Skip to Content Top

Blogs from June, 2016

Attorney Hesse Wins Daubert Hearing with Scientific Expert


Attorney D. Chris Hesse has recently won a Daubert hearing in the 240th District Court, securing a total case dismissal for his client. The success comes in large part to the hard work and honesty of Dr. Roy Malpass, who has been recognized by the Court of Criminal Appeals (CCA) in Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011), and Blasdell v. State, 470 S.W. 3d 59 (Tex. Crim. App. 2015) as an expert in the “soft science” of eyewitness identification – the Daubert standard for the soft sciencxes are governed by Nenno v. State, 970 S.W. 2d 549 (Tex. Crim. App. 1998). While the victory and case conclusion are of utmost importance, it is worth talking about all the tribulations and torrid moments that occurred during this 3+ years’ legal event.

Contempt, Mandamus, and Legal Obstacles

Attorney Hesse was court appointed to represent a client accused of Burglary of a Habitation with the Intent to Commit Sexual Assault in November of 2012. After a while of pursuing financial options, Hesse managed to get funding for an Eyewitness Identification Expert in 2014. The presiding judge for the case, Judge Culver, was reluctant to grant the funding to recruit Dr. Malpass but Hesse was able to convince him that it was crucial for the case to be tried fairly.

In February of 2015, Attorney Hesse went to trial with Dr. Malpass as an Expert. Despite absolutely no physical evidence linking the defendant to the crime, the Visiting Judge, Lee Duggan, allowed an unproven Attempted Sexual Assault to be introduced into the Guilt/Innocence stage of the trial and an adjudicated Public Lewdness out of Harris County. The prosecutors claimed that Hesse had opened the door to the unproven other crimes, wrongs, or acts, in that he had stated in opening statements that "it wasn't my guy (identity)." He was quick to point out that he was arguing that an element of the crime was negated, not that he had “opened the door.” The Judge allowed the extraneous crimes into the trial anyway.

The jury hung after a two week trial, which included Judge Duggan holding Attorney Hesse in Contempt for following along a line of questioning he did not approve. Unable to be deterred or intimidated by a court system that seemed intent on unfairly judging his client, Hesse was bonded out quickly after being booked into jail for Contempt. Attorney Butch Bradt is currently defending Hesse on the Contempt charge and that issue is up on appeal with the 1st Court of Appeals (COA).

In the meantime, the parent Judge, Judge Culver, Sua Sponte, removed Attorney Hesse from the case, arguably without proper cause and possibly for the personal reason of upsetting Visiting Judge Lee Duggan. Again, Butch Bradt defended Hesse and drafted a Mandamus to the Court of Appeals. The Court of Appeals denied the Mandamus and refused to reinstate Hesse. On appeal to the Court of Criminal Appeals, Judge Culver reinstated Hesse, rendering the Mandamus to the Court of Criminal Appeals a moot issue.

Justice, At Last

Judge Culver has since passed away and will be missed. He was replaced by a Judge that was originally from the District Attorney’s office. Recognizing that there could be a possible conflict of interest, Attorney Hesse asked that Judge to recuse himself, to which the Judge agreed and complied. Judge Jim Shoemake was introduced as his replacement, and the case started to gain some real traction.

During the Daubert Hearing in front of Judge Shoemake last week, Attorney Hesse and Dr. Roy Malpass challenged the State's Photo Array and Forensic Sketch Artist. The Photo Array, or a lineup of photographs used in lieu of an in-person lineup, was given after a Forensic Hypnosis session. Without requiring much explanation, you can already see why any bit of “proof” attained through so-called hypnosis should be taken with heavy skepticism. Holding the same sentiments, the Honorable Judge Jim Shoemake tossed out the Photo Array and Sketch.

The State, represented by the Chris Delozier, recognized that they had nowhere to turn for their argument. The case was immediately dismissed against Hesse’s client. After all the troubles and headaches and legal disagreements, it is with great pride that The Law Offices of D. Chris Hesse can say that our client is now a free man after being jailed for over 3 and 1/2 years without being able to bond out.

Attorney Hesse would like to thank Butch Bradt for believing in him, getting him reinstated to the case, and defending him against Judge Lee Duggan in the Contempt allegation. To quote Attorne Hesse, “Butch Bradt has inspired me to be a warrior.” He would also like to thank Dr. Roy Malpass for being there for him and the client, through thick and thin, and testifying in an incredibly adversarial setting. Finally, just Judges are rare, but we would all like to publicly thank Judge Jim Shoemake for being fair.

For more information about our law firm or what Amarillo Criminal Defense Attorney D. Chris Hesse can do for you in your own criminal case, call 806.686.2142. As this recent case victory shows, Attorney Hesse is willing to go any distance for his client, even standing up to the court itself and risking being held in contempt if it means justice is the end result. Shouldn’t you have someone like that on your side?