Amicus Curiae Brief — Brian Dale Nixon, Petitioner v. Texas

No. 24-6403

IN THE

Supreme Court of the United States

————

BRIAN DALE NIXON,

Petitioner,

v.

THE STATE OF TEXAS,

————

Respondents.

On Petition for a Writ of Certiorari from the

Court of Criminal Appeals of Texas

————

AMICUS CURIAE BRIEF OF THE TEXAS

CRIMINAL DEFENSE LAWYERS ASSOCIATION

IN SUPPORT OF THE PETITIONER

————

KYLE THERRIAN

ROSENTHAL, KALABUS

& THERRIAN

7200 State Highway 121

Ste 400

McKinney, Texas 75070

(972) 369-0577

kyle@texasdefensefirm.com

DAVID GUINN

Counsel of Record

HURLEY, GUINN, SINGH &

VONGONTEN

1805 13th Street

Lubbock, Texas 79401

(806) 771-0700

david@hurleyguinn.com

AARON M. DIAZ

ST. MARY’S UNIVERSITY

SCHOOL OF LAW

2507 NW 36th Street

San Antonio, Texas 78228

(210) 436-3840

adiaz39@stmarytx.edu

Counsel for Texas Criminal Defense Lawyers Association

February 27, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICUS CURIAE .....................

1

SUMMARY OF THE ARGUMENT ....................

1

ARGUMENT ........................................................

2

I. Callous indifference permeates the ethos

of a correctional facility ............................

3

A. It is a truism that people perceive

prisoners as deserving of their status

3

B. Experiences bear out the truism.........

6

1. The Stanford Prison Experiment ..

6

2. Data and anecdotal evidence .........

8

II. A sign that says “Jail” is but one of many

sensory details ..........................................

13

PRAYER...............................................................

16

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Coffin v. United States,

156 U.S. 432, 453 (1895) ...........................

2

Deck v. Missiouri,

544 U.S. 622 (2005) ............................... 2. 3, 5, 6

Estelle v. Williams,

425 U.S. 501 (1976) ...................................

2

In re Winship,

397 U.S. 358 (1970) ...................................

2

Jacobellis v. Ohio,

378 U.S. 184 (1964) ..................................

14

Nixon v. State,

No. PD-0556-23, 2024 WL 4829786

(Tex. Crim. App. Nov. 20, 2024) ............... 9, 14

People v. Harrington,

42 Cal. 165 (1871) .....................................

5

Rex. v. Layer,

16 How. St. Tr. 94 (1722) ..........................

5

Taylor v. Kentucky,

436 U.S. 478, 485 (1978) ...........................

2

CONSTITUTION

U.S. Const. amend. VIII ............................... 9, 11

U.S. Const. amend. XIV ...............................

11

OTHER AUTHORITIES

2 W. Hawkins, Please of the Crown (17161721) ..........................................................

6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

4 W. Blackstone, Commentaries on the

Laws of England (1769) ............................

3-5

9 J. Wigmore, Evidence (3d ed. 1940)..........

2

About Us, The Marshall Project (Feb. 25,

2025), themarshallproject.org/about ........

8

Jessica Adler & Weiwei Chen, Jail Conditions

and Mortality: Death Rates Associated

With Turnover, Jail Size, and Population

Characteristics, 42 Health Aff. 6 (2023),

https://www.healthaffairs.org/doi/10.137

7/hlthaff.2022.01229 .................................

11

Louis Ratcliff, A Filthy New Orleans Jail

Made My Son Sick. The ‘Cruel and

Unusual’ Medical Treatment at Angola

Prison Killed Him, The Marshall Project

(July 2021), https://www.themarshallpro

ject.org/2021/07/29/a-filthy-new-orleansjail-made-my-son-sick-the-cruel-and-unu

sual-medical-treatment-at-angola-prisonkilled-him .................................................. 9, 10

Lyle May, Breaking the Unwritten Rule of

Prison, The Marshall Project (Aug. 30,

2018), https://www.themarshallproject.

org/2018/08/30/breaking-the-unwrittenrules-of-prison ...........................................

9

Maria Konnikova, The Real Lesson of the

Stanford Prison Experiment (June 12,

2015), https://www.newyorker.com/scien

ce/maria-konnikova/the-real-lesson-of-thestanford-prison-experiment ......................

6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Nicole Lewis, How We Survived COVID-19

In Prison, The Marshall Project (Apr.

2021), https://www.themarshallproject.org/

2021/04/23/how-we-survived-covid-19-inprison .........................................................

10

Phillip G. Zimbardo, Stanford Prison

Experiment slideshow narration, 5 Phillip

G. Zimbardo papers (1971), https://purl.

stanford.edu/gn204mr8406 ......................

7

Press Release, Justice Department Finds

Conditions at Fulton County Jail in

Georgia Violate the Constitution and

Federal Law (Nov. 14, 2024), https://

www.justice.gov/archives/opa/pr/justicedepartment-finds-conditions-fulton-coun

ty-jail-georgia-violate-constitution-and ....

11

Pub. L. No. 96-247, § 7, 94 Stat. 349, 352

(1980) .........................................................

11

Pub. L. No. 104-134, tit. VIII, 110 Stat.

1321 (1996) ................................................

11

The Stanford Prison Experiment, Selected

Lectures and Presentations: Hearing

Before the S. Comm. of the Comm. on the

Judiciary (Oct. 1971) ................................

7

Thomas Hobbes, Leviathan (Richard Tuck

ed., 1991) ...................................................

3, 4

INTEREST OF AMICUS CURIAE 1

The Texas Criminal Defense Lawyers Association

(TCDLA) is a non-profit voluntary membership organization dedicated to the protection of those individual

rights guaranteed by the state and federal constitutions

and to the constant improvement of the administration

of criminal justice in the State of Texas.

Founded in 1971, TCDLA currently has a membership

of over 3,400 and offers a statewide forum for criminal

defense counsel, provides a voice in the state legislative

process in support of procedural fairness in criminal

defense and forfeiture cases, and assists the courts by

acting as amicus curiae.

Neither TCDLA nor any of the attorneys representing

TCDLA have received any fee or other compensation

for preparing this brief, which complies with all

applicable provisions of the Supreme Court Rules, and

copies have been served on all parties.

SUMMARY OF THE ARGUMENT

A jail is a place where society places people

prejudged to have committed a crime sufficient to

require their confinement. Centuries of common law

and precedent declare it improper for a court to permit

a juror to perceive a criminal defendant as a prisoner.

It is stated as a given that doing so impairs the

presumption of innocence in an indelible and unprovable

way. Amicus writes to expand upon what has always

TCDLA timely notified counsel for the petitioner of its intent

to file a brief at least ten days prior to its due date. Rule 37. Lead

counsel for TCDLA authored this brief in part. No counsel for

a party to this matter participated in drafting. Rule 37.6.

No counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. Id.

1

2

been assumed. Our society simply perceives prisoners

as deserving of their status and undeserving of

empathy or even the benefits of our social contract.

It is unclear whether the Texas Court of Criminal

Appeals (TCCA) agrees with this sentiment because

the TCCA rejects the notion that members of the

public would perceive a building at issue in this case—

one with a sign that says “JAIL”—as a jail fulfilling the

purposes of a jail. For this reason, Amicus also writes

to share the observations of criminal defense lawyers

in the unique features that distinguish a jail from

typical government buildings.

ARGUMENT

For over a century, this Court has recognized the

presumption of innocence as an undoubted principle of

criminal law. Coffin v. United States, 156 U.S. 432, 453

(1895). The presumption “serve[s] as an admonishment to the jury to judge an accused’s guilt or

innocence solely on the evidence adduced at trial and

not on the basis of suspicions that may arise from the

fact of his arrest, indictment, or custody, or from other

matters not introduced as proof at trial.” Taylor v.

Kentucky, 436 U.S. 478, 485 (1978) (emphasis added);

see Estelle v. Williams, 425 U.S. 501 (1976); In re

Winship, 397 U.S. 358 (1970); 9 J. Wigmore, Evidence

§ 2511 (3d ed. 1940). It is “an inaccurate, shorthand

description of the right of the accused to ‘remain

inactive and secure, until the prosecution has taken

up its burden and produced evidence and effected

persuasion; . . .’ an ‘assumption’ that is indulged in the

absence of contrary evidence.” Taylor, 436 U.S. at 484.

This Court’s opinion in Deck v. Missiouri followed

accordingly by holding that the Constitution forbids

trial courts from shackling a defendant in front of the

3

jury unless justified by an essential state interest.

Deck v. Missiouri, 544 U.S. 622, 630 (2005). Nevertheless, the TCCA’s opinion below ignored Deck and

allowed Nixon’s jailhouse trial to stand. Amicus

offers guidance to the Court through historical and

anecdotal data supporting its position that the TCCA

wrongly decided Nixon’s case.

I. Callous indifference permeates the ethos

of a correctional facility.

A. It is a truism that people perceive

prisoners as deserving of their status.

The prisoner is to be called to the bar by his

name; and it is laid down in our ancient books,

that, though under an indictment of the

highest nature, he must be brought to bar

without irons, or any manner of shackles or

bonds; unless there be evident danger of an

escape, and then he may be secured with irons.

4 W. Blackstone, Commentaries on the Laws of

England 317 (1769). But the “why?” seems only ever

answered by the assumptions of legal scholars,

undoubtedly studied in the philosophy of human

nature. The plainly stated and consistent sentiment is

steeped in an assumed understanding of sociology and

philosophy. Prisoners and the facilities that house

them embody the state of nature from which we have

organized to escape. See Thomas Hobbes, Leviathan 89

(Richard Tuck ed., 1991) (among other things, a place

of perpetual suspicion of one another). 2 Only the best

2

Hobbes wrote:

Whatsoever therefore is consequent to a time of Warre,

where every man is Enemy to every man; the same is

consequent to the time, wherein men live without other

security, than what their own strength, and their own

4

of us can resist the impulse to perceive a prisoner as a

fellow citizen undeserving of the continued benefits of

our social contract who lives in a place to ensure this

expectation. With this, the backdrop of the instant case

becomes not only the jail in which the defendant was

tried but also the most un-“natural” of agreements in

our social contract: an agreement to presume one

another innocent upon accusation. If Blackstone’s

maxim (or the development thereof) is a recognition

that shackles and the like are conspicuous reminders

that the person to whom the presumption is owed has

already been cast among the others less deserving,

then the rule must exist to avoid the undue burden on

invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit

thereof is uncertain; and consequently no Culture of

the Earth; . . . no account of Time; no Arts; no Letters;

no Society; and which is worst of all, continuall feare,

and danger of violent death; And the life of man,

solitary, poore, nasty, brutish, and short.

It may seem strange to some man, that has not well

weighed these things; that Nature should thus

dissociate, and render men apt to invade, and destroy

one another: and he may therefore, not trusting to this

Inference, made from the Passions, desire perhaps to

have the same confirmed by Experience. Let him

therefore consider with himselfe, when taking a

journey, he armes himselfe, and seeks to go well

accompanied; when going to sleep, he locks his dores;

when even in his house he locks his chests; and this

when he knows there bee Lawes, and publike Officers,

armed, to revenge all injuries shall bee done him; what

opinion he has of his fellow subjects, when he rides

armed; of his fellow Citizens, when he locks his dores;

and of his children, and servants, when he locks his

chests. Does he not there as much accuse mankind by

his actions, as I do by my words?

Hobbes, supra.

5

a juror’s already difficult task of assuming nothing

whatsoever in the State’s favor.

In Deck, this Court tracked the development of

Blackstone’s rule and the diverging justifications for

avoiding the perception of the defendant as a prisoner.

Deck, 544 U.S. at 630. Initially, courts endeavored to

ensure the defendant’s dignity and facilities so that

he could assist in his case. 3 Quite literally, physical

restraints impaired the defendant’s ability to participate. But parallel justifications developed almost at

once. Courts recognized an obligation to preserve

the dignity of the tribunal itself and then eventually

the need to avoid such a practice because it would

“undermine[] the presumption of innocence and the

related fairness of the factfinding process.” Deck, 544

U.S. at 631. To avoid the “Mark of Ignominy and

Reproach” became the primary justification that a

This sentiment developed through the English common law

and became part of the early American concept of a fair trial.

3

“every defendant is entitled to be brought before the

court with the appearance, dignity, and self-respect of

a free and innocent man, except as the necessary safety

and decorum of the court may otherwise require.”

Rex. v. Layer, 16 How. St. Tr. 94 (1722).

In my opinion any order or action of the Court which,

without evident necessity, imposes physical burdens,

pains, and restraints upon a prisoner during the

progress of his trial, inevitably tends to confuse and

embarrass his mental faculties, and thereby materially

to abridge and prejudicially affect his constitutional

rights of defense and especially would such physical

bonds and restraints in like manner materially impair

and prejudicially affect his statutory privilege of

becoming a competent witness and testifying in his

own behalf.

People v. Harrington, 42 Cal. 165, 168 (1871).

6

defendant not present as a prisoner before a jury

under American constitutional law. Id. (quoting 2 W.

Hawkins, Please of the Crown, ch. 28, § 1, p. 308 (17161721). But whether stated in Early Modern English or

common parlance, it has rarely deviated from a simple

truism that jurors think prisoners are guilty. While we

think this generalization is as correct as it is engrained

in the law, there is more to be said than an insistence

that courts genuflect to centuries of legal precedent.

B. Experiences bear out the truism.

1. The Stanford Prison Experiment

The Stanford prison experiment famously pitted

average college students against one another as

guards and prisoners in a controversial psychological

study.

According to the lore that’s grown up around

the experiment, the guards, with little to no

instruction, began humiliating and psychologically abusing the prisoners within twentyfour hours of the study’s start. The prisoners,

in turn, became submissive and depersonalized, taking the abuse and saying little in

protest. The behavior of all involved was so

extreme that the experiment, which was

meant to last two weeks, was terminated

after six days.

Maria Konnikova, The Real Lesson of the Stanford

Prison Experiment (June 12, 2015), https://www.new

yorker.com/science/maria-konnikova/the-real-lesson-ofthe-stanford-prison-experiment.

We wanted to see just what were the

behavioral and psychological consequences of

becoming a prisoner or prison guard. To do

7

this, we decided to set up our own prison, to

create or to simulate a prison environment

and then to carefully note the effects of this

total institution on the behavior of all those

within its walls

* * *

As a consequence of the time we spent in our

simulated prison, we could understand how

prison, indeed how any total institution, could

dehumanize people, could turn them into

objects and make them feel helpless and

hopeless, and we realized how people could do

this to each other.

Phillip G. Zimbardo, Stanford Prison Experiment

slideshow narration, 5 Phillip G. Zimbardo papers at

SC0750 (1971), https://purl.stanford.edu/gn204mr8406.

The thrust of lessons publicized in the wake of the

experiment focused on the cruelty and outright torture

that ensues based merely on the role assignment of

guard and prisoner. But other lessons are derived. The

assumed deservedness of a prisoner’s mistreatment

and the failure to speak out against it are psychological responses that existed not merely because of an

artificial power dynamic. Zimbardo remarked that the

mere act of assigning the label of prisoner to people

elicited a pathological behavior. The Stanford Prison

Experiment, Selected Lectures and Presentations:

Hearing Before the S. Comm. of the Comm. on the

Judiciary 114 (Oct. 1971).

Presumably, the experiment would not have

produced the same result if it had been titled the

Stanford Courtroom Experiment, and the roles were

prison guard and “man sitting at table.” Undeniably,

8

the role of “prisoner” is inextricably linked to the

treatment they received.

2. Data and anecdotal evidence

The Marshall Project promotes itself as a “nonprofit

news organization that seeks to create and sustain a

sense of national urgency about the U.S. criminal

justice system.” About Us, The Marshall Project (Feb.

25, 2025), themarshallproject.org/about. Among a list

of recurring topics is the plight of prisoner life. One

journalist writes about “Breaking the Unwritten Rule

of Prison” with the alternate title “Or, what happens

when guards and prison staff interact as just human

beings.” The article drives a prevailing theme of

human decency and kindness existing as a rarity in a

correctional institution.

Some other staff members have gone out of

their way to be kind, patient, respectful and

compassionate. Ms. Johnson always gave us

extra time for outside rec, waiting until a

sergeant radioed her.

Mr. Sutherland liked talking about fishing —

with anyone. If you could discuss the difference

between saltwater and freshwater fly-fishing,

he’d turn a blind eye in the chow line if you

wanted another tray.

These were the simple courtesies that made

our time and their job easier. TVs allowed to

stay on after curfew, cell doors left open a bit

longer than usual, maybe even a movie that a

unit manager would bring us from home.

* * *

But for most, the unwritten rule on death row

has remained: disinterest, allegiance to policy,

9

frequent staff turnover to reduce familiarity,

and above all a belief in the status quo.

Flouting the idea that inmates are “less than”

is not to be accepted.

Lyle May, Breaking the Unwritten Rule of Prison, The

Marshall Project (Aug. 30, 2018), https://www.them

arshallproject.org/2018/08/30/breaking-the-unwrittenrules-of-prison.

The TCCA’s opinion below supports Nixon’s jailhouse

with a suggestion that “average jurors may have more

likely understood that the government and the courts

use whatever facilities they have available to get their

work done, and that the facility where a trial is held

ordinarily does not reflect inherently on the guilt or

dangerousness of an accused.” Nixon v. State, No. PD0556-23, 2024 WL 4829786 *6 (Tex. Crim. App. Nov. 20,

2024). This is inconsistent with actual experiences in

the criminal justice system. Jails are where society

houses people who have been prejudged to have done

something wrong, prejudged to be dangerous, and

prejudged to be a risk to society. If this weren’t true,

we would not have bars on the windows, guards at the

doors, and all of the accoutrements and trappings of

involuntary confinement. Examples of the impact such

a facility has on human behavior abound.

From the lack of medical care to the physical and

mental abuse inmates sustain, jails promote or accept

an ethos of callousness toward human suffering. Jails

also create an environment for long-term illnesses and

related deaths. In Louisianna, a judge ruled that the

Louisiana State Penitentiary violated Farrell Sampier’s

Eighth Amendment rights after Sampier died in custody from a lack of medical attention. Louis Ratcliff, A

Filthy New Orleans Jail Made My Son Sick. The ‘Cruel

and Unusual’ Medical Treatment at Angola Prison

10

Killed Him, The Marshall Project (July 2021),

https://www.themarshallproject.org/2021/07/29/a-filthynew-orleans-jail-made-my-son-sick-the-cruel-and-unu

sual-medical-treatment-at-angola-prison-killed-him.

Sampier developed an infection in a New Orleans jail

while awaiting to be transferred to prison. Id. By the

time he was transferred, Sampier was confined to a

wheelchair from the disease—which was likely the

result of unsanitary jail conditions. Id. The medical

care in the Louisiana State Prison was no different, and

Sampier later died while shackled to a hospital bed. Id.

During the COVID-19 pandemic, which the TCCA

references, inmates were more vulnerable to contracting

the virus because of the unsanitary living conditions.

See Nicole Lewis, How We Survived COVID-19 In

Prison, The Marshall Project (Apr. 2021), https://www.

themarshallproject.org/2021/04/23/how-we-survivedcovid-19-in-prison (discussing the lack of medical care

and protective measures taken by prison officials

during the pandemic). Contrary to the TCCA’s hypothesis, most people were afraid to go to any sort of

correctional facility during the pandemic. Their fears

were not derived from refreshing the Marshall Project

homepage but rather from an understanding of the

minimal resources our government dedicates to the

conditions of its jails and prisons. And whether the

public’s fear was well-founded, it is at least a commentary on the societal belief and tacit agreement that

those forced to live in correctional facilities are

deserving of their plight (or undeserving of efforts to

implement change).

Studies and investigations support these anecdotes.

“Negligent health care,” “chronic rates of infectious

disease,” “unsanitary living conditions,” and “a prevalence of avoidable jail-base deaths” are all observations

11

made by the National Institute of Health when combing

data relating to the health and safety inside of

detention facilities. Jessica Adler & Weiwei Chen, Jail

Conditions and Mortality: Death Rates Associated With

Turnover, Jail Size, and Population Characteristics, 42

Health Aff. 6 (2023), https://www.healthaffairs.org/doi/

10.1377/hlthaff.2022.01229. Less than a year ago, the

U.S. Justice Department found such conditions existed

in a jail operated by a well-known county seeking

to incarcerate the president failed to even satisfy

the minimal standards of the Eighth and Fourteenth

Amendments. Press Release, Justice Department

Finds Conditions at Fulton County Jail in Georgia

Violate the Constitution and Federal Law (Nov. 14,

2024), https://www.justice.gov/archives/opa/pr/justicedepartment-finds-conditions-fulton-county-jail-georgiaviolate-constitution-and.

Not surprisingly, experiences like these are not

remote and have often led to federal responses, such as

the Prison Litigation Reform Act passed to empower

prisoners to file lawsuits challenging prison and jail

conditions, or the Civil Rights of Institutionalized

Persons Act that gave rise to the more widespread

Justice Department investigations and federal consent

decrees regarding the conditions in state detention

facilities. Pub. L. No. 104-134, tit. VIII, 110 Stat. 1321

(1996); Pub. L. No. 96-247, § 7, 94 Stat. 349, 352 (1980).

Finally, the daily experiences of the members of this

Organization reassure Amicus that these data points

are not cherry-picked support in the promotion of a

hasty generalization. One of the authors of this brief

can recount an instance where a client suffered a

medical emergency in a locked room during a Zoom

visitation. He watched as his client suffered a seizure

and begged jail personnel to respond, begged the

12

Sheriff’s office to respond, and begged the fire department

to respond against their protocols requiring a request

by jail officials themselves. After 24 minutes, the

priority of the first person to respond to the room was

to shut down the video feed while his client convulsed

on the floor. Counsel has witnessed masses of people

sleeping on the floor of the jail lobby, each waiting to

be booked in on their voluntary surrender. Counsel can

recall countless stories of clients being sat in a plastic

chair for 72 hours in the booking area because of the

inconvenience or inefficiency of housing people who

would likely post bail within that same period. And

Counsel can recall thinking of this plastic chair dilemma

when believing those sleeping on a dirty floor were

likely better off. Experiences like these are shared

among members of this bar, but there are even subtle

examples of callousness that members of the public

and the Court alike could experience for themselves.

One way to do so is by calling a jail and suffering the

torture of listening to Opus No. 1 (also known as the

Cisco Unity Hold Music) loop for hours while waiting

to speak to anyone about an important issue.

Amicus shares this information not to suggest that

correctional facilities employ the worst among us.

Indeed, we think the opposite. But behind the cinderblock walls permeates a haunted human psychology.

Shadenfreude is not quite the right word to describe

it. That term suggests a feeling of pleasure that

comes from witnessing another person’s suffering.

That another person deserves nothing more than the

suffering they experience and is not worthy of your

efforts to prevent it is the variation of Shadenfreude

we wish there were a term for. It is the notion that

underlies this court’s jurisprudence when it states

plainly that viewing a defendant as a prisoner impairs

the presumption of innocence. But importantly, it is an

13

ethos that emanates within this type of facility—a

type of facility the members of this Organization have

become well and personally acquainted.

II. A sign that says “Jail” is but one of many

sensory details.

There is a certain odor that exists in a jail that is

generously described as a mix between Clorox Bleach

and microwaved chicken nuggets.

The TCCA notes in its opinion the observations that

an average juror could have made regarding the

facility where they were summoned to adjudicate Mr.

Nixon’s guilt.

The photos show that a sign posted above the

entrance to the building read “Medina County

Jail[.]” After entering the building through a

glass door and passing through an outer

vestibule that provides access to restrooms

and vending machines, visitors enter a main

lobby either through another glass door or a

metal detector. The main lobby includes:

(1) a reception window for, and entrance to,

the Sheriff’s Department; (2) doors to two

visitation rooms and a multi-purpose room;

(3) a jail information window; (4) a door

stating “Authorized Personnel Only[,]” which

the witness identified as the entrance to the

jail; and (5) a pair of double doors leading into

the auxiliary courtroom where Appellant’s

trial was held. A placard on the entrance to

the courtroom reads: “District Court in

Session[.]” Along the way, visitors encounter

multiple signs advising that cell phones,

cameras, recording devices, food or drink,

14

purses, packages, and openly carried handguns

are prohibited.

Nixon, 2024 WL 4829786, at *4–5. Amicus believes the

TCCA’s own citation to the record shows sufficiently

why the TCCA was wrong to describe the Medina

County Jail as some generalized government building

or multi-purpose facility that would evoke nothing

whatsoever in the mind of a juror. However, Amicus

would be remiss if it did not share its own general

experiences regarding what distinguishes a jail from

the county tax office, the DMV, or the parks and

wildlife department.

Justice Potter Stewart famously described his

ability to identify hard-core pornography with the

phrase, “I know it when I see it.” Jacobellis v. Ohio,

378 U.S. 184, 197 (1964) (Stewart, J., concurring).

Surely, he never envisioned criminal defense lawyers

referencing it as a segue into their expertise in

knowing the difference between jails and non-jails, but

it is far too appropriate. There is most certainly a je ne

sais quoi to a jail’s atmosphere that is difficult to

describe, but you unquestionably “know you’re in one

when you’re in one.” Heavy metal doors send chills not

only because they are cold in temperature but also

because of the distinct sound of their slamming

followed by the electric whirring of a bolt locking it

shut. Sometimes, doors are not the only noise of

slamming. Inmates left in visitation rooms, solitary

confinement, or whatever room they prefer not to be in

can be heard banging on walls and windows in hopes

that an end to their ruckus might be preferential to

whatever end is achieved by keeping them where they

are. As one roams the halls, there are encounters with

jailers and staff conspicuously avoiding eye contact

or even more conspicuously sprinting somewhere to

15

manage an incident. But these aren’t the only people

working in the jail; people wearing orange or striped

jumpsuits typically perform difficult tasks like cleaning

toilets or picking up the dead bugs that have fallen

from the fiberglass ceiling tiles after being sprayed

with the chemicals that vaguely mask the aforementioned chicken nugget smell. The furniture is distinct

as well. Chairs are often affixed either to the floor or

the wall in front of impact-resistant windows. Other

times, they appear as though they are designed to be

hosed down. This serves as a reminder of how those

responsible for choosing furniture think of visitors and

inmates. Interspersed among those sitting in chairs

who came as visitors are those who were recently

converted to visitors. They typically hold a clear plastic

bag of their belongings as they await the ride they

summoned using the only public payphone in a

50-mile radius.

Jails are unique places, indeed. The aura of such a

facility is, in many ways, commensurate with the ethos

described in the preceding section. They are both

sterile and still gross, safe and still scary, unwelcoming

and still accommodating. The pictures in this case

speak for themselves, but were they not to, we lend our

expertise in what the differences between a jail and

innocuous government buildings.

16

PRAYER

The Court should grant the petition and set the case

for argument.

Respectfully submitted,

KYLE THERRIAN

ROSENTHAL, KALABUS

& THERRIAN

7200 State Highway 121

Ste 400

McKinney, Texas 75070

(972) 369-0577

kyle@texasdefensefirm.com

DAVID GUINN

Counsel of Record

HURLEY, GUINN, SINGH &

VONGONTEN

1805 13th Street

Lubbock, Texas 79401

(806) 771-0700

david@hurleyguinn.com

AARON M. DIAZ

ST. MARY’S UNIVERSITY

SCHOOL OF LAW

2507 NW 36th Street

San Antonio, Texas 78228

(210) 436-3840

adiaz39@stmarytx.edu

Counsel for Texas Criminal Defense Lawyers Association

February 27, 2025