Three Hots and a Cot

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Saturday, October 10th, 2015
Three Hots and a Cot

We have been privileged to have many authors take part as continuing contributors to Voice for the Defense. Buck Files has done yeoman’s work with his “Federal Corner,” Kathleen Nacozy and Tim Crooks have been steadfast with their “Significant Decisions Report,” and Stephen Gustitis has been wonderful with his “Off the Back” articles. I was recently contacted by Pat Priest—an excellent trial judge in San Antonio, Texas—regarding him also becoming a continuing contributor to Voice. I want to welcome Judge Priest and give everyone a little background on him. His articles will provide some levity to the magazine and provide a humorous look back at his practice of law.

Judge Priest began law practice in San Antonio in 1968. He originally shared office space with some
great San Antonio lawyers—Sam and Charles Biery, Leonard Davis, and Bobby Myers, and later with George Cooper and Mayo Galindo, and still later with Nick Rothe and Justice Tony Cantu. Like all of us starting out, he originally handled anything that came his way. Soon, however, it became clear to him that his area of interest was criminal law. He volunteered for felony cases with both the then criminal district judges—Archie Brown and Anees Semaan, soon thereafter adding Jim Barlow, Johnny Benavides, and Peppy Dial when the 186th and 187th District Courts were
created in Bexar County and Dial succeeded Semaan in the 175th.

Court-appointed work paid very poorly in those days. Most pleas earned a $10 fee, and trials paid about $50 a day. He wanted experience, however, and did not want to have to work for the DA’s office to get it. He had gone to night law school while working as a casualty claims adjuster and was tired of working for somebody else. He obtained considerable trial experience in a hurry. The cases he has written about were all in San Antonio or South Texas, in either state or federal court. Most, though not all of the cases he has written about, were jury trials.

Thanks to his friendship with Charlie Butts and David Evans, he was a founding director of TCDLA and is very proud of what the association has become over the years. He was an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at St. Mary’s University School of Law from 1979 through 1999. He has been on the bench (or, since 2000) retired from the bench since November 1980.

I greatly enjoyed Judge Priest’s articles when I read them, and I thought they would be a great addition to the Voice. I hope you enjoy reading them as much as I. Thanks, Pat Priest, for your contribution to the Voice and your support of TCDLA since 1979.

—Michael Gross


Stan’s back was really hurting him. Not only that, but he had only 35 cents, and the bus ride to downtown San Antonio cost four bits. Worse, even if he could get downtown it was still going to be a several block walk to the Salvation Army Mission.

They’d been nice at the VA Hospital for the first two weeks, but after he’d told them three days ago that he wasn’t about to let them cut on his back, they had turned downright pushy. Fact was, they’d made him leave, claiming they “needed the bed for someone who’d cooperate with the treatment program.”

They had given him three hots and a cot for two and a half weeks, and he was grateful for that. Still, he had served his country during that “Police Action” in Korea, hadn’t he, and so the country owed him a little something.

As he was walking by the Methodist Hospital, just down the road from the VA, a plan began to form in his mind. It may have been that some long-forgotten teacher in his not-so-memorable childhood had made him read O. Henry’s “Cop and the Anthem,” or maybe he dreamed it up all by himself.

However it came to be, Stan’s idea went more or less like this: He had no money, and no prospects of getting any. His back hurt so he could hardly get around, much less do the manual labor which was the only work for which he was qualified. He had no family, and no friends whose circumstances were much better than his own.

Clearly, the only place he’d have food enough and a warm place to sleep would be in jail. He’d just have to do something that would get him arrested.

Stan began to put his mind to it, but everything he thought of would just mean a night or two in jail, and then he’d be back on the street with the same problem. As bad as his back felt, a night or two wasn’t going to do it.

Although the plan was still not fully formulated in his mind, Stan walked into the lobby of the Methodist Hospital and “borrowed” a piece of scratch paper from a Candy Striper.

As he trudged on down the street toward the bus stop, it came to him. He was going to have to commit a felony, so he could get a nice long stay in the can.

As he thought about it, though, he remembered hearing that they make you do things like chop cotton in the Texas pen, and his back sure didn’t need that. Guess he’d have to think up a Federal felony, so’s he could get into one of those federal country clubs he’d heard so much about.

Trouble was, he couldn’t think of a Federal felony, and he sure didn’t want to do anything that had any chance of ending him up on the business end of a cotton hoe.

About that time, he came to the bus stop on Fredericksburg Road. Since he still hadn’t figured out quite what to do, he decided he might as well catch the bus toward town, as far as his 35 cents would take him. At least, if he ended up having to walk to the shelter he’d be that much closer.

He caught the next bus, and started toward town. By that time, he’d realized that robbing a federally insured bank was bound to be a Federal crime, and had resolved to do it. There were a bunch of big banks downtown, and some of them were bound to be federally insured.

The big concern about that, though, was that most of the downtown banks he had seen had armed guards working in them, and he sure didn’t want to get himself or anybody else shot.

Just at that moment, the bus came to a stop at a red light, where Fredericksburg Road crossed the Expressway, and there, right before his eyes—as if sent by God himself—was the Citizens National Bank, Member FDIC, a small suburban bank (actually located in suburban Balcones Heights, and not San Antonio) that would almost certainly not have an armed guard.

Stan got off the bus, walked over to the bus stop bench, and sat down. From the small paper sack he was carrying, which contained all of his worldly goods, he extracted a pencil. He wrote what seemed to be the appropriate note, exchanged the pencil for an empty paper sack, and walked in the bank.

When he got inside, he sat down on a chair and looked around the bank.

He saw that there were three or four teller positions open. He left his sack of belongings on the chair and, choosing the line with only one person in it, waited as patiently as his back pain would allow while the teller served that person.

When it came his turn, he moved forward to the counter. Smiling, he handed the teller the empty paper sack with one hand and, with the other, this note:

DON’T BE SCARED. GIVE ME ALL THE MONEY, THEN CALL THE COPS. STAN

The terrified teller didn’t know what to do. Was Stan armed? Would he hurt anyone? Was he nuts? Who ever heard of a signed demand note from a bank robber?

Not knowing what else to do, he began stuffing money in the sack. When he had it about half full, Stan said, “That’s enough,” thanked him, took the sack, walked back to where his belongings were in the chair, and sat down.

The victimized teller still didn’t know what to do. Why was the man sitting there in the chair, and why did he just keep grinning like that? The neighboring teller, however, had realized what was apparently happening, sneaked into the back room and called the police.

It was more than five minutes, nearer to ten, before the Balcones Police arrived. By the time they got there, the word had spread to all the employees of the bank, and from them to the customers, that the shabby little man with the foolish-looking grin had just robbed the bank.

“What is he doing?” they all wondered. “Is he insane? Can this really be happening?”

Finally, Balcones Heights’ finest arrived. Running past Stan, they approached the teller who’d been robbed, but he was unable to speak and afraid to point at Stan, who was still sitting there with his foolish cherubic smile. After a bit, the teller who’d made the phone call came out from the back room and motioned to the officers to come over to her. They did, and after a whispered conference and glances over their shoulders at the still- grinning Stan, they made their move.

One cop grabbed Stan and threw him to the floor, while another grabbed both paper sacks. A third stood by, gun drawn, authoritatively ordering the now prone and agonizing Stan not to move.

Even in his pain, Stan remembered later, he wondered just exactly what the man thought he was going to do with 220 pounds of police officer square in the middle of his back.

Stan got his three hots and a cot in the Bexar County Jail for the next several weeks. Long enough, in fact, that by the time he was indicted by the Federal Grand Jury for bank robbery his back no longer hurt. He had accordingly also figured out several places he might rather be than the federal penitentiary, even a country club one.

It was a little surprising, frankly, that the United States Attorney went forward with the prosecution of Stan. The law, you see, requires more for a successful prosecution than merely showing that a prohibited act has been committed. It must also be shown that the act was committed with the requisite mental state, what lawyers call “mens rea” or “guilty mind.”

Bank robbery is not committed when there is no intent to appropriate the money to one’s own use, and it was crystal clear that Stan’s sole intent was to get himself arrested. The jury acquitted Stan, and the last time I saw him he was panhandling on the street of downtown San Antonio, waiting for a determination by the Social Security Administration on his claim for disability benefits. I don’t know how that turned out.

I was fairly well broken-in in state court when I tried Stan’s case, but his was my first Federal jury trial. In addition to Stan himself being among my more memorable clients, the fact that it was my first jury trial in the post office courthouse gives the case a special place in my heart.