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San Antonio

January-February 2016

In Memoriam In Memoriam 20152015

M a r y n e l l M a l o n e y

January-February 2016On the Cover: San Antonio Attorney Marynell Maloney. Photo by Bruce Maniscalo.

Photo contributions from: Former Chief Judge Fred Biery (p. 5)

Archives of the San Antonio Lawyer are available on the San Antonio Bar Association website, www.sabar.org.

San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address at the top of page 4. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to [email protected]. Copyright ©2016 San Antonio Bar Association. All rights reserved.

San Antonio Lawyer 3 January-February 2016

Features

Departments

C

ontents

Saying Goodbye to ChiefdomBy Former Chief U.S. District Judge Fred Biery5

Fourth Court Update:Miscellaneous Updates, Changes, and RemindersBy Chief Justice Sandee Bryan Marion19

Federal Court UpdateBy Soledad Valenciano and Melanie Fry20

In Memoriam 2015San Antonio Lawyer Special Edition

In Memoriam 2015

“Most People Call Me Charlie”By Mark Stevens

Remembering Charlie ButtsCompilation of Charlie’s SAL articles through the years

6

12

15

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an Antonio L

awyer

LawyerThe San Antonio Bar Association

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San Antonio

Editor in ChiefSara Murray

Articles EditorNatalie Wilson

Managing EditorErin Boren

Departments EditorLeslie Sara Hyman

Editor in Chief EmeritusHon. Barbara Nellermoe

Board of EditorsSara Murray, Chair Pat H. Autry, Vice-Chair

Juliet Yassamin AzaraniSherry M. BarnashBarry H. BeerAmy E. BitterMerritt ClementsGayla CorleyRyan V. CoxPaul CurlCristina Tijerina DeLeonSamatha DemoryMagda DeSalmeKala DumontJane Rankin DureTanya FeinleibJose GalvanMarie Gerard GrangerShannon GreenanGilbert S. GonzalezStephen H. GordonPer HardySam HoustonLeslie Sara HymanRob Killen

John R. LaneRob LoreeBurke C. MaroldMeagan Rachele MaroldHugh McWilliamsJames MeyratHarry MunsingerCurt MoyHon. Barbara Nellermoe Steve PeirceDonald R. PhilbinEdward L. PinaJason RammelRob RamseyYanira Marie ReyesJohn RightmyerJames RodriguezAlexis Adams ScottRegina Stone-HarrisEtan Z. TeppermanJohnny W. ThomasDavid WillisNatalie Wilson

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Ex OfficioJames M. “Marty” Truss


PresidentJames M. “Marty” TrussPresident-ElectBobby BarreraVice PresidentBeth Watkins

DirectorsDave EvansDawn FinlaysonHon. Rebeca C. MartinezHon. Jefferson Moore

Mexican AmericanBar AssociationJaime Vasquez

San Antonio YoungLawyers AssociationJ. Barrett Shipp

Bexar County Women’s Bar AssociationMarissa Helm

San Antonio BlackLawyers AssociationStephanie Boyd

SecretarySantos VargasTreasurerTom CrosleyImmediate Past PresidentThomas g. Keyser

Hon. Richard PriceChristine ReinhardMark SessionsTy Sheehan

San Antonio BarFoundationJames M. “Marty” Truss

State Bar ofTexas DirectorsAndrew L. KerrHon. Rebecca Simmons

Executive DirectorJimmy Allison

Officers/Directors

Erin Boren Chellie Thompson

Upcoming CLE SeminarsKeeping your Connected, Informed and Relevant.

February 19, 2016Bench Motions & Trials: Criminal Courts Edition

March 4-5, 2016Military Law 101: What All Practitioners Should Know

April 15-16, 201653rd Annual Criminal Law Institute

May 20, 2016Bench Motions & Trials VIII: Civil District Courts Edition


Saying Goodbye to ChiefdomLeft to Right: Anna Lisa Biery Raymond (older of two daughters), Judge Biery, Harlow Raymond (granddaughter), Molly Biery (younger daughter)

In Memoriam In Memoriam 20152015

Walter Napier “Tex” Corrigan II died in November at the age of 69. Corrigan was born in San Antonio and attended Alamo

Heights High School. He received his undergraduate degree from Texas Tech University and his law degree from St. Mary’s University. He had several careers, including manager of the Palacio Del Rio Hotel, bank officer at Frost Bank, principal at Multivest Financial Services and, with his wife, a member of the law firm of Corrigan and Corrigan.

Jose G. Cumpian died in December at the age of 86. Cumpian left his hometown of Crystal City when he enlisted in the Marines in 1946. Following two years of active duty, he enrolled in St. Mary’s University, from which he graduated in 1952. He returned to military service the same year, accepting a commission as a First Lieutenant in the U.S. Army Reserves. Contemporaneously, he continued his education at St. Mary’s University School of Law, from which he graduated in 1956. Cumpian had a twenty-eight-year military career with the U.S. Army Judge Advocate Corps. Following his retirement from the service in 1980, he entered private practice in San Antonio.

John A. Daniels died on November 27 at the age of 92. Daniels was born in St. Paul, Minnesota, and moved to San Antonio when he was 16. He

attended Jefferson High School and served two years in the United States Merchant Marine. Following his time in the service, he attended and received his undergraduate and law degrees from St. Mary’s University. Daniels was immersed in both civic affairs and Democratic politics. He was a member of the Good Government League and served on the San Antonio City Council. He was general counsel and vice president of the 1968 HemisFair, and was Bexar County Democratic Party chairman during much of the 1960’s. In his law practice, he emphasized real estate and banking.

Leroy Gilbert Denman Jr. died in August at the age of 97. Denman was born to a family with a distinguished legal and ranching heritage. He received both his undergraduate and law degrees from the University of Texas, and was recently honored for his seventy-five years as a member of the State Bar of Texas. He began his legal career in the San Antonio firm of Franklin and Denman that his grandfather, former Texas Supreme Court Justice Leroy Denman, had founded in 1899. He later became Chairman and President of Southwest Texas Corporation, and oversaw its four-state, 1.5-million-acre ranching operation. Denman was devoted to many civic organizations and foundations, including the Caesar Kleberg Foundation for Wildlife Conservation, the Tobin Foundation, and the Texas Biomedical Research Institute.


Arthur G. Augustine died in June at the age of 58. The Ohio native joined the Army when he was 17 and was first stationed in Okinawa prior to

being transferred to Fort Sam Houston. He received an undergraduate degree in accounting from UTSA. Augustine had a career as a CPA before attending law school at St. Mary’s University. He was licensed to practice law in 1992, and enjoyed a very successful family law practice.

Charles Dana “Charlie” Butts died in July at the age of 94. Butts was born in Wichita Falls. He received both his undergraduate and law degrees from the University of Texas. He was a decorated veteran of World War II, having served in the 381st Bomb Squadron based in England. Butts had a long and distinguished legal career—first as a prosecuting attorney but, more notably, as a truly outstanding criminal defense attorney. He was a charter member of the Texas Criminal Defense Lawyers Association, a past president of the San Antonio Bar Association, and a frequent contributor to the San Antonio Lawyer.

Thomas Drought died in December at the age of 92. The San Antonio native was born into a family long associated with the legal profession. Drought attended Texas Military Institute and received his undergraduate degree from the University of Texas and his law degree from St. Mary’s University. He served as a Marine fighter pilot in World War II and Korea, and was the recipient of the Distinguished Flying Cross, two Air Medals, and the Presidential and Navy Unit Citations. He was in private practice in the family’s law firm until shortly before his death. Drought spread his time and talents across the civic landscape, having served on the boards (among others) of the San Antonio Art Museum, Our Lady of the Lake University, and the San Antonio River Authority.

Brett Edward Dunn died in December at the age of 47. The Beeville native was steeped in the culture of South Texas, participating in State 4H

as a youth and working regularly with horses and livestock at shows and sales. He received his undergraduate and law degrees from Baylor University. He moved to San Antonio upon graduation from law school so that he could remain close to the outdoors and his family. He began his legal career with Clemens and Spencer and later had his own firm with fellow Baylor Law graduate, Brian Smith. He devoted much of his free time to the Boy Scouts.

Patricia Ana Garcia Escobedo died in January at the age of 62. Law was a second career for the Kingsville native. Escobedo graduated from Texas A&I University and became a high school teacher, working first in Sinton and later at John Marshall High School in San Antonio. She received her law degree from the University of Texas, where she was active in the Chicano/Hispanic Law Students’ Association. Thereafter followed a successful twenty-five-year career as legal counsel adept at complex transactions. She served as president of the Hispanic Bar Association of Austin from 1996-1997 and as a State Policy Analyst for MALDEF in San Antonio.

Stonewall Jackson Fisher II died in October at the age of 72. The Tyler native received both his undergraduate and law degrees from the

University of Texas. He was admitted to the Bar in 1967. Following military service, he joined the accounting firm of Arthur Young in Dallas. He later returned to San Antonio and joined the firm which became Lang, Ladon, Green, Coghlan and Fisher, serving as its managing partner for more than twenty years. He concluded his legal career as Vice-President of Legal Affairs and Chief Legal Officer for Lancer Corporation.

Mayo J. Galindo died in March at the age of 85. The native of San Antonio was a graduate of Central Catholic High School. He received his undergraduate and law degrees from the University of Texas. He was drafted into the Marine Corps nearly simultaneously with both his law school graduation and his marriage to Iva Kowierschke in 1952. Following military service, he embarked upon his legal career with the City Attorney’s Office, under the guidance of Carlos Cadena, and later became a prosecutor in the Bexar County Criminal District Attorney’s Office. Galindo had a long and distinguished career emphasizing both criminal and municipal law. He served as counsel to various municipalities in environs of San Antonio.

Peter Samuel Gross, Jr. died in April at the age of 85. Gross was born in Independence, Missouri. He attended Westminster College.

After graduation, he entered the Navy and served as a gunnery sergeant during the Korean War. He later attended St. Mary’s University Law School and began his legal career as an Assistant City Attorney for San Antonio. Following his retirement as a lawyer, he remained active in various alternative dispute resolution organizations.

Robert Hausser died in August at the age of 93. Hausser was born in Eagle Pass. The family moved to San Antonio when he was 10. Hausser graduated from Alamo Heights High School and went on to attend the University of Texas, the University of Colorado, and St. Mary’s University. Following military service in World War II, Hauser entered St. Mary’s University School of Law. He was an authority on Texas oil and gas law, not only as a practitioner but also as an owner of his own oil and gas company, Cologne Production Company.

Mayo J. GalindoIt is well known that very large trees can grow from small seeds planted

in the firmament of life. As a young man, a hard-working grandfather made some of his living as a water taxi, fifty centavos a head, to swim his riders on his back across the Rio Grande from Mexico to the land of opportunity.This led eventually to the birth of the father of Mayo J. Galindo. Said father expanded that inherent industry into a real estate-based prosperity sufficient to educate his sons very well, leading to Mayo’s University of Texas law de-gree eventuating into a highly competent solo law practice of more than sixty years. He was highly respected for his diligence in preparation in a wide va-riety of cases, civil and criminal. And it is true that literally on his death bed at age 85, he anxiously awaited a call from the clerk of an appellate court to argue over the telephone, strictly from memory, a motion for rehearing in a pending case. The call somehow didn’t make it through, but one wouldn’t put it past Mayo to have argued it anyway through one gate or another to a well-deserved and eternal rest.

— From his friend and associate of long standing, George Cooper, retired.



Colonel Archie L. Henson (USAF, Ret.) died in June at the age of 90. The San Antonio native attended St. Mary’s and St. Leo’s Catholic schools in the city. At 17 he entered a Franciscan seminary in Illinois. A misdiagnosis of tuberculosis ended his studies, and Henson returned to San Antonio. He entered the Army/Air Force in 1943 and served in a bomber squadron in the Pacific Theatre. Following the war, Henson attended the University of Texas and, thereafter, law school at St. Mary’s University. Following law school and a brief corporate law position, Henson returned to active duty with the Air Force Judge Advocate General’s Corps, where he remained for twenty-two years. Upon retirement from the military, he served as County Court Administrator for Bexar County—a position which he held for twelve years. Henson remained active in the Roman Catholic Church throughout his life and was an ordained deacon of the San Antonio Archdiocese, serving at Our Lady of Grace.

Herbert Wheeler Hill, Sr. died in September at the age of 87. Hill received his undergraduate degree from the University of Texas and his law degree

from St. Mary’s University. The solo practitioner was an active member of SABA and a member and past president of the San Antonio Trial Lawyers Association.

Amy S. Isaminger died in March of 2014 at the age of 62. The Dallas native received her undergraduate degree from the University of Colorado-Boulder. She was a 1977 graduate of Southern Methodist University School of Law. Isaminger practiced briefly in Colorado before returning to Texas. She worked with the Texas Attorney General’s Office for more than thirty years and was assistant senior regional attorney in San Antonio for the Child Support Division.

David G. Jayne died in October at the age of 86. Jayne was born in Painesville, Ohio. He received his undergraduate degree in Business Administration from Kent State University in 1952 and, some years later, his law degree from St. Mary’s University(1973). Jayne had a noteworthy military career, culminating with his volunteer service as battalion commander in Vietnam. He retired from the military in 1970. Following graduation from law school, he entered private practice with the firm of Tinsman and Houser.

Marynell Maloney died on November 26 at the age of 60. Maloney was reared in Costa Rica, where her parents operated two private schools.

She earned her undergraduate degree from Oberlin College, a master’s degree in Psychology from Trinity University, and her law degree from St. Mary’s University. Maloney was an intelligent, innovative, passionate, and effective legal advocate with a practice specializing in personal injury and medical malpractice. Her several hobbies included creative writing, dance, and filmmaking.

Floyd McGown died in May at the age of 95. The third generation San Antonio lawyer held degrees from St. Mary’s University, Trinity University, and the University of Texas Law School. He served in the Navy in World War II, remained in the reserves following the war, and retired with the rank of Commander. He was a prominent cattle breeder and the founder of the North American Limousin Foundation.

Marynell MaloneyIn 1976, Marynell was driving through Texas on her way to see her par-

ents in Costa Rica, when she stopped off in Austin. After becoming enam-ored with Austin’s vibrant culture, she enrolled in a philosophy class at the University of Texas at Austin where she met Michael Maloney. Michael and Marynell soon married in an informal ceremony and moved to San Antonio. They then went to law school together, graduated in 1980, and joined the firm of Pat Maloney Sr.

Marynell had an incredible desire to help others, and she lived her life with an unflagging commitment to her family and her clients. Marynell was a champion against elder abuse and neglect and spent most of her thirty-six-year legal career improving the quality of care rendered to our state’s most vulnerable citizens. In her journey through the practice of high stakes litiga-tion, she served in various other capacities, including as President of the San Antonio Trial Lawyers Association, Director Emeritus of the Texas Trial Law-yers Association, and member of the Top Trial Lawyers in America’s Multi-Million Dollar Advocates Forum.

While raising a family, and running a celebrated law practice, Marynell also managed to have a rich creative life. She attended the New York Film Academy and wrote, directed, and produced many original art films. When Marynell and Michael dissolved their law firm, Maloney & Maloney, P.C., in 2009, Marynell started Marynell Maloney Law Firm, PPLC, a new practice with her daughter, Michelle, and son-in-law, Chris Hernandez, which contin-ues in her name today. Although Marynell lived to proudly see all three of her children (Michelle, Erica Olivia, and Michael Dennis, Jr.) become lawyers, she also encouraged us to be whole human beings and enjoy the entire spectrum of existence—as she did. — Michelle Maloney

John L. Mogford, Jr. died in May at the age of 75. Mogford was born in Monahans but spent much of his life in Carrizo Springs, as both

an attorney and rancher. He graduated from Texas A&M University and received his law degree from St. Mary’s University. He was in private practice in San Antonio for many years.

Manuel Pena Montez died in November at the age of 68. Montez was a native of Carrizo Springs. He was a graduate of Southwest Texas State University and attended St. Mary’s University Law School. Admitted to the Bar in 1971, Montez had a successful general litigation practice in San Antonio.

Paul R. Penrod died in September at the age of 85. Law was Penrod’s second career. His first had been in the aerospace industry as an aircraft

designer and rocket propulsion systems engineer. He ultimately became one of the first engineers to work at NASA in Houston. He worked at NASA for nearly thirty years and contributed to the design and management of space programs, beginning with Mercury through to the Space Shuttle. He retired from NASA in 1988 and entered law school at South Texas College of Law, receiving his degree in 1991. He moved to San Antonio to be close to his grandchildren and served as an Attorney/Mediator at the Bexar County Dispute Resolution Center.

Carl Henry Pfeiffer died in July at the age of 83. Pfeiffer attended Central Catholic High School, Notre Dame University, and St. Mary’s University School of Law. Following a few years of private practice, Pfeiffer acquired Security Title Co. and Security Title & Trust and embarked on what was to be a long and successful career in that aspect of the law. Security Title Co. became First American Title Company, a business which Pfeiffer sold in 1994. Following the sale, Pfeiffer continued to work in various real estate and business endeavors until December 2014. He enjoyed hunting and ranching and was a longtime member of the San Antonio Liederkranz.

Joel H. Pullen died in August at the age of 83. Pullen grew up in Crystal City. He received his undergraduate degree in Business Administration

from the University of Texas in 1953, and his law degree from the University of Texas Law School in 1955. He graduated with honors and was a member of its Law Review. Pullen began his career as a litigator with the Justice Department, prosecuting claims under the Trading with the Enemies Act. That career blossomed when he entered private practice in San Antonio. He practiced for fifty-five years before retiring in 2009.

Steven Robert Sampson died in August at the age of 58. Sampson was born in California. His undergraduate degreeis from Texas A&M University, and his law degree is from St. Mary’s University School of Law. Sampson’s practice emphasized condemnation law, and he had a long association with the Baron & Adler firm in Austin and San Antonio.

Joel H. PullenJoel H. Pullen was one of a handful of San Antonio attorneys who, by

1978, had argued and won a case in the United States Supreme Court [Group Life & Health Insurance, Petitioners v. Royal Drug Company, et al., Respondents, 440 U.S. 205 (1979)]. He would say that it was not too bad for a kid from Crys-tal City.

Joel loved the law, which he practiced for 55 years before retiring in 2009. Joel was a founding partner of Pulman, Cappuccio, Pullen, Benson & Jones, LLP, and was proud to practice with his daughter Shari, his son Eric, and his son-in-law Randy Pulman. He received his law degree from the University of Texas, where he was admitted to Order of the Coif and served both as a Mem-ber of the Editorial Board and Associate Case Note Editor for the Law Review.

In addition to his legal career, Joel was proud to serve as President of the Jewish Community Center from 1973-75. However, by far his greatest accom-plishment was his marriage of fifty-three years to his beloved wife, Reesa. A man of unsurpassed character and integrity, Joel Pullen touched the lives of all who knew him and was, until the end, a true gentleman. — Shari Pullen Pulman


J. Burleson “Burley” SmithJ. Burleson “Burley” Smith, for many years the Managing Partner of Cox Smith (now Dykema Cox Smith), died on May 9, 2015. After graduating from The University of Texas with BBA and LLB degrees and before starting his law practice in 1946, Burley served as a Special Agent in the FBI and in the United States Navy as a Night Fighter Director on aircraft carriers, princi-pally the USS Ticonderoga. He was proud and fiercely loyal to the University of Texas (particularly to its law school), the FBI, and the Navy. Second only to his family, his “pride and joy” was Cox Smith. He was the Firm’s servant leader for many years, stewarding it from a four-person office to a firm of over seventy-five lawyers before handing the reins to his successor in the late 1980’s. Burley was regularly in the office until age 95, keeping up with the Firm’s lawyers and staff, and periodically apologizing to the Firm’s leader-ship for his “reduced productivity.” Burley was instrumental in the profes-sional growth and the success of many Cox Smith lawyers over the years, and he influenced the careers of many other San Antonio lawyers. He was a lead-er, a mentor, a lawyer’s lawyer, a trusted advisor and friend to many, a loving husband and father, and an avid outdoorsman. If all could be blessed with his ability to connect with people, not because of any agenda, but merely because they were fellow human beings deserving of respect, attention, and support, the world would be a much better place. Burley’s was a good life—well lived.

— James B. Smith, Jr., Member, Dykema Cox Smith

Wayland A. Simmons died in June at the age of 74. He graduated from Texas A&M University in 1962 and was the captain of the football team. Upon

graduation, Simmons entered the military for two years. Law school at St. Mary’s University followed. Upon graduation, Simmons worked briefly in the Bexar County District Attorney’s Office before running, successfully, for a seat in the Texas House of Representatives. Simmons undertook several business and real estate ventures in San Antonio in the 1980’s. He and his wife Dee Ann later moved to Port Aransas, where Dee Ann operated a ladies’ fashion store and Wayland practiced a little law. In recent years, they resided in Goliad.

J. Burleson “Burley” Smith died in May at the age of 98. Smith was born in Caldwell. The family moved to San Antonio when he was 10. Smith graduated from Jefferson High School. He earned a Bachelor of Business Administration and Bachelor of Law degrees from the University of

Texas. Following law school, he joined the FBI but left in 1943 to accept a commission as a second lieutenant in the Navy. He served principally on the carrier USS Ticonderoga as a Night Flight Director. After the war, he entered law practice with the San Antonio firm of Seeligson, Cox & Patterson, later to become Cox & Smith. Smith served as the firm’s Managing Partner for many years. Smith received more professional honors than can be reasonably listed here but among them were the Joe Frazier Brown Award (2006) and his designation as Distinguished Counselor by the State Bar of Texas Section of Antitrust and Business Litigation.

Colonel Clarence D. Ward (USAF, Ret.) died in June at the age of 85. Colonel Ward was born in Conroe, attended George Washington Carver High School in Houston, and received his law degree from Texas Southern University. Colonel Ward had a distinguished twenty-seven-year career with the Air Force Judge Advocate General’s Staff and was honored with the National Defense Service Medal and the Legion of Merit.

Charles A. “Buddy” Weeber died in July at the age of 92. Weeber was a graduate of Texas Military Institute. He was a Navy pilot in World War

II, serving in the South Pacific. Following military service, he attended St. Mary’s University School of Law. Weeber was the Senior Vice President of Claims at USAA when he retired in the early 1980s.

Stephen F. White died in February at the age of 65. He was born in Troy, New York, and reared in Reading, Massachusetts. In 1971, White enlisted in the Army, shortly after he received his undergraduate degree from Dartmouth.Following military service, he entered law school at St. Mary’s University, from which he graduated in 1980. White had a distinguished career as a litigator and was an Advocate of the American Board of Trial Advocates.

Walter C. Wolff, Jr. died in June at the age of 87. Wolff was a graduate of Jefferson High School and received both his undergraduate and law

degrees from the University of Texas. He practiced law with his father Walter C. Wolff, his son Jeff Wolff, and Ruth Lown for more than fifty years.


“Most people call me Charlie “

By Mark Stevens

State of Texas v. Charles County: 1976-1995

A woman was brutally murdered in San Antonio and one of the three sus-pects, of course, was her husband. The Assistant District Attorney assigned to the case was a master at putting people on death row, but he had trouble keep-ing them there because he cheated so often and so flagrantly that his capi-tal convictions almost never survived appellate review. This prosecutor re-ally wanted the husband, so he quickly made a deal with Moore, one of the other two defendants, even before Moore had a lawyer, promising that Moore’s coop-eration would make it “easier and light on” him.2 On April 27, 1976, a lawyer was appointed to represent the second defendant—whose name was County—and the prosecutor, apparently lacking complete confidence in Moore, made a deal with the lawyer that he would not seek the death penalty in County’s case if he cooperated against the husband. County did cooperate, just as he and his lawyer agreed he would, but it turns out that the Assistant District Attorney was not a man of his word. Shortly after con-vincing a jury to condemn the husband to death, the prosecutor let Moore plead guilty to a lesser charge for seventeen years of imprisonment. He denied that he had ever had a deal with County and his lawyer, though, and he prosecuted

County and put him on death row, just like he had done for the husband.

Unfortunately for the Assistant District Attorney, Charlie Butts was the lawyer appointed to defend Charles County, and he was not about to allow a client of his to be cheated out of his life by an “unethical and unprofession-al”3 prosecutor. Justice would eventu-ally come in this case, but it took almost nineteen years. It was a good thing for Charles County that Charlie Butts never quit on him.

The Court of Criminal Appeals reversed County’s first conviction in 1984, but the prosecutors got another. After losing the first trial, Charlie ap-pealed to the Texas Court of Criminal Appeals, and that court reversed Coun-ty’s conviction because of error in the jury charge.4 That was 1984. By then, the original, cheating prosecutor was no longer employed by the State, but the new prosecutors pushed ahead and announced their intention to again seek the death penalty. Charlie, and co-coun-sel Bobby Willman, moved to quash the capital murder indictment, argu-ing that the 1976 agreement not to seek the death penalty should bar the state from doing so now. The prosecutor who made the deal was called as a witness and denied having done so. The trial court overruled the motion, the pros-ecution went forward, and County was again convicted and sentenced to death.

Another reversal proved that Butts was right all along. Charlie continued to fight. He appealed again to the Court of Criminal Appeals and, among other things, he argued that the trial court had

erred in overruling the motion to quash the indictment. Initially, on March 29, 1989, a majority of the court voted 5-3 to affirm the conviction, rejecting all points of error, including those related to the “alleged agreement between the prosecutor and appellant’s attorney.”5

Despite the fact that the original majority managed to call the agreement an “alleged” one no fewer than four times in the course of three paragraphs,6 Charlie knew it was real because he had been present when it was made. Convinced that the trial record did not accurately reflect the court’s ruling, he filed a motion for rehearing and includ-ed a motion to abate the appeal so the record could be corrected. Rehearing was granted, the appeal was abated, and the case was remanded for a hear-ing about the record. The trial judge, the Honorable Pat Priest, held a hear-ing and agreed that parts of the record were inaccurate. In addition to correct-ing the record, Judge Priest added this to it, making crystal clear who he be-lieved had told the truth—and who had not—about the agreement: “[I]n fact, I did find that Mr. County was told that he would not be prosecuted for capital murder, and I couldn’t, frankly, fathom any reason under the sun why Mr. Butts would have given [the prosecutor] carte blanche with his client with any un-derstanding short of that, and I do not believe, in fact, that he did. I think that was the understanding, and so I intend-ed to explicitly find exactly the opposite of what the Court of Criminal Appeals found that I implicitly found.”7

Of course, Charlie had it right from

“Example is not the main thing in influencing others. It is the only thing.” - Albert Schweitzer


1

the start. The State had made an agree-ment not to seek the death penalty against County, and had violated the agreement not once, but twice. Based on the corrected record, on May 15, 1991, a new majority of the Court of Criminal Appeals reversed the conviction and re-manded the case for a new trial, holding that the trial court had the authority to bar the prosecution for capital murder “on a finding that an enforceable agree-ment not to prosecute existed.”8 Only Judge Campbell, who had authored the opinion on original submission, dis-sented.

A third trial ended in conviction and a life sentence, but it too was re-versed. Bexar County next re-indicted Charles County in 1991 and later re-tried him a third time, this time for murder. Fortunately, Charlie was still there.9 Although County was convicted and sentenced to life imprisonment, Char-lie appealed, this time to the Fourth Court of Appeals in San Antonio. On March 9, 1994, in a unanimous opin-ion written by Justice Tom Rickhoff, the court reversed the conviction once more, finding that the trial court had failed to properly apply the law of parties to the facts of the case.10

County went home in 1995 after three trials, three reversals, and a plea bargain for time served. And finally, the State had enough. On December 30, 1994, Charles County was offered and ac-cepted a plea bargain of forty years of imprisonment with credit for time served. He walked out of jail thirty-one days later, a free man. It would not have happened but for Charlie Butts’s heroic willingness to wage this epic war for more than eighteen years.

Early Life, Military Service, Law School, and a Diverse Career in the Law

Charles Dana Butts died in San Antonio on July 23, 2015, at the age of ninety-four. He practiced law for sixty-six years. Charlie was born and raised in Wichita Falls. He started law school at the University of Texas in 1941, but like many of his generation, his edu-cation was interrupted by the war. He

joined the Army Air Corps in 1942 and was later awarded the Bronze Star as First Sergeant of the 535th Bomb Squad-ron, 381st Bomb Group (H) in England. He returned to law school at UT in 1946 and got his degree on May 10, 1949. He went back to Wichita Falls to practice law, and soon moved to Odessa and then to Billings, Montana. In the early 1960s he joined the Tarrant County Dis-trict Attorney’s Office, and a few years later he and Shirley moved to San An-tonio. She was a defense lawyer, and Charlie worked for the Bexar County District Attorney’s office, eventually serving as First Assistant to District At-torney Ted Butler.

Although he handled a wide vari-ety of civil cases and prosecuted a num-ber of high-profile defendants,11 Charlie today is widely regarded as one of the

very best criminal defense lawyers ever to practice in Texas. He was a founding member and past-President of the Texas Criminal Defense Lawyers Association (“TCDLA”) (1987-88), was President of the San Antonio Bar Association (1979-80), and was Director Emeritus of the San Antonio Criminal Defense Lawyers Association.

Shirley Butts Was the Best Lawyer He Ever Knew, and He Never Tired of Saying It.

I very clearly remember the first time I heard Charlie speak. It was 1976. I was a first-year law student at St. Mary’s, and he was a guest lecturer in our criminal law class. I knew of Shirley

Butts then because she was a professor at the law school. I later learned that she got her law license in 1954, that she worked for the Tarrant County District Attorney’s Office, and that she had been in private practice in Fort Worth for several years before moving to San An-tonio with Charlie, where she worked with him and other lawyers. In 1981, she joined the San Antonio Court of Ap-peals, where she served with distinction as an Associate Justice for a number of years.

Charlie could not have been more proud of his wife’s accomplishments as a teacher, a lawyer, and a judge. I remember he praised her the first time I heard him speak, and in the scores of times since then that I heard him, never—not once—did he fail to credit Shirley’s legal genius. When inter-

viewed as a Past-President of the TCDLA, Charlie made sure, as always, to give Shir-ley the credit she deserved: “I’m blessed with having a wife that’s, I think, the best lawyer I ever knew.”12 Their marriage of forty-eight years ended with his death, and I guess I never met two people more devoted to each other.

Mentally Strong to the Very End

A few years ago, while crossing the street on the way to deliver a CLE in San An-tonio, Charlie was run down by a careless driver. This ac-cident slowed him down a lit-tle, forcing him to use a walk-er, and toward the end of his

life, he was slowed down a little more by heart problems that confined him to a wheelchair. That said, he remained in relatively good physical health for most of his life.

I am happy to report that Charlie had all his mental faculties to the very end. I saw Charlie often during the last few months, and I was astounded at how well his mind worked. At his ninety-fourth birthday party in June, he recalled the names of lawyers, judges, clients, cases, and trials from forty, fifty, sixty years ago. He talked about cam-paigning against Warren Burnet for Dis-trict Attorney in Ector County in 1951 and about how the two of them drank beer the night Warren squeezed out his


“By the attachment hereto, I salute you.”


narrow victory. He discussed two of his cases that had had particularly sig-nificant impacts on Texas law.13 He ab-solutely was as sharp as anyone a third of his age.

Charlie was scheduled to speak at the San Antonio Criminal Law Institute on April 17, 2015, but reluctantly called and cancelled about a week before the seminar because of health concerns. He did get his paper, entitled “Reflec-tions on a Lifetime in the Courtrooms of America,” turned in, and it was excel-lent—as well-written and informative as any he ever wrote.

He Never Stopped Teaching.This was the fifty-second year that

the San Antonio Criminal Law Institute has been presented, and during that time, probably nobody spoke as often as Charlie Butts. He also spoke and wrote papers frequently for TCDLA for the last forty-four years. Since 1999, Charlie served on the editorial board of the San Antonio Lawyer, and he authored nine-teen articles for that publication. His ten-part series,“Highlights of My First 50 Years of Lawyering,” inspired and entertained us and, I strongly suspect, was the single most popular item the Lawyer ever published. In his last paper for our institute in April 2015, Char-lie wrote about many of his cases dat-ing back to the Fifties and said, “I can remember all of them in detail to this day.” And I know he could.

GratitudeA man approached me at Charlie’s

funeral, stuck out his hand and asked, “Do you know who I am?” I was almost certain I did, even though there was no reason for me to know him. The man—or at least the man I thought he was—and I had never met, or even spoken, as far as I remembered. I had only seen him two or three times in my life, and not at all in more than twenty years. I shook his hand, took a chance, and said, “You’re Charles County.” And he was. Even though I did not recognize his face, I knew he would be at the funeral, if there was any possible way he could get there. He introduced me to the fam-ily members who accompanied him. He seemed to be in good health, especially for a man who had spent a third of his life behind bars, much of it on death row.

After the funeral, when the pall-

bearers had carried out the casket to the hearse, just before it would depart for the Texas State Cemetery in Austin, Mr. County asked the funeral direc-tor if his family could take a picture of him beside the car in which his former lawyer lay. The services that afternoon had been moving indeed: the playing of “Taps,” the presentation of the folded American flag to Justice Butts, the pres-ence of Charlie’s family, the gathering of judges and lawyers from the court-house, the heartfelt eulogies given by Suzanne Hildebrand and Judge Priest. Of all the moving moments that day, though, I was most affected by the pres-ence of the County family. Charlie had fought for years and had finally been able to get this man back to his family, and the man and his family knew it, and they came to show their gratitude. This touched me, and I’m as certain as I can be that Charlie would have been particularly happy to know that Charles County was at his funeral.

We Salute You, Amigo.Charlie’s email address was Car-

losAmigo, and until recently, he was an active participant on the San Antonio Criminal Defense Lawyers’ listserve. He was quick both to join the legal de-bates that lawyers sometimes have, as well as to congratulate those who had won a case, or achieved something in the legal community. A few years ago, I wrote an opinion piece in the local newspaper that challenged our District Attorney to establish a pretrial diver-sion program for adults. Charlie wrote an email to me about a similar program that he and his boss, Doug Crouch, had set up when they worked together in the Tarrant County District Attorney’s Office fifty years ago, before anyone had heard the term “pretrial diversion.” This sort of note was pure Charlie Butts: a well-written, entertaining history les-son meant to teach something useful about the present and the future. He wrote that their efforts half a century ago had been savaged by the Fort Worth media, but that it had nonetheless been a positive program. “I do believe we saved some very worthy young people from having a criminal record, thereby serving society and the criminal justice system—not to mention saving a whole lot of expenses to the taxpayers.” Not a bad idea, then or now.

Charlie closed his email with best

wishes for me and Stephanie,14 and he attached a photograph of himself rais-ing a glass of white wine. The picture bore the caption: “By the attachment hereto, I salute you.” It is our turn now, Charlie, to salute you. Albert Schweitzer was right: example is the only way to influence others, and for so many years, for so many people, you served as a wonderful example of how real lawyers should conduct themselves, in and out of court. Thank you for that, and adios, amigo.

For more than 30 years, Mark Stevens has defended persons charged with serious crimes in Texas. Since 1984, Mark has been Board Certified in Criminal Law by the Texas Board of Legal Specialization. He has been listed in The Best Lawyers in America (Woodward & White) since 1991, and that publication named him the Non-White Collar Criminal Defense Lawyer of the Year in San Antonio in 2010. He has been listed as a Texas Super Lawyer (Key Professional Media, Inc.) since 2003, and that publication ranked him in the top 50 lawyers in the West and Central Regions of Texas in 2008 and 2009. Mark Stevens does trial and appellate work in the state and federal courts. Mark prepared the foregoing tribute for Voice for the Defense, a publication of the Texas Criminal Defense Lawyers Association. The tribute was also published in The Defender, a publication of the San Antonio Criminal Defense Lawyers Association.

EnDnOTES

1This is how Charlie introduced himself when interviewed as a Past-President for the oral history project maintained by the Texas Criminal Defense Lawyers Association. See http://tcdla.com/TCDLA?Past_Presidents/ (last vistited Nov. 16, 2015). Charlie was unfailingly courteous and had the manners and bearing of a 19th Century gentleman, but he did not have a pompous bone in his body.2See Buffinton v. State, 652 S.W.2d 394, 396 (Tex. Crim. App. 1983) (Clinton, J., dissenting).3These were adjectives supplied by Presiding Judge John Onion, and earned by the prosecutor for Brady violations he committed in the husband’s case. See Buffington, 652 S.W.2d at 395 (Onion, P.J., concurring). Judge Edward Prado, now on the Fifth Circuit Court of Appeals, then a United States District Judge, called the prosecutor’s behavior “deplorable.” Buffington v. Copeland, 687 F. Supp.

- Continued on page 22 -


Charles Dana “Charlie” Butts died on July 23, 2015, at the age of 94. For more than twenty years, he served on the SABA Publications Committee, and during that time, he published nineteen articles. Certainly most memorable were Charlie’s war stories from his more than sixty years of practicing law. As a tribute to Charlie, the Editorial Board of San Antonio Lawyer now re-publishes just a few of Charlie’s best stories. Enjoy!1

Two Little Pigs. Early one morn-ing an elder1y gentleman named Enoch wandered into my office and said he wanted to sue a “no count, lowdown $#@&&!!” Enoch had a hog farm and had “stood” his male hog with a sow owned by the $#@&&!!. But the sow gave birth to only two little pigs, one a pitiful little runt. The $#@&&!! tried to make Enoch take the runt, but he re-fused, saying that he had the pick of the litter as the owner of the male hog.

I told him I would have to charge him $25 (my first “big fee”) plus court costs. He peeled off, as I recall, $30. The owner of the sow hired another lawyer who also charged $25, a total of $55 for a little pig that wasn’t worth at that time more than $10.

I researched the law on agister’s liens, oral contracts, specific perfor-mance, and all sorts of things and filed suit in JP court for the pick of the litter. Word quickly circulated about the case, so some of our lawyer friends got to-gether and filed an intervention on be-half of the sow, alleging that “she was the fit and proper ‘person’ to have cus-tody of her offspring.”

We went to trial, and despite tear-jerking arguments from the lawyers for the mother sow, we won with the aid of another hog farmer who testified for us. Old Enoch picked up his good little pig and walked away from the courthouse a happy hog farmer!

The Blood Transfusion Case. I served as Ector County Judge for a time during an illness of the regular judge—

a memorable experience. One morn-ing, I got a call from the hospital that a woman was in a coma, as a result of a car wreck, and desperately needed a blood transfusion. Her father was a preacher with a certain religious group. He and her family had barricaded the door to her hospital room and were blocking the transfusion. I held a brief hearing and discovered that she was married, that she and her husband were not members of the particular congrega-tion, and that he wanted the transfusion to take place.

I did a little research and decided that inasmuch as the county judge could be considered the guardian of minors and incompetents, I could be the guard-ian of the woman in the coma, as she was, in fact, incompetent at the time. I, therefore, ordered that no one was to in-terfere with the transfusion.

When the hospital personnel at-tempted to go forward, however, her two brothers and other family members blocked them and damaged some of the equipment. I sent the culprits to jail, and several transfusions were administered. She survived, and I was gratified when sometime later the woman and her hus-band came to my office and thanked me for literally saving her life. Also, I re-ceived a letter congratulating me from the judge of Cook County, Illinois, say-ing he had read about the case in the Chicago paper and had followed much the same procedure as I in a case that came before him, likewise with a happy ending.

The Day President Kennedy Died. I will always remember what I was doing and exactly where I was sitting that fate-ful day in 1963 when Oswald shot Presi-dent John F. Kennedy. We were permit-ted to handle civil cases in the D.A.’s office, provided our official duties were not neglected and there was no conflict of interest. I was sitting in Judge Temple Shell’s chambers with opposing counsel awaiting the verdict of a jury in a nasty divorce/child custody case.

News circulated like wildfire throughout the courthouse that the President had been shot while riding in a parade in Dallas. We couldn’t be-lieve it. Surely there must be some mis-take! Since the jury was deliberating the case and had not heard the news, we discussed whether or not we should immediately notify the jury. However, inasmuch as the trial had lasted several days and involved serious facts relevant to the welfare of three little children, we unanimously decided against letting them know until after their verdict.

When the jury announced they had reached a decision, we returned to the courtroom. The wife had conducted herself in a manner totally unbecoming that of a good mother or wife, and I rep-resented the plaintiff husband. The jury awarded him the divorce and custody of the children, which triggered literal bedlam in the courtroom. One of the lit-tle girls didn’t want to go with Daddy, so she got down on the floor, with her arms wrapped around her Mommy’s legs. Screaming at the top of her lungs, she would not let go, despite Daddy’s

Charlie ButtsRemembering

frantic tuggings and pleadings.The wife’s mother took serious of-

fense and started swinging her purse at me. I bravely got behind the counsel table! Everyone was shouting, the chil-dren were crying, the judge was trying to quiet everyone down so he could in-form the jury of the tragic news about President Kennedy. It was literal chaos.

I resolved right then and there that I was out of the “child custody” busi-ness—one resolution that I have kept religiously through all these years!

The Conversion of a Male-Chau-vinist. One of our prosecutors was sick one day, and I was asked to try a man accused of robbing a taxi driver one night in Forest Park. The guys in the of-fice warned me that I had my work cut out for me and had better get ready for a real battle. When I asked who the de-fense attorney was, they told me, “It’s a woman!” Not having tried a case against or with a woman lawyer before, I thought to myself, “Man, this is going to be easy.” There at the defense table sat Shirley smiling courteously and, as I soon realized, confidently.2

On cross-examination, the cab driv-

er admitted that he only saw the rob-ber’s face in the rearview mirror, that it was night-time, that there were no street lights in the park, and that when the taxi door opened no dome light came on be-cause it was broken.

Shirley inflicted the coup de grace when she concluded by saying, “Mr. Cab Driver, what you are really telling this jury is that my client ‘looks like’ the man who robbed you. Now, sir, isn’t that the truth . . . he just ‘looks like’ him?”

The hapless cab driver said, “Yes, ma’am, he looks like him.”

She gently said, “Thank you, sir, for your honesty. No further questions, Your Honor!”

I saw Reasonable Doubt being shoved down my throat, and Shirley made me swallow it when the jury re-turned a verdict of “not guilty.” That converted me then and there.

George Cochran: “Judge, that’s en-trapment!” George Cochran was one of the better defense attorneys in all of Texas. Proof of that fact was his induc-tion into the Texas Criminal Defense Lawyers Association “Hall of Fame” af-ter his untimely death a few years ago.

It was a distinct pleasure and challenge to go up against him. We had many a good battle and through it all became the best of friends.

Just a few weeks after moving from Wichita Falls to Fort Worth, I prosecuted one of George’s clients for armed rob-bery. In my closing argument, I told the jury that, if I were still in Wichita Falls, I would ask the jury to send the defen-dant to the pen for twenty years, and I didn’t believe the good citizens of Fort Worth should have any less protection. So, I asked them to give him twenty years.

Seizing an opportunity to make an-other jury speech, George bounced to his feet and said, “I object, Your Honor! I was raised here. My Daddy is the Pas-tor at the Methodist Church. I sing in the choir, and we don’t need no ‘Carpet-bagger out of the North’ dictating to us what to do here in ‘Cow Town!’”

“Carpetbagger out of the North? I came here from Wichita Falls, only 125 miles from here!” George wasn’t pre-pared for what followed.

You could look to the North from the courthouse and see, across the Trin-ity River, the old cemetery where many of Fort Worth’s early settlers are buried. Gesturing toward the river, I told the jury, “I did not know Mr. Cochran con-sidered me a ‘Carpetbagger.’ Obviously, he does not know that Terrell Street and Terrell High School are named after my Uncle Alec Terrell, and I am sure he doesn’t know that my own dad, my Uncle Charlie, and grandparents, lived here before moving to Wichita Falls in 1911, nor that my now-deceased Uncle Frank Jackson was a longtime lawman here. Also, all of my kinfolk including my Great-Grandfather and Grandmoth-er Butts were honored members of the First Presbyterian Church here. Finally, undoubtedly Mr. Cochran does not know that several of my ancestors are buried in that old cemetery.”

At that point George just couldn’t take it anymore, “Your Honor, I demand a mistrial. He entrapped me!”

Laughing along with the jury, Judge “Dutch” Winters said, “Overruled, counsel . . . you opened the door!” The jury agreed with this “Carpetbagger out of the North” and gave George’s client twenty years.

The State of Texas v. Kenneth Allen McDuff. Brutally raped and mutilated



with a broken broomstick, her half-clothed, lifeless body was thrown over a barbed wire fence into a lonely corn-field. Her two teenage boy companions lay dead in the trunk of their car where they had been shot in the head by Ken-neth Allen McDuff, while his horrified sidekick Roy Dale Green helplessly watched. Soon, buzzards ominously circled overhead.

McDuff, with the help of Green, had abducted the three teenagers at the school yard in Everman, Texas, just south of Fort Worth, and had choked the helplessly pleading girl by standing on the broken broomstick placed across her throat, after ordering Green to hold her legs.

We received a call a few days later that Green had become so traumatized by the tragedy that he had broken down and told the authorities, which led to the grisly discovery. Both McDuff and Green were indicted for capital murder. Our District Attorney, Doug Crouch, as-signed Grady Hight, John Brady, and me to prepare and prosecute the case, Doug acting as Commander-in-Chief. It fell my lot to question a farmer who had seen McDuff and Green drive into a nearby field, and to question our Chief Deputy Sheriff and other witnesses, in-cluding cross-examining McDuff him-self.

McDuff was arrogant, evasive, and totally without any indication of feel-ing or remorse on the witness stand and throughout the entire trial. The fore-man of the jury told us they could see McDuff’s huge powerful hands through the opening of the witness box, and that every time I backed him into a corner, he would grab the knuckle of his left index finger and twist and turn it until the jury thought he would literally tear it off. He said further that when I would ease up on the pressure, McDuff would lean back, smirk at me and the jury, and quit twisting his knuckle. (Another example of how juries can pick up on certain things and eccentricities during a trial.)

McDuff was assessed the death penalty. However, as in the case of Melvin Stuart Pittman and others, his sentence was commuted to life impris-onment as a result of Furman v. Georgia. Roy Dale Green was allowed to plead to straight murder for his early coopera-tion, and he later was paroled after be-having himself in prison.

McDuff never should have been paroled, however, because he launched upon a brutal rampage of no-tell-ing-how-many abductions, rapes, and murders through-out central Texas, until he fi-nally was caught, tried, con-victed, and given the death penalty in both Houston and Seguin. . . . To the end, Ken-neth Allen McDuff showed no remorse for his monstrous deeds.

This case makes one wonder, “What in the world can produce someone like Kenneth Allen McDuff?” He indeed was the most evil and brutal of all those I prosecut-ed, with perhaps almost the exception of Doyle Edward Skillern, whom I later prosecuted as a Special Prosecutor in Rockport. Skillern was convicted, assessed the death pen-alty, and executed. That prosecution, and that of Charles Victor Sanne, his companion, is a whole story itself.3

Final Justice for Kenneth Alan McDuff: The Meanest of the Mean. My final participation in the long overdue demise of Kenneth Alan McDuff came when I was subpoenaed to testify for the State at his prosecutions in Houston and Seguin for the rape, torture, and murder of two more hapless women af-ter his scandalous parole.

When I looked into his cold, dead-ly, almost lifeless eyes as I testified, the memory of a poor lifeless teenage girl lying all alone in that isolated field back in 1966 flooded through my mind. Both juries assessed McDuff the death pen-alty. The convictions were affirmed. All of his last minute efforts to avoid execu-tion were denied, and he finally was executed in late 1998—thirty-two years since we first convicted him in Fort Worth and his death penalty was com-muted to life after Furman v. Georgia.

Thus ended the deadly career of Kenneth Alan McDuff, the Meanest of the Mean.

State v. Cuevas.4 Defendant Cue-vas was sitting on a couch eating fried chicken when the police arrived. The foreign object stuck in the roof of his mouth was not a chicken bone, but a .22 caliber bullet that lodged there when he

shot himself in the mouth with a Satur-day Night Special in a failed attempt to commit suicide after killing his wife. As fate would have it, the powder in the bullet was defective, thereby creating the freakish situation.

After shooting his wife, Cuevas dragged her into the bathroom on her back, placed a partial box of .22 shells on the edge of the bathtub, scattered three or four empty shells on the floor, and carefully placed the pistol on top of her right thigh with the barrel pointing to her left side. She had a bullet hole in her right temple, which the EMS noticed upon their arrival. She also had a bullet hole at the base of her skull in the back, which initially went unnoticed and was not reported in the police reports. It was listed in the autopsy report, but the medical examiner had moved to New York and refused to come back to testify.

This presented a problem for Bill White and me because Jack Leon, Cue-vas’ astute defense counsel, was claim-ing that the wife had shot herself. We needed to show that wound at the base of her skull, and Jack was giving us a lit-eral fit. As sometimes happily happens, however, a light shone brightly via the case of Vargas v. State,5 which allowed us to introduce the autopsy report after quite a battle. Judge Semaan’s ruling stood up on appeal.

As would-be smart defendants of-ten do, Cuevas made a serious mistake in arranging the bathroom scene when he placed the pistol on top of his wife’s right thigh with the barrel pointing to


her left. Why? She was left-handed, which made it impossible for her to shoot herself at the base of her skull in the back, then in her right temple, lie down, and finally place the pistol as de-scribed.

Demonstrating the improbability of the scene, I lay down on the floor of the courtroom during jury argument, holding the pistol in my left hand, at-tempting to place it to my right temple as well as to the base of my skull in the back. The jury got the picture, convicted Cuevas, and sent him to the penitentia-ry. His conviction was affirmed by the Court of Criminal Appeals.

As an aside, when I later was in-ducted as President of the Texas Crimi-nal Defense Lawyers Association, Jack Leon complimented me, saying that I had managed to make myself an effec-tive part of the evidence in my argu-ment to the jury. Jack was among the best of my courtroom combatants.

Fred and Lionel. In 1971, Fred Semaan and Lionel Goodstein invited me to office with them in the Tower Life Building. Shirley joined us shortly after that, and our experiences with them alone would fill a volume of highlights. Mr. Goodstein, President of SABA when Shirley and I moved to San Antonio in 1967, was a true “book” lawyer and unselfishly gave of his time and knowl-edge to young lawyers.

Fred was a rough and tough trial lawyer whose cross-examination skills were second to none. He and his broth-er, Judge Anees Semaan, became two of the first inductees into our Texas Crimi-nal Defense Lawyers Hall of Fame.

Fred could devastate a hostile witness and strip him naked in front of a jury. The numerous cases we tried together here in San Antonio and throughout South Texas constitute a treasure trove of learning for me. I draw on and profit from that knowledge daily.

Chief Judge Adrian Spears once told me that, although Fred was like a chain saw cutting butter in the court-room and would take full advantage of any and every opportunity to bore in and win an acquittal for his clients, he always conducted himself in an ethi-cal manner. Judge Spears also said that when Fred Semaan stated something as a fact and gave his word on it, that was sufficient for Judge Spears because Fred’s word was his bond. What bet-ter example could we lawyers have to guide us not only in our practice but in our daily lives?

Being of the “old school,” Fred sometimes had difficulty with women attorneys as opposing counsel. One day he got into a real clash with a certain woman prosecutor. He came back to the office from the courthouse fuming “that #@$%!! woman prosecutor . . . these #@$%!! women lawyers!”

Unbeknownst to Fred, Shirley was sitting in her office in full earshot of his tirade. Lionel admonished Fred to “cool it,” cautioning him that Shirley was in her office. Without missing a beat Fred exclaimed, “Hell, she’s no woman law-yer . . . Shirley’s a real lawyer!”

Joaquin Jackson, Texas Ranger: A Real Texas Ranger. The TV series “Walker, Texas Ranger” doesn’t come anywhere close to portraying the best of Texas Rangers. That role belongs to my longtime friend, now retired, Ranger Joaquin Jackson, whose exploits are leg-endary.

Some years ago, Joaquin agreed to advise, counsel, and instruct movie ac-tor Nick Nolte on how to look, act, walk, and talk like a Texas Ranger in the mov-ie Extreme Prejudice. Nolte promised to compensate him for his help. Joaquin fulfilled his end of the bargain and huge posters of Joaquin dressed in full Rang-er regalia, carrying his carbine by a cor-ral, were displayed around the movie set. Joaquin also flew to Hollywood for the movie’s premier and participated in the media hoopla with Nolte, Powers Booth, and other movie personalties.

Despite their agreement and Joa-

quin’s invaluable help, however, Nolte refused to pay him. Joaquin asked me for help. We filed suit against Nolte in the Western District here in San Anto-nio but had a tough time getting him served. Finally, we learned that Nolte was making another movie in Florida. We hired a process server who caught up with him there and told a guard that his wife wanted Nolte’s autograph on a photo he had. The unsuspecting guard pointed out Nolte’s trailer, and while he was autographing the photo, Nolte was hurriedly served with the citation, and the imaginative process server “hot footed it” out of there.

This solo practitioner from “Wich-taw Falls” subsequently had an inter-esting time dealing with several “high powered” Hollywood lawyers who tried to “snowball” us with “show-biz” gobbledegook. When it came down to whether they really wanted to try a case for a wealthy Hollywood actor against a famous Texas Ranger in the Western District of Texas, they thought better of it, settled the case, and paid Joaquin his just compensation. “One riot . . . one Ranger, Joaquin Jackson.”

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- Continued on page 22 -


eginning a new year is an opportune time to reflect on changes and to remind

ourselves of those little tidbits of information we may have forgotten.

Hyperlinks in BriefsSince January 1, 2014, the Texas

appellate courts have mandated electronic filing at the appellate court level. With the implementation of e-filing, the Texas Judiciary has endeavored to implement new and enhanced features to further bolster the effectiveness of filing documents electronically. One of those enhancements is the automatic hyperlinking of case citations in briefs to Westlaw Next. The ease of clicking a hyperlink that directs the reader to the applicable case expedites the review of briefs.

Automated hyperlinking is not a new concept. The United States Court of Appeals for the Fifth Circuit has used batch hyperlinking for some time, and it served as the model for Texas appellate courts. With approval from the Texas Supreme Court, the Office of Court Administration put in place the necessary technical and programming enhancements to allow for the integration of batch hyperlinking with the Texas Appellate Management E-filing System (TAMES). The hyperlinking program is now fully operational, so whenever a brief is filed, TAMES automatically hyperlinks case citations in briefs to Westlaw Next.

Alternative Dispute ResolutionThe Fourth Court’s alternative

dispute resolution (ADR) program has been in place for many years. During its last session, the Texas Legislature amended the Government Code to require

courts that appoint mediators to establish and maintain a list of persons registered with the court to serve as mediators. If the parties are unable to agree on a mediator, the court must appoint a mediator using a rotating system, appointing the person whose name appears first on the court’s mediator list and then placing that person’s name at the end of the list.

At a recent meeting, the Fourth Court justices discussed this legislative change and its effect on our ADR program. Parties who agree to participate in the Fourth Court’s ADR program are almost always able to agree on a mediator. Therefore, the justices decided that establishing a system to register mediators would not be an efficient use of the court’s time. As a result, the justices amended the court’s Internal Operating Procedures to provide that an appeal would not be referred to ADR if the parties are unable to agree on a mediator.

In September 2015, the Fourth Court welcomed a new legal assistant, Jacqueline Fennell. One of Ms. Fennell’s responsibilities is coordinating the ADR program with Justice Marialyn Barnard, who is the justice currently responsible for the ADR program.

MiscellaneousThe Fourth Court recently

implemented a policy prohibiting the taking of photographs in the courtroom while court is in session. Signs will be posted in the courtroom as a reminder.

In addition to our Local Rules and Internal Operating Procedures, the Fourth Court has several important court preferences posted under the “Practice Before the Court” link on our website. One of these preferences is that the court prefers citations to the record and

citations to supporting authorities be included in the body of the briefs and not placed in footnotes. With mandatory e-filing, this preference takes on even greater importance for two reasons. First, placing citations in the body of the briefs allows the justices and court attorneys to more efficiently read the briefs on a computer screen without having to scroll back and forth to and from the footnotes. Second, placing citations in the body of briefs facilitates the use of the newly implemented hyperlinks previously discussed.

All appellate practitioners are encouraged to regularly visit the Fourth Court’s website to stay updated on the latest court preferences and rules.

By Chief Justice Sandee Bryan Marion

B

F

ourth Court U

pdate

Chief Justice Sandee Bryan Marion has served on the Fourth Court of Appeals since January 2002, and has been the Chief Justice since January 1, 2015. Justice Marion served as Judge of Bexar

County Probate Court No. 2 from November 1992 until her appointment to the Fourth Court of Appeals. Prior to her election to the Probate Court bench, Justice Marion spent twelve years in private practice. She is board certified in family law by the Texas Board of Legal Specialization.

Miscellaneous Updates, Changes, and Reminders


Review of Disability Determination and Denial of BenefitsJamison v. Colvin, No. SA-15-CA-166-JWP (Primono, J., Oct. 5, 2015).

Magistrate affirmed Administrative Law Judge’s determination that claimant was not disabled and not entitled to disability and supplemental social security income. ALJ applied the proper legal standard and substantial evidence supported her decision. Court examined whether claimant met the five considerations set forth under 20 C.F.R. §§ 404.1520 and 416.920. ALJ had no obligation to inquire as to why claimant did not attend his consultative examination and, in not inquiring, did not fail to fulfill her duty to develop an adequate record. ALJ was warranted in concluding that claimant’s efforts to obtain unemployment benefits were inconsistent with a claim for disability. ALJ did not have to undergo Newton analysis because she also reviewed competing, first-hand medical evidence from other treating physicians. ALJ did not err in relying on the record’s residual functioning capacity assessment or the vocational expert’s testimony that the claimant may return to his past job as a car salesman.

Rule 59(e) Motion; EEOC SubpoenaEEOC v. A’GACI, LLC, No. SA-14-MC-445-DAE (Ezra, D., Oct. 26, 2015).

Employer refused to provide

information pursuant to an EEOC subpoena it contended was too broad, so the EEOC filed an application to enforce its subpoena. At the employer’s request, the court sealed much of the briefing. EEOC filed a motion for reconsideration of the court’s order granting employer’s motion to seal, which motion the court denied. District courts treat a motion for reconsideration under the same standard that governs FRCP 59(e) motions to alter or amend a final judgment, if, as here, it is filed within 28 days of the judgment. At issue in the motion was a finding that the EEOC violated 42 U.S.C. § 2000e-5 by reproducing large parts of an employee’s charge in the record. Court found it had committed no manifest error of law because Fifth Circuit law recognizes two separate non-disclosure provisions in the statute, including one preventing “the making available to the general public of unproven charges,”which applied here. Court reasoned that it would be “eminently unfair” to the employer for the EEOC to publish information obtained during its investigation prior to a determination that a valid complaint is made in the employee’s charge. Court likewise did not commit a manifest error in law in holding that an application to enforce an administrative subpoena is not a “proceeding” within the meaning of 42 U.S.C. § 2000e-8. Case law provided by EEOC, which used the term generally and applied to compel a National Labor Relations Board-issued subpoena, was not on point.

Motion to Compel Arbitration; Motion to Transfer VenueDuncan v. Banks, No. SA-15-CV-148-XR (Rodriguez, X., Sept. 16, 2015).

Plaintiff alleged that he entered into several investments at the encouragement of Banks. Three of

the investments were governed by agreements containing choice of law and arbitration provisions and Banks moved to compel arbitration. In order to evaluate the motion, the court first had to determine what law to apply. A federal judge sitting in diversity follows the choice of law rules of the state in which the court sits. In Texas, contractual choices of law are generally upheld. The choice of law provisions in the three investment agreements call for Delaware law. Under the Second Restatement of Conflict of Laws test followed in Texas, applying Delaware law is proper because there is a substantial relationship among the parties, the fund agreements, and Delaware; Texas does not have a materially greater interest in the outcome of the case; Texas has no fundamental policy that Delaware law would violate; and the case would be resolved the same way under either state’s law. Evidence was “clear and unmistakable” that by their agreements the parties delegated the question of arbitrability to the arbitrator and that there was a plausible argument that the assertion of arbitrability was not “wholly groundless.” Thus, arbitrability would be decided by the arbitrator. Banks, although a non-signatory, could rely on the arbitration provisions to compel arbitration both because the arbitration agreement covered “affiliates,” which Banks was, and under doctrine of equitable estoppel. Claims related to other investments could not be sent to arbitration under a claim of gateway arbitration. However, one additional investment contained a valid, enforceable forum selection clause. Banks, although a non-signatory, could enforce the forum selection clause because he was closely related” to a signatory or under doctrine of equitable

F

ederal Court U

pdate

If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano ([email protected], 210-787-4654) or Melanie Fry ([email protected], 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.

Federal Court UpdateBy Soledad Valenciano and Melanie Fry


estoppel. Accordingly, court granted motion to transfer claims relating to that investment.

Remand; Improper Joinder; Insurance AgentSpar Enters., LP v. The Cincinnati Ins. Co., 5:15-CV-00661-RP (Pitman, R., Oct. 30, 2015).

Hotel sued insurance company and insurance company’s adjuster for breach of contract, Texas Insurance Code violations, DTPA violations, and breach of good faith and fair dealing related to storm-damaged property. Insurance company removed, alleging that adjuster, a Texas citizen, was improperly joined. Plaintiff moved to remand. Court granted motion to remand, holding that plaintiff’s pleading alleged conduct by adjuster sufficient to state Insurance Code and DTPA claims. Court noted that other federal district courts have interpreted new Texas Rule of Civil Procedure 91a.1 as creating a pleading standard analysis similar to Federal Rule 12(b)(6), but court rejected this view and held that TRCP 91a.1 does not supersede prior fair-notice pleading requirements of TRCP 45. Although breach of contract and good faith and fair dealing claims could not stand against adjuster even under fair-notice standard, petition stated claims against adjuster for Insurance Code and DTPA violations because adjuster allegedly prepared an estimate and orchestrated the inspections.

Personal Jurisdiction; Declaratory Judgment; InsuranceMaxum Indem. Co. v. BRW Floors, 5:15-cv-00167-RCL (Lamberth, R., Oct. 7, 2015).

When defendant insured was sued in Texas state court for manufacturing allegedly defective wood flooring, defendant sought defense and indemnity from plaintiff insurer. Five days after plaintiff denied coverage, it filed declaratory judgment action in the Western District of Texas, seeking a declaration that it was not liable under the policy. Defendant moved to dismiss for lack of personal jurisdiction. Defendant did not challenge personal jurisdiction

in underlying products suit, but argued that jurisdiction could only exist in the insurance suit if its contacts with Texas related to the insurance policy at issue. The Fifth Circuit has not addressed the issue. Court denied defendant’s motion and allowed plaintiff to take limited jurisdictional discovery. Regardless of whether stream-of-commerce theory used in products actions applies in insurance disputes, defendant’s alleged sales to Texas distributors were sufficient minimum contacts. In a declaratory judgment action by an insurer against its insured, a court may exercise personal jurisdiction over an insured where insured’s only contacts with the forum are those predicating the insurance dispute itself. Where a manufacturer insures itself against the financial risks inherent in the manufacture and sale of a product, it is eminently foreseeable that the manufacturer may be required to litigate claims arising from both the product and the contract insuring the product in the states where it purposefully directs and sells that product. Court also denied defendant’s motion to dismiss in favor of defendant’s parallel, later-filed action in the Southern District of Florida. Although insurer filed suit five days after denying claim, its quick filing did not amount to a “race to the courthouse” that inequitably deprived defendant of its right as “true plaintiff” because defendant waited five months to bring its own action in Florida.

Arbitration; Adhesion ContractGrasso Enters., LLC v. CVS Health Corp., SA-15-CV-427-XR (Rodriguez, X., Oct. 28, 2015).

Plaintiff pharmacy owner sued defendant regarding claims-processing procedures. Court granted defendant’s Motion to Compel Arbitration and rejected plaintiff’s argument that arbitration agreement was illusory and unconscionable because defendant could “unilaterally” amend the contract. Contract required defendant to give notice of amendments and allowed pharmacy to reject amendment by ceasing to

submit claims to defendant; thus, defendant could not “unilaterally” amend. “Take it or leave it” nature of contract did not render arbitration clause unenforceable. Court rejected plaintiff’s argument that confidentiality requirement in arbitration clause gave defendant an unfair advantage as the more repeat player against other pharmacies in arbitration with enhanced institutional knowledge. Court denied defendant’s request to dismiss action. Although Fifth Circuit has held that Federal Arbitration Act’s provision that the “court shall stay” proceedings pending arbitration still allows district court discretion to dismiss a case, court restated plain words of FAA and exercised discretion to stay the action. Court denied plaintiff’s Motion for Preliminary Injunction regarding unlawful retaliation against plaintiff for filing suit. Parties’ adoption of American Arbitration Association rules constituted clear and unmistakable evidence that parties agreed to arbitrate arbitrability, and judicial inquiry needed to determine the propriety of injunctive relief would inject the court into the merits of issues more appropriately left to arbitrator. Although appointment of an arbitrator may not occur before allegedly retaliatory action was taken, plaintiff waited two months after it learned of retaliatory action before seeking injunction.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC. Melanie Fry practices commercial litigation and appellate law with Dykema Cox Smith.

1089, 1093, 1104 n.12 (W.D. Tex. 1988).4County v. State, 668 S.W.2d 708, 711 (Tex. Crim. App. 1984). Charlie would be the first to insist that his co-counsel, Shirley Butts, be given proper credit for the appellate victory.5County v. State, 812 S.W.2d 303, 310 (Tex. Crim. App. 1989). Judge Bill White, former Bexar County District Attorney, did not participate in the decision.6Id. at 310-11.7Id. at 316.8Id. at 317.9And so was Bobby Willman.10County v. State, No. 04-92-00347-CR (Tex. App.—San Antonio 1994, no pet.)(not designated for publication).11While working in Tarrant County, Charlie assisted in the prosecution of Kenneth Allen McDuff for a triple murder in 1966. The jury in that case sentenced McDuff to death, but his sentence was commuted to life imprisonment following the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972). McDuff was paroled in 1989 and was later convicted of multiple capital murders that earned him the title of “The Most Notorious Serial Killer in Texas History.” The 1966 trial is detailed in Bad Boy from Rosebud, written by Gary M. Lavergne.12To listen to the interview, go to http://tcdla.com/TCDLA/Past_Presidents/17-Charles_Butts.aspx (last visited Nov. 16, 2015).13County v. State, 668 S.W.2d 708 (Tex. Crim. App. 1984); Grayless v. State, 567 S.W.2d 216 (Tex. Crim. App. 1978).14My wife, Stephanie Stevens, the best lawyer I know.

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- Continued from page 14 -

EnDnOTES

1Unfortunately, space does not permit us to re-publish more of Charlie’s wonderful war stories here, but the rest of his stories appear in the articles listed below, most of which are available in the San Antonio Lawyer archives posted on the SABA website:

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part I, San antonio Lawyer, July-Aug. 1999, at 3-8.

- Continued from page 18 -

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part II, San antonio Lawyer, Sept.-Oct. 1999, at 5-11.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part III, San antonio Lawyer, Mar.-Apr. 2000, at 12-15.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part IV, San antonio Lawyer, Nov.-Dec. 2000, at 11-13, 16.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part V, San antonio Lawyer, Mar.-Apr. 2001, at 14-16.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part VI, San antonio Lawyer, Mar.-Apr. 2004, at 12-13, 22.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part VII, San antonio Lawyer, May-June 2004, at 9-11, 22.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part VIII, San antonio Lawyer, Sept.-Oct. 2004, at 10-14.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part IX, San antonio Lawyer, May-June 2005, at 12-13.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering, Part X, San antonio Lawyer, Sept.-Oct. 2007, at 12-14, 19.

Charles D. (Charlie) Butts, Highlights of My Second 50 Years of Lawyering (60 Years and Counting), San antonio Lawyer, July-Aug. 2009, at 8-10, 22.

Charles D. (Charlie) Butts, Highlights of My First 50 Years of Lawyering (Plus 13 and Counting), San antonio Lawyer, Nov.-Dec. 2012, at 12-14.

Charles D. (Charlie) Butts, The Eagle Ford, “It’s Déjà Vu All Over Again,” San antonio Lawyer, May-June 2014, at 14-16.

Charles D. (Charlie) Butts, Do You Play Golf, Charlie? San antonio Lawyer, Mar.-Apr. 2015, at 17.2”Shirley” refers to Shirley Butts, who would later become Charlie’s wife of forty-eight years. Shirley, an outstanding lawyer herself, is a retired Justice of the Fourth Court of Appeals.3See Skillern v. State, 609 S.W.2d 762 (Tex. Crim. App. 1980).4456 S.W.2d 110 (Tex. Crim. App. 1970).5424 S.W.2d 416 (Tex. Crim. App. 1968).

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