald S. Reamey was my teacher for three years. But he was so much more. He became my mentor and my friend. He hired me as his research assistant, and I was honored when he gave me credit in his book. When Keith and I got married he and Kay came to our wedding. Anne was there too, a beautiful child of about six. She helped decorate the getaway car with big pink ribbons. During the years following, we had many social interactions and dinners together.

But I think I’m supposed to be writing about a law school memory. There are so many that it’s hard to pick just one. There was the time that a fellow student accused him of wearing a toupee. How dare he? Prof. Reamey indignantly pushed up his hair to reveal his perfect hairline. Not a hint of fake hair. I think the funniest one was the time I and a friend decided to fill his office with balloons for his birthday. While he was off teaching a

class we filled the balloons with helium and stuffed them into his office. They were everywhere—the desk, the chair, the floor—the entire space was full of multicolored orbs. I didn’t really know how he would react. Would he get mad and have us expelled? Would he fire me from my job as his research assistant? No, of course not. He calmly en-

tered the office and sat in his chair, not the least bit perturbed. I’m sure he offered some sarcastic remarks that I can’t recall now, but he was definitely amused. He was, after all, the coolest professor at the school. So to top it all off I sat on his lap and somebody snapped a photo!! Good times!

Keith S. Hampton I would never have become a criminal defense attorney were it not for Professor Reamey. In fact, I would never have become a lawyer at all. He saved my career before inspiring me to pursue it. It was my first month in law school. I had no idea what was expected of me. Law school was my second choice from graduate school, and I was absorbing the information I was given in an unfortunately entirely academic way. I quickly became confused about how I would be tested. He seemed like a professor I could approach for a practice test. He agreed. It was very early in my first semester, so maybe he was intrigued. Based on a few lectures, I wrote out my general analysis. For extra credit, I decided to include my research into 13th century English criminal law, believing this would earn me extra credit and earn praise.

With the greatest confidence, I delivered to him my essay. “You will flunk law school if you write this,” he told me. “It means nothing here.” He was kind. It was the truth that was brutal. “This is not what we’re doing here,” he told me as I stared blankly in shock. He told me about spotting legal issues and demonstrating an accurate resolution of the current law. I think I said, “Well, okay,” and I do remember that I asked, “Is this for every class?” I found it all confusing, and eventually got the hang of it, but only because he made time to answer my painfully naive and uninformed questions as those first weeks went by. I became a lawyer only because Professor Reamey was the perfect teacher. He taught me how to learn law. But his influence was much deeper for me than his teaching abilities. When I graduated, I was still persisting in my original plan to become “the consumer’s lawyer,” taking DTPA cases for people

harmed by business fraud. I found myself in private practice handling civil cases. The money was good, but I found myself working on the lower-paying criminal cases. It finally dawned on me that this was my passion—one he inspired in me. I found no joy in anything other than criminal defense. When I told him about my conversion, he laughed. “You’re

surprised?” he asked wryly. He was a man of deep integrity, a devilish sense of humor and a brilliant legal scholar. He was my mentor, teacher and lifelong friend. He changed the course of my life, and his good company will linger fondly in my memories.

Vincent R. Johnson Emeritus Professor of Law

Geary Reamey was a towering member of the St. Mary’s University law faculty for more than 40 years. His expertise enriched countless parts of the law program, most notably criminal law and procedure, but also comparative law and international law. Reamey held students to high standards and was lauded by

students for his wit and originality in the classroom. Reamey will be long missed and fondly remembered for his unparalleled contribution to legal scholarship and effective teaching and counseling. Reamey was a star who inspired others to do great things.

Victoria Mather Professor of Law They say you should never meet your heroes, but I have to disagree. I have been blessed with many heroes surrounding me during my life—including Geary Reamey. I first met Geary in August of 1985, when I was a brand-new law professor just finding my way. From the very beginning, Geary became not only a trusted colleague but a mentor, a guide, and a true friend. So let me tell you how Geary is one of my heroes. Geary is my hero as a professor:

As a scholar, he published five books and more than forty articles, taught more than fifteen different courses. He even won an award from the State Bar for one of his articles, which is a real accomplishment for those of us in the “ivory tower” of academia. In the classroom, he demanded excellence from his students, but he gave them even more in return—care, respect, and an unwavering belief in their potential. He was a pioneer in both substance and style, always advocating for teaching excellence as the heart of 23

what we do. He actually wrote and published a book called “How Not to Be a Terrible Teacher.” Geary is my hero as a leader: He held countless leadership roles at St. Mary’s, at Trinity and in the community. He was a man who led with wisdom, kindness, and grace. Geary spoke Truth to power before it was cool. He was never afraid to speak his mind— even when it wasn’t popular—and he was almost always right. He lived his life with integrity, doing the right thing at the right time for the right reason. He wasn’t afraid and helped me not to be afraid. Geary is my hero as an individual who was interesting and fun: Geary was interested in travel and international legal education. Geary co-founded our Innsbruck program. Because of him, generations of students and faculty experienced the law—and the world—in new ways. He did not just visit Austria or show up to lead the program; he forged lasting relationships with individuals abroad. I’ll never forget watching him receive the Culture Medal of Honor from the City of Innsbruck, delivering his acceptance speech in flawless German. It was a moment that perfectly captured his intellect, humility, and international spirit. Geary played the saxophone, was a great cook, an excellent ballroom and country-

western dancer, was handy with tools. He was very active in service and got me involved too—Veteran’s Clinic, United Way, Texas Bar Foundation, etc. Post retirement he continued work as a judge, a board member at the Rape Crisis Center and a lecturer to seniors (even though he was now in that group!). Geary was funny. Some call it a dry wit, some might say there were lapses into sarcasm. But he was never mean and could also laugh at himself. Finally, Geary is my hero as a friend: In a friendship that transcended work Geary and Kay have been an important part of my life for four decades—40 years! They were there for me through life’s greatest joys and hardest trials—births, weddings, even funerals —just as I tried to be there for them. Geary enjoyed his life, cherished his family and valued his friends. He told more than us that he had no regrets. Sometimes I wish I could be more like Geary. But one of the other ways that he is my hero is that he was always himself, always who he really was. And I think we could all wish for nothing more than to be like him in always living as our true selves.

Michael McCrum I join the vast chorus of enthusiasts who rejoice in having had the opportunity to know and be blessed by Geary Reamey. I came to know this great man in August 1982, my first semester at St. Mary’s Law School. Geary was beginning his career as a professor, and I was fortunate to have him as our instructor for Criminal Law. This was a subject deeply personal to me, not only because I had majored in Criminal Justice five years prior, but I arrived at St. Mary’s having just left my job as a Dallas Police Officer in order to pursue an interest in being a lawyer. It was not long into the Criminal Law course that Professor Reamey discovered I had just served as a Dallas officer and the fact that he and I knew many people in common. He had just left his position as legal advisor to the Irving Police Department and instructor at several police academies in the Dallas/Fort Worth area. He began to call on me often (with a wink and a smile) to ask that I give the class my “police” perspective on constitutional issues of search, seizure, confessions and the like. This, of course, given the richness of his intellectual acuity, quick wit, deep wisdom, extensive law enforcement experience, and humor, allowed him to generate a healthy, humorous, challenging and vibrant discussion. Particularly because much of our criminal justice case law stems from bad or misguided police decisions, Professor Reamey loved seizing the opportunity to ask that I de-

fend law enforcement’s position and then invite the competing (and almost unanimous) “civil rights” and “criminal defense” perspective from my fellow students. He certainly made it fun and stimulating, but more than that—while sincerely acknowledging a policeman’s role in protecting our communities while literally risking life and limb, Professor Reamey nevertheless pushed me and others to understand and appreciate at a deep level the foundational and worthy principles that form the bedrock of our existence in this country. Through the process, I came to deeply admire all that was rooted in his teaching and in him—a deep love for humanity, fairness, and justice. And so, I was deeply honored when he asked me to serve one year as his law clerk to help him author a new book on Criminal Law and update his published treatise on Criminal Procedure. Our countless conversations deepened my love for justice. After law school, Professor Reamey and I stayed connected. It was not unusual for me to reach out to him when I was faced with thorny issues as a federal prosecutor and later as a criminal defense attorney. In fact, he was one of two people that I have reached out to during my forty years as an attorney. Several years ago, he encouraged me to apply for a full-time position as a professor at St. Mary’s in the field of criminal law. Although I did not get the job, I was touched by the depth 25

of his words of disappointment and encouragement to someday try again. Whereas most professors and mentors along the way have taught me the mechanics, substance and/or strategy of practicing law, Pro-

fessor Reamey is the single mentor who taught me how to feel about what I do and why I should always strive to do it well. He affected my life to a great degree. I am honored to have known him.

Patty Roberts

Dean, St. Mary’s University School of Law We give thanks for the legacy that Gerald “Geary” Reamey, J.D., leaves at the St. Mary’s University School of Law after his sudden passing on Nov. 3. We are praying for his wife, Kay; their daughter, Anne; their family members; Geary’s dear friends and devoted former students. A celebration of life for Geary will be held Friday, Jan. 23, 2026, at Trinity University, where Geary and Kay earned their undergraduate degrees. After graduating from Southern Methodist University’s Dedman School of Law in 1976 with his J.D., Geary practiced law in the Dallas-Fort Worth area and served as the legal adviser for the Irving Police Department. He also earned his LL.M. at SMU in 1982. In 1982, Geary began his long and successful career as a member of the faculty at St. Mary’s Law. He retired as a Professor Emeritus of Law in 2023 with 41 years of dedicated service to our law school, legal education and his students.

The author of many books and law review articles, Geary is a former Associate Dean for Academic Affairs at St. Mary’s Law, and cofounder and former co-director of the St. Mary’s Law Institute on World Legal Problems in Innsbruck, Austria. The recipient of several teaching awards, including for his work in judicial education, Geary was awarded the Culture Medal of Honor by the City of Innsbruck. He taught, wrote and consulted in the areas of criminal law, criminal procedure and law enforcement issues. Geary was a member of the Order of the Coif and the American Law Institute. He had been a faculty member for the Texas Municipal Courts Education Center programs since the founding of the center. Geary also served as judge of the Municipal Court of Shavano Park. As Michael Ariens, J.D., wrote in a tribute published in the St. Mary’s Law Journal to his dear friend, Geary, in honor of his retirement in 2023, “… Geary’s counsel and advice have been invaluable to me and to many others on the faculty. When I am uncertain about any

issue, I ask Geary about it, and I happily receive blunt advice. I will miss his biting wit and thorough assessments in faculty meetings. I will miss his integrity in every action and decision he took in professional service…” Although my time with Geary was unfortunately much shorter, I appreciated Geary’s devotion to helping his law students and his colleagues excel, and his commitment to making the School of Law the best it could be. Geary was universally beloved by those blessed to know him, and we will miss his humor, wise

judgment and expertise. In Geary’s book, How Not to be a Terrible Teacher (And Maybe be a Good One), he emphasized that a law teacher’s job is not only to teach legal material but to persuade students to serve others. Geary’s legacy of four decades of successful law graduates who model his service to others is evidence that he fulfilled that role every day at St. Mary’s, and our community is all the better for it. Geary’s loss is deeply felt by those fortunate enough to have known him.

Gretchen Sims Sween Ph.D., J.D.

I cannot count myself among the fortunate ones who were students or colleagues of the very well-respected Professor Reamey. But over a year ago, when my client, Robert Roberson, was facing the threat of execution (for the second but not the last time), I turned to Reamey for some guidance. He was then “retired” from serving as a professor, which means he was busy wearing several other hats

(including that of municipal judge). Yet he responded immediately—with warmth, insight, and practical advice. I felt comforted in a stressful time that a legal lion like him would happily offer insights in a manner that confirmed all of the great things I had heard about him over the years. May his legacy continue to serve us as a beacon in dark times.

Even Criminal Defense Lawyers Need an Exit Strategy Trisha Morales Padia

What Happens if a Texas Lawyer Dies Without a Plan

•

The process can take time, leaving clients unprotected.

If a lawyer dies without making any arrangements:

•

The lawyer’s estate or family cannot continue running the practice without proper legal authority.

• The State Bar of Texas (under Texas Disciplinary Rules of Professional Conduct Rule 13.03) may petition a court to appoint a custodian attorney to protect client interests.

• The firm’s trust account and client funds must be handled carefully—any errors can expose the estate to liability.

•

2. Ethical & Professional Obligations

This custodian will secure files, notify clients, and wind down affairs, but: They are not obligated to continue representing clients.

Under the Texas Disciplinary Rules and the ABA Model Rule 1.3 (Comment 5):

Lawyers have a duty to plan for unexpected interruptions in practice—including death or incapacity.

• For PLLCs or PCs, your Operating Agreement or Shareholder Agreement should specify:

This means every solo or managing attorney should have:

•

What happens to ownership interest upon death.

• A succession plan or “designated attorney” in writing.

•

Buy-sell provisions or automatic transfer to another attorney.

• A system for secure access to:

•

Continuity of management authority.

•

Client list and contact information

c. Plan for Trust Accounts

•

Calendars and deadlines

•

Trust and operating account details

• Have clear written instructions authorizing your successor to access and disburse IOLTA funds.

•

Passwords (via a secure vault or sealed instruction)

• Notify your bank in advance, and document this in your succession plan.

3. Steps to Protect Yourself and Your Firm a. Designate a Successor Attorney • Formally appoint a “custodian attorney” or “transition attorney” in your engagement letters or internal firm documents. • File that designation with the State Bar if possible (some local bars maintain successor lists). b. Update Organizational Documents

d. Secure Digital Access • Use a password manager (like 1Password or LastPass Business) with an emergency access feature. • Store credentials, client lists, and calendars securely and share access only with your designated successor. e. Protect the Value of Your Practice • Consider law practice continuation agreements—where another lawyer or firm agrees to step in and manage or purchase your firm in the event of your death or disability. 29

• Evaluate practice sale options under the Texas Disciplinary Rules, which allows the sale of a law practice (or its area of practice) if ethical requirements are met.

• Ensure your family knows who to contact and where critical firm documents are stored.

4. Planning Beyond the Practice

• Law Office “Death or Disability Plan” binder

• Include your law practice in your personal estate plan—specifically, name your successor or executor with legal authority to coordinate with your custodian attorney. • Discuss malpractice insurance coverage for posthumous claims or tail coverage.

5. Sample Tools to Create

• Successor Attorney Agreement • Client Notification Template • Checklist for Transition (files, accounts, active cases) • Password & Access Inventory Sheet

SAN ANTONIO

DEFENDER

We all Love a Checklist! So here you go.

Protecting Your Clients, Your Legacy, and Your Loved Ones 1. Identify Your Successor or Custodian Attorney Name a Successor Attorney (a trusted Texas-licensed lawyer) who will: • Notify clients and courts of your death or incapacity • Secure client files, property, and funds • Manage trust accounts • Wind down or transfer cases as appropriate Obtain written consent from the successor and outline their duties in a Successor Attorney Agreement. Include their contact information in your: • Engagement letters • Office manual

• Bank account and IOLTA information • Vendor logins (phone, internet, software) • Subscription and license information Store securely (encrypted or passwordprotected) and give your successor access instructions. Use a password manager with emergency access enabled (e.g., 1Password, Dashlane). 3. Secure Your Trust and Operating Accounts Keep all trust and operating accounts clearly labeled. Add your successor attorney as an emergency authorized signatory or list them in a contingent access plan with your bank. Keep up-to-date ledgers of client trust balances.

• Estate planning documents 2. Organize Your Law Firm Information

Include detailed trust account instructions in your successor plan.

Maintain including:

4. Update Your Entity & Estate Documents

master

firm

directory,

• Client contact list and active matters • Calendar of deadlines and hearings

For PLLCs/PCs: Review and update your Operating Agreement or Shareholder Agreement to specify:

• What happens to ownership interest upon death or incapacity • Buy-sell or transfer provisions • Authority for another attorney to manage operations temporarily Include your firm as an asset in your Will or Trust, specifying how the successor attorney should coordinate with your Executor. Review life insurance or key person insurance to protect your family or buyout partners. 5. Maintain Ethical Compliance Review Texas Disciplinary Rule 13.03 (Custodian Attorney Appointment) Include in your plan:

• Vendors and service providers Educate staff on: • Who to contact if something happens to you • Where critical information is stored • How to continue client communication temporarily 7. Maintain Insurance and Coverage Ensure malpractice coverage includes tail or extended reporting coverage. Confirm your successor attorney is covered under your policy or can obtain temporary coverage. Review business interruption or key person insurance policies annually.

• How clients will be notified

8. Review and Update Annually

• How files will be returned or destroyed

Review this plan every year (or when staff, firm structure, or key systems change).

• How unearned retainers or client property will be handled Ensure all engagement agreements disclose your succession plan and obtain client consent if needed. 6. Prepare Client & Staff Communications Draft template notices for: • Clients (active and former) • Courts and opposing counsel 32

Keep a signed, dated copy in: • Your firm’s compliance binder • Your estate plan binder • Your successor attorney’s possession

CASE LAW UPDATE

Mary Moore & Luke Keathley

FOURTH COURT OF APPEALS UPDATES

Ex parte Alonso Islas Sampiero, 04-23-00728-CR, __ S.W.3d __ (Tex. App.—San Antonio Aug. 27, 2025) Challenge to Court’s Requirement of In-Person Appearance Is Not Cognizable Through Application for Pretrial Writ of Habeas Corpus Alonso Islas Sampiero, a non-citizen, was arrested for trespassing on private property, evading arrest, and resisting arrest in Zapata County. After the State filed an information charging him with criminal trespass, Sampiero was released on personal bond in the amount

of $250. The Appearance Bond and Notice of Setting stated that Sampiero would appear before the Zapata County Court each time his case was set for hearing. At some point after Sampiero signed those documents, he was removed from the country. He appeared for his arraignment and for two pretrial hearings virtually via Zoom. At the pretrial hearing in July 2023, Sampiero was ordered to appear in person for his next pretrial hearing in August 2023, and his attorney objected because Sampiero had no lawful way to enter the United States. The trial court maintained that Sampiero must attend the pretrial hearing in person. On August 1, 2023, Sampiero filed his Pretrial Application for Habeas Corpus, argu-

ing the order requiring him to appear in person is a bond condition and requesting it be modified. Justice Lori Massey Brisette, writing for the majority, emphasized that pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. She also emphasized that whether a claim is cognizable on pretrial habeas is a threshold issue that must be addressed before reaching the merits of the claim. Justice Brisette ultimately found Sampiero’s claim—that he was unreasonably restrained by the agreement that he bond out in exchange for the condition to appear—to be incognizable through an application for pretrial writ of habeas corpus for four reasons: 1. Sampiero is not challenging a condition of his bond. Rather, Sampiero is challenging the very purpose of his bond—to ensure his appearance at trial. Sampiero argues that notice by the court to appear in person is a modifiable bond condition and that the condition violates his constitutional right. However, the purpose of pretrial bail is to secure the defendant’s presence at trial. Removing the requirement that the defendant appear in person when ordered by the trial court removes the bond altogether. Were this court to treat such requirement as a modifiable bond condition, the floodgates would open to requests for habeas corpus relief from all defendants who have consented to appear in exchange for release pending trial.

2. Factors courts consider in determining cognizability weigh against allowing Sampiero to bring this challenge. For example, this court previously held in Ex parte Dominguez Ortiz, 668 S.W.3d 126, that a claim is premature where the conditions that could make appellant’s restraint unlawful would occur only if trial commences in his absence. 3. The Texas Court of Criminal Appeals has held that a claim for pretrial writ is not cognizable where, “even if resolved in favor of the applicants, it would not result in immediate release.” Ex parte Couch, 678 S.W.3d 1, 4 (Tex. Crim. App. 2023) (quoting Ex parte Weise, 55 S.W.3d 617, 619). 4. A court must look at whether protections would be undermined if these issues were not cognizable. This consideration weighs in favor of cognizability when it comes to issues such as double jeopardy and challenges to the denial of bail. However, here, the issue only ripens as the process evolves into a failure to appear and bond forfeiture proceeding. Justice Lori I. Valenzuela wrote a separate, concurring opinion. She would hold that Sampiero’s pretrial writ of habeas corpus was cognizable but lacked merit. Regarding the question of cognizability, Justice Valenzuela looked to the Texas Code of Criminal Procedure: “courts consider, inter alia, whether the applicant is ‘restrained,’ and, if so, whether the requested relief would result in applicant’s 35

‘immediate release.’” She would argue that a writ granting relief from the challenged restraint amounts to release from that restraint, even if not from all restraints, and that Sampiero’s claim, though not meritorious, fits squarely into this line of reasoning.

State v. Matthew Martin, 04-23-01087-CR, __ S.W.3d __ (Tex. App.—San Antonio Aug. 28, 2025) Article 38.23 Requires Exclusion Where a Private Person Committed Crimes and Police Officer Failed to Act Reasonably When Searching Defendant’s Personal Property The trial court suppressed evidence alleged to constitute child pornography that was obtained from a search of Matthew Martin’s phone by his ex-girlfriend and police officers. Martin argued that the private party’s actions violated two criminal laws—theft and breach of computer security—therefore triggering the statutory exclusionary rule under Article 38.23(a) of the Texas Code of Criminal Procedure. The State argued that Martin’s ex-girlfriend, did not violate any laws and that the warrant later obtained by police allowed for an exception to statutory exclusion under Article 38.23(b). The court looked at each alleged crime in turn. Either crime, if proved, would allow for the exclusion of the evidence. Regarding

theft, the court found that evidence introduced at the Franks hearing established that Martin’s ex-girlfriend committed theft of Martin’s cell phone. Martin was the owner of the cell phone when his ex-girlfriend removed it from the safe because he had a greater right to possess the cell phone than his ex-girlfriend at the time. Also, Martin never gave his exgirlfriend consent to take the phone when she moved out of his home. When his ex-girlfriend did so anyway, she deprived Martin of the cell phone. Regarding breach of computer security, the issue was whether Martin apparently assented to his ex-girlfriend’s search of his cell phone. The appellate court agreed with the trial court’s conclusion that the ex-girlfriend knew she lacked “actual or real agreement” or assent that was “clear or manifest to the understanding” such that she could have had Martin’s consent to access the files on Martin’s phone on this occasion. Baird v. State, 398 S.W.3d 220, 238 (Tex. Crim. App. 2013). She did not have lawful possession, she had told Martin she had previously destroyed the cell phone in question, the cell phone was passcode protected, and the evidence shows Martin was "possessive” of his cell phone. The court also reviewed whether the evidence obtained through the police’s forensic search of the phone, authorized by a warrant, must be suppressed. The trial court suppressed the evidence because it flowed from a violation of the law and must be suppressed pursuant to

the statutory exclusion rule. The appellate court further found the statutory good-faith exception was not met. Article 38.23(b) provides, “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Tex. Code Crim. Proc. Ann. Art. 38.23(B). Here, the court followed the line of reasoning from McClintock v. State and determined the first prong was not met: “(1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be ‘close enough to the line of validity’ that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant […] was not tainted by unconstitutional conduct.” McClintock v. State, 541 S.W.3d 63, 71-72 (Tex. Crim. App. 2017). While the officer conducted a reasonable investigation before preparing an affidavit to obtain a warrant, he did not act reasonably when he failed to appreciate the timeline and circumstances revealed by that investigation, which would have allowed him to determine that Martin’s ex-girlfriend violated criminal law in obtaining his cell phone.

Jo Anne Paez v. State, 04-24-00824-CR Sept. 24, 2025

Dissenting Justice Disagrees that Officer Had Reasonable Suspicion to Warrant a Traffic Stop

Officer Barry Ray pulled over Jo Anne Paez because he suspected her of driving while intoxicated. The traffic stop led to her arrest. Ms. Paez filed a pretrial motion to suppress the evidence resulting from the traffic stop. At the pretrial hearing on the motion to suppress, Officer Ray provided four reasons for pulling over Ms. Paez that night, and the trial court ultimately denied Ms. Paez’s motion. On appeal, Ms. Paez argued the trial court abused its discretion when it denied her motion because Officer Ray did not specify facts that would have given him reasonable suspicion to stop her for driving while intoxicated that night. The majority, in an opinion authored by Chief Justice Rebeca Martinez, reviewed the four reasons provided by Officer Ray and concluded the trial court did not abuse its discretion. Justice Velia Meza, however, wrote a separate, dissenting opinion. She found Officer Ray’s testimony to be overly generalized, lacking “specific and articulable facts” which would warrant a brief detention under Terry. Terry v. Ohio, 392 U.S. 1, 21 (1968). Justice Meza also reached the same conclusion about the objective video evidence from the arrest, which was admitted into evidence but absent from the trial court’s findings of fact and conclusions of law. She concluded, “In light of this evidentiary gap—and the trial court’s disregard of the video entirely—I cannot agree that the detention was constitutionally sound. I would reverse the trial court’s ruling and suppress the evidence obtained as a result of the unlawful detention. As such, I respectfully dissent.”

In the MATTER OF A.M., No. 05-24-00222-CV __ 2025 WL 2430773 __ (Tex. App.—Dallas August 22, 2025)

actions were factors that they considered during their deliberation. The Falcon court held that the wife’s actions impacted the jury’s verdict, preventing Falcon from receiving a fair trial.

A Bexar County jury adjudicated A.M. of delinquent conduct by committing two acts of indecency with a child by contact. After the adjudication, both parties were notified that the jury witnessed a “bearded man sitting in the courtroom gallery making hand gestures and signaling to the complainant during her testimony.” A.M. filed a motion for a new trial, which the trial court denied after a hearing. The 4th Court of Appeals transferred A.M.’s appeal to the 5th Court of Appeals, who reversed and remanded A.M.’s adjudication for a new trial.

Similarly, here, the Fifth Court reasoned that the investigator’s conduct amounted to a “testimony.” Specifically, the investigator admitted during the motion for new trial hearing that he sat behind the State in direct eyesight of the complainant as she testified. Whenever the complainant “froze up,” the investigator would give her a thumbs up and nod his head at her. The State’s victim’s advocate also sat next to the investigator and witnessed him signal to the complainant, but she chose not to notify the parties. After the trial, the jurors asked both parties about the identity of the investigator and why he signaled to the complainant. The State acknowledged the person as their investigator and claimed he was there as a support person for the complainant because he looked like Santa Claus.

Bexar County DA Investigator Violates Respondent’s Sixth Amendment Rights by Influencing the Complainant’s Testimony

On appeal, A.M. argued that his Sixth Amendment right to confrontation and crossexamination was violated when the State’s investigator signaled to the complainant while she testified. The Fifth Court agreed and analogized A.M.’s case to Falcon v. State, 675 S.W.2d 597, 597 (Tex. App.—Houston [14th Dist.] 1984, no pet.). In Falcon, the defendant’s wife nodded her head during statements made by the State and shook her head during statements made by defense. The Court concluded that the wife’s conduct was “testimonial,” and that the defense never had the opportunity to question her “testimony.” Moreover, the jury mentioned how the wife’s 38

However, the Fifth Court emphasized that the Texas Code of Criminal Procedure does not allow a support person to “provide [a] child with an answer to any question asked of the child or assist or influence the testimony of the child.” Tex Code Crim. Proc. Art. 38.074, §§ 3(b), (c). The Court emphasized that if the State truly intended for the informant to be a “support person” the State should have followed the procedure established under article 38.074. The Court further highlighted that the investigator’s conduct would have been

prohibited if he had been an identified, approved support person. According to the Fifth Court, the investigator’s interactions with the complainant were “testimonial” because they could be “interpreted as his agreement with what [the complainant] was saying and his approval of her continuing testimony.” Ultimately, the Court concluded that A.M.’s Sixth Amendment right to confrontation and cross-examination was violated and that the trial court abused its discretion by denying A.M.’s motion for a new trial.

Mary Moore is a third-year law student at St. Mary’s University School of Law. She graduated from The George Washington University in 2018 and taught high-school English in Roma, Texas prior to beginning law school. Currently, she works as a Research Assistant for Professor Albert Kauffman, serves as Executive Editor for The Scholar: St. Mary’s Law Review on Race and Social Justice, and volunteers at the San Antonio Municipal Court’s teen court program once a month. Mary is currently enrolled as a student attorney in the Criminal Justice Clinic and plans on practicing law in the Rio Grande Valley upon her graduation in May 2026.

Luke Keathley is a secondyear law student at St. Mary’s University School of Law and student attorney in the St. Mary’s Criminal Justice Clinic. He earned his undergraduate degree in Business Administration at Texas A&M University. This past summer, Luke worked for the criminal defense firm Gross & Esparza, PLLC, while also serving as a Moody Veterans Fellow assisting the San Antonio Legal Services Association (SALSA). He currently serves as the Member Relations Board Member of the Criminal Law Association and as a Junior Ambassador for St. Mary’s University with the State Bar of Texas Student Division. Luke plans to pursue a career in criminal defense upon graduating in May 2027.

SACDLA HOME RUNS!

1 2 3 4 40

AFPD Marina Douenat who fought hard for this received a Motion to Dismiss in Federal Court! Congratulations to past president Matt Allen on a federal jury acquittal on a family violence assault case. Jessica Gonzalez just won both of her cases in the 175th. ABI on a Peace Officer and Harassment of a Public Servant. Double Trouble! Congratulations! Adrian Perez just got double not guilty verdicts on an Aggravated Robbery and an Aggravated Assault with a Deadly Weapon in the 226th

5 6 7

Joe Hoelscher secured a not-guilty for his client in county court 13 on Friday on an ABI Family violence case. Kelly Pittl got Judge Castro to grant his request for a directed verdict in an assault on a public servant case this week. Gary and Jasmin (and Jason too) tried a self-defense/apparent danger murder case with Judge Skinner out of the 227th all week and received a NG!

2026 SACDLA Committee Chairs MAC Jim Bethke Monthly CLEs Shawn Sareen Fiesta CLE John Convery/Mark Stevens Bylaw Committee Jessica Gonzalez DA Relations Committee Jessica Gonzalez

Awards Committee Trisha Morales Padia Membership Committee Arlene Gay Social Committee / Holiday Party Rolando Arguelles Technology Committee Forrest Good Judicial Integrity Committee Forrest Good

Meet Your Designer!

For the past decade, Jay Rumisek has been the architect of The Defender’s visual style. As an alumnus of Trinity University, Jay’s career took an interesting pivot after he earned his J.D. from the University of Colorado in 2004. The path led away from practicing law and toward his passion for graphic design, but he never lost his appreciation for the work defense attorneys do every day. Now living out of state, Jay enjoys staying linked to his San Antonio roots by ensuring the SACDLA’s message is delivered with clarity and impact in every issue.

SAN ANTONIO

DEFENDER CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate, and excite our membership. If you would like to contribute, please contact a member of the Defender staff.