Trial Judge Influences (But Does not Compel) a Defendant to Testify

The 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment. 

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.
Sumber http://thetrialwarrior.blogspot.com/

Prosecutor Post: It's Not Personal...Really.

From our Texas prosecutor:

I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys.  Relationships that, like it or not, become very intricate in the resolution of criminal cases.  This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney.  He started by pointing out how there's not much to gain by creating a hostile relationship with a prosecutor.  He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.

I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney.  We try and look at the case and defendant separately from the attorney.  He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he's going to handle a case.  Again, I stressed we try not to behave that way, but then again, I can't speak for every prosecutor.

Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person.  The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside.  So, they take things personally.  Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away.  And it should!  Criminal cases shouldn't be taken lightly by either side, but passion doesn't have to trump professionalism.

There's not really a how-to on not taking it personal.  Just something you have to practice I suppose. 
Sumber http://thetrialwarrior.blogspot.com/

Lost in Translation: A Defendant’s Rights to Counsel

Under the Fifth and Sixth Amendments, a criminal suspect is guaranteed the right to counsel.  But there’s a difference between what the two amendments provide.  The Fifth Amendment right to counsel was created by the Supreme Court decision in Miranda v. Arizona, where the Court held that a person has the right to have counsel present during custodial interrogation (interrogation counsel).  The Sixth Amendment guarantees a defendant the assistance of counsel for his defense at trial (trial counsel).

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation (interrogation counsel) and the Sixth Amendment right to counsel at all critical stages of criminal proceedings (trial counsel) had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.

Pecina v. State, a recent Texas Court of Criminal Appeals case, illustrates the confusion that existed between the two rights to counsel.  In Pecina, Arlington Police officers arrested the defendant for the murder of his wife and took him to the hospital rather than the jail because he had suffered significant stab wounds (allegedly self-inflicted).  Because Mr. Pecina could not be transported to see a magistrate within 48 hours as required by the Texas Code of Criminal Procedure, the police officers brought a magistrate to him.  A bilingual magistrate.  The magistrate advised Mr. Pecina (in Spanish) of his Article 15.17 rights including, inter alia, the right to have an attorney present throughout the criminal trial process (i.e. trial counsel – 6th Amendment).

“After reading appellant his rights, [the magistrate] asked if he wanted a court-appointed attorney.  And he stated that he did.” She then asked Mr. Pecina if he “still wanted to talk to [the detectives]?” He said that he did.  The magistrate (as she later testified) believed that, when Mr. Pecina asked for counsel, he was asking for trial counsel, not interrogation counsel.  The two detectives then entered the hospital room and issued Mr. Pecina his Miranda warnings (in Spanish).  Mr. Pecina waived his Miranda rights, did not request an attorney, and gave a statement.  He was later convicted for murder after his statements to the detectives were admitted against him at trial.

These facts raise important questions:

When Mr. Pecina told the magistrate that he wanted a court-appointed attorney, did he invoke his rights under both the 5th and 6th Amendments? Should the police have refrained from initiating further questioning until he had an attorney present?

Prior to the 2009 Supreme Court decision in Montejo v. Louisiana, 556 U.S. 778, the controlling case regarding the two intertwining rights to counsel was Michigan v. Jackson, 475 U.S. 625 (1986). “In Michigan v. Jackson, the Supreme Court had held that ‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.’"

Under Michigan v. Jackson, Mr. Pecina’s assertion of his right to counsel that he made to the magistrate in the hospital would have been enough to preclude the police from initiating further interrogation. Or, if the police did later initiate interrogation, any statement Mr. Pecina made should have been suppressed at trial.

But all of that changed under Montejo in 2009. In Montejo, the Supreme Court disentangled the right to interrogation counsel with the right to trial counsel.

Distilled to its essence, Montejo means that a defendant’s invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation. The magistration hearing is not an interrogation event.

Analyzing the Pecina case in the wake of Montejo, the CCA explained that “[i]n this case, there were two separate events: magistration followed by a custodial interrogation.” The CCA then held that “under the totality of the circumstances…an objective and reasonable police officer, conducting a custodial interrogation would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for the purposes of custodial questioning.”

The CCA went further to clarify the new rule, explaining that under the Supreme Court decisions in Montejo, Miranda, Edwards, and Minnick, a suspect’s Fifth Amendment rights (to interrogation counsel) are only triggered “AFTER THE POLICE INFORM HIM OF HIS RIGHT TO COUNSEL AT THE BEGINNING OF A CUSTODIAL INTERROGATION.” Emphasis added.  Ultimately, the CCA held that the magistration hearing (in which Mr. Pecina requested an attorney) did not trigger any Fifth Amendment right concerning custodial interrogation; that, the CCA explained, was done by the detectives at the beginning of their interrogation.

PRACTICE NOTE: A criminal defendant/suspect must now request an attorney, unequivocally, at every stage of the criminal justice process.  Interrogation.  Arraignment.  Magistration.  Every stage.  This is a significant change in Texas criminal procedure.

Judge Alcala joined the majority opinion but wrote a separate concurring opinion, in which she notes:

The magistrate’s interpretation (that Mr. Pecina only requested trial counsel and not interrogation counsel) misses the whole point of the warning, which is the right to have an attorney present ‘during any interview with peace officers.’ I conclude that the record indisputably shows that appellant’s request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings. …Appellant’s request for an attorney was, at most, a pre-invocation of his right to counsel.

Judge Alcala believes that the “Legislature could easily fix [the confusion between the two rights to counsel] by adding one sentence to the Article 15.17 admonishments: ‘If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.’”

Judge Price dissented, opining that “[a]ny reasonably objective viewer would conclude from the peculiar facts of this case that [the magistrate] was acting as a de facto agent of the interrogating detectives." He went further:

That the invocation [of Mr. Pecina’s rights] also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes. And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.”

Judge Price believes that Mr. Pecina's Fifth Amendment right to interrogation counsel was violated.  I agree.
Sumber http://thetrialwarrior.blogspot.com/

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.
Sumber http://thetrialwarrior.blogspot.com/

The Booking-Question Exception: Another Reason to Shut Up

Alford v. State - (Tex. Crim. App.) Feb. 8, 2012

Cecil Edward Alford was charged with evading arrest and detention.  While being transported to jail, Officers noticed that Mr. Alford was squirming around in the back seat.  Once at the jail, officers got Alford out of the car and searched the back seat.  As was procedure, they had searched the back seat of the squad car before their shift started to confirm that there were no items in the back seat.  After searching the back seat of the squad car following Mr. Alford’s transport to jail, officers located a clear plastic bag with pills inside and, directly under the bag, a computer flash drive (“thumb” drive).  As the jailers were booking Alford in, one of the officers took the thumb drive and held it up to Mr. Alford asking what it was.  The officer then asked, “Is it yours?” Alford claimed that it was.  At the time the jailer asked the question, Alford had not been advised of his Miranda rights.

The legal question arising from this situation is whether Alford’s admission that he owned the flash drive could be used against him at his trial.

The Court of Criminal Appeals first analyzed this case by addressing custodial interrogation and the “booking-question exception” to Miranda.  The Court recognized that questions “normally attendant to arrest and custody” or “routine booking questions” are exempt from Miranda. See South Dakota v. Neville, 459 U.S. 553 (1983); Pennsylvania v. Muniz, 496 U.S. 582 (1990).  The CCA noted that Mr. Alford’s case hinged on whether the question that the officer asked him that night was reasonably related to administrative concerns or if it was a question designed to elicit incriminatory admissions.

The defense presented case law supporting the contention that a question does not necessarily fall within the booking-question exception to Miranda simply because the question was asked during the booking process.  Specifically, the defense cited a footnote at the end of the Supreme Court’s opinion in Muniz that said, “recognizing a ‘booking exception’ to [Miranda] does not mean, of course, that any question asked during the booking process falls within that exception.  Without obtaining a waiver of the suspect’s [Miranda] rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id at 602, n. 14 (Brennan, J., plurality op.)

The CCA conceded that case law actually supported both the State and the appellant in this case.  Ultimately though, the Court held that the booking-question exception applies when the question reasonably relates to a legitimate administrative concern regardless of whether officer should have known that it might elicit an incriminatory admission.  The Court held that the Officer’s question in Alford’s case had the legitimate interest of identification and storage of an inmate’s property and that the questions regarding the thumb drive did fall within the booking exception to Miranda.

Essentially, the court decided that the relationship between the officer and Alford was not the determining factor.  Even though the Officer that asked Alford the questions was primarily responsible for the investigation, the Court still said that his question at the jail was just a booking question.  To me, this case does not provide any clarity to the booking-question exception to Miranda.  In any case, once a suspect is arrested, an officer could claim his questions are for booking purposes only, even when those questions are eliciting incriminatory admissions – and even if those questions are being asked while still in the field or at the scene.

This case just serves to reinforce what I’ve always advised folks – DO NOT SAY ANYTHING TO THE POLICE.  Of course, there are times when talking with a police officer cannot hurt, but if you are under arrest, DO NOT SAY ANYTHING, DO NOT EVEN NOD YOUR HEAD, until you have been provided an attorney.  If you must say something, say this:  "I request an attorney and will not answer any questions until I have been provided an attorney."
Sumber http://thetrialwarrior.blogspot.com/

Just Saying an Interrogation is "Non-Custodial" Doesn't Make it "Non-Custodial"

United States v. Cavazos is a case out of the 5th Circuit Court of Appeals (Federal).  It involves an interlocutory appeal by the government after the trial court (U.S. District Court for the Western District of Texas) suppressed incriminating statements made by the accused prior to receiving his Miranda warnings.

Here's what happened:  Federal agents executed a warrant on the defendant's home between 5:30 a.m. and 6:00 a.m. searching for evidence that he had sent sexually explicit material to a minor female.  Approximately fourteen agents and officers (that's right, 14 agents and officers!) entered the residence and handcuffed the defendant as he was getting out of bed.  After the home was secured, agents removed the handcuffs and took the defendant to a bedroom for an interview.  Agents told the defendant that it was a “non-custodial” interview, that he was free to get something to eat and drink during it, and that he was free to use the bathroom (they curiously left out the part about him being free to leave and free to not answer their questions and free to seek the advice of counsel, hmmm...).  The agents then began questioning the defendant without reading him his Miranda rights.  The defendant admitted that he had been “sexting” the victim and he described communications he had been having with other minor females. 

At trial, the judge granted the defense motion to suppress the defendant's statements made to the officers during this interrogation.  The trial judge ruled that even though the officers told the defendant that the interrogation was "non-custodial," the facts of the case proved otherwise.

On appeal, the 5th Circuit affirmed the trial court and held that the defendant was subjected to a custodial interrogation when the agents questioned him in his home.  As a result, the incriminating statements made by the defendant were properly suppressed. 

A suspect is in custody for Miranda purposes when placed under formal arrest or when a there is a restraint on his movement to the degree associated with a formal arrest, even when there is no arrest.  The key question is under the circumstances, would a reasonable person have felt he was at liberty to terminate the interrogation and leave.  Here, the court said no.  First, fourteen agents entered the defendant's home, in the early morning, without his consent.  Second, although the defendant was free to use the bathroom or get a snack, when he did, he was followed by the agents and closely monitored.  Third, although the defendant was allowed to use a telephone to call his brother, the agents had him position the phone so they could listen to the conversation.  This indicated the agents’ control over the defendant while implying that he had no privacy.  While the agents told the defendant the interview was “non-custodial,” such a statement made to a reasonable lay-person is not the same as telling him that he can terminate the interrogation and leave. Also, such a statement, made in a person’s home does not have the same effect as if the agents had offered to leave at any time upon request.

Overzealous agents and officers always make for good caselaw.
Sumber http://thetrialwarrior.blogspot.com/

Introducing Social Network Electronic Evidence at Trial

Laying the foundation for the admission of evidence can be tricky.  Often quite technical.  Even hypertechnical.  Depending on what you are trying to admit, you might need affidavits, chain of custody records, etc.  With the advancement of the internet, something trial lawyers of old did not even think about, there is more evidence out there.  Good evidence.  Sometimes really good evidence. Social media sites can provide a wealth of evidence for criminal trial lawyers on both sides of the aisle.

There are Facebook and MySpace friend lists and wall posts that can establish relationships and demonstrate motive or bias. Twitter feeds.  There is also a “check-in” feature on some sites that can show where someone was at a certain time.  What’s more, if you dig deep enough (usually with the help of a subpoena) a person’s private messages on Facebook or MySpace can be a treasure trove of information.  And let’s face it, many people on Facebook and MySpace have absolutely no filter.  Evidence galore.

One of the main problems with using social network media at trial is that ANYONE can create an account purporting to be anyone else.  Just check out the purported profiles for celebrities and you’ll see for yourself.  I seriously doubt Justin Timberlake has time to manage 20 different Facebook and MySpace profiles.

So, with this significant potential for fraud, how does a trial attorney go about authenticating and admitting this evidence at trial.  You might think that you need an affidavit from the social media company and the IP logs from the computer that created the account.  Indeed, you could get that sophisticated if you like.  But you don’t have too.   At least not in Texas.

The Texas Court of Criminal Appeals recently decided Tienda v. State, a case that dealt with this issue.  At trial, the State tried to introduce pieces of evidence obtained from the appellant's purported MySpace accounts.  However, the state did not have IP logs showing which computer created the accounts or the hard drive of appellant’s computer or any other sophisticated computer evidence.  The State took the simple route.  It presented evidence obtained from MySpace showing which email address created the accounts. Then it presented evidence obtained from the MySpace profiles themselves (posts, music, photos, messages), which linked appellant (circumstantially) to the MySpace profiles.  They used a sponsoring witness that had been on the MySpace profiles and had seen the postings and pictures.  The trial court allowed the evidence over defense objection.

The CCA held that “a combination of facts…[was] sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant.” The CCA noted that under TRE 901(a), the proponent of the evidence need only make a threshold showing that would be sufficient to support a finding that the matter in question is what its proponent claims. “The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder – the jury, in a jury trial.” Electronic evidence, the CCA explained, may be authenticated in a number of different ways.  However, "simply showing than an email [or other electronic message] purports to come from a certain person’s email address…or that a text message emanates from a cell phone number assigned to the purported author…without more, has typically been regarded as [insufficient] to support a finding of authenticity."

Ultimately, the CCA held in Tienda that there is no formula for admission of electronic evidence.  Each case should turn on its particular facts and the amount of circumstantial indicia of authenticity that is present.  The CCA cited a Maryland Court of Appeals opinion and seems to adopt the Maryland Court’s rationale regarding three instances that would satisfy the test for authenticity, but notes that the methods are not exclusive.

[T]he Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods. First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.” That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant.  Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.  Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.”

While that State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury.

If you are thinking about introducing social network evidence or other electronic evidence, this case is a good one to read. As always, the war is waged at the trial level, because on appeal, the standard is abuse of discretion, which means, of course, that the trial court’s ruling is given great deference.
Sumber http://thetrialwarrior.blogspot.com/

Stand Your Ground in the Defense of Others

I had the slip opinion in my hand.  I had finished reading the case and highlighting the parts that I wanted to pull for a blog entry.  And then I decided to click on a few links from my blogroll.  After reading John T. Floyd's blog entry, I walked over to the recycling bin and tossed the case I had just read.  I try not to blog about cases on which other bloggers have already written (and written well), save U.S. Supreme Court opinions about which everyone feels compelled to write.

I pride myself on being one of the first to publicly report opinions (published opinions, that is) from the Texas Court of Criminal Appeals.  Well, a case named Morales v. State, came out in November 2011 and it slipped through the cracks.  So today, when I saw that John T. Floyd's blog (Criminal Jurisdiction) had an entry at the top of the page titled: SELF-DEFENSE: NO DUTY TO RETREAT, I knew immediately that I had been scooped.  That's what I get for procrastinating I suppose.

To focus on the positive, at least I don't have to hammer out a blog post about the case (well, at least not a substantive post), because John T. Floyd's post is about as good as it gets.  I encourage any L&J for Y'all readers (yes, I'm delusional enough to believe we have "readers") to go check it out.  He and his paralegal have done an excellent job summarizing the case and the holding, that...

A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.

Thanks John.  I guess I'll move along to the next case, or perhaps I'll click on a few more links and see if it has already been covered by a colleague.
Sumber http://thetrialwarrior.blogspot.com/

The Importance of Reading Statutes in Context

As an attorney just now jumping into private practice, I see no better time to take my mask off and let all of the Liberty and Justice for Y’all readers know who I am. (And, yes, like Mr. Barnett, I am delusional enough to think we have readers too.)

My name is Luke Williams and for the past few years I have been one of those “unnamed prosecutors” contributing to L&J for Y’all. I look forward to continuing to contribute to this blog. IMO, Brandon does an good job of ferreting out important cases for us to write on and I’ve enjoyed working with him on this blog.

Now on to the case de jure….Tha Dang Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

If you’d like more information about me or my practice, you can find it here: http://www.law4dfw.com/.
Sumber http://thetrialwarrior.blogspot.com/

The Last Man Exonerated - Kerry Max Cook

I usually do not repost articles that others writers send to my email, but I decided to make an exception for this one.  Reposted below is a compelling article written by Michael Hall with Texas Monthly, regarding the current plight of Kerry Max Cook, a man who hopes to obtain a complete exoneration for a murder that he did not commit (as later demonstrated by DNA evidence).  You can either read the story below, or see the original article HERE.

>>>>>>>>>>>>

Kerry Max Cook walked off Texas’s death row in 1997, but earlier this week he filed two motions in the 241st District Court in Smith County that he hopes will finally clear his name. Cook (pictured above) and his Dallas lawyers, working with the New York-based Innocence Project, petitioned for post-conviction DNA testing on untested evidence he is certain will show once and for all that he is innocent of killing Linda Jo Edwards in Tyler in 1977. He also asked to have the DNA motion considered by a judge from outside Smith County, where he claims he was a victim of “the most well-documented and notorious instance of prosecutorial misconduct in the annals of Texas jurisprudence.”

Now would seem to be a good time to file these motions. Since 2000, four dozen Texans have been exonerated, most by DNA evidence. Recently we’ve seen several high-profile cases in which men sent to prison—including death row—were exonerated and freed, to great fanfare. Timothy Cole, convicted of rape in Lubbock in 1985, was exonerated posthumously in 2009 after a court of inquiry found him innocent. Anthony Graves, a former death row inmate, was freed in 2010 after a special prosecutor found his trial prosecutor had “handled this case in a way that would best be described as a criminal justice system’s nightmare.” Michael Morton, convicted of killing his wife in 1987, was freed in October after tests revealed his wife’s blood and another man’s DNA on a bandana near the crime scene.

Cook was released when these other men were still in prison. Any yet, unlike them, he is not legally an exoneree. That’s because, even though his death sentence was overturned twice by higher courts, and even though DNA taken from the murder victim didn’t match him, when prosecutors were preparing to put him on trial for a fourth time, Cook pleaded no contest instead of not guilty. Thirteen years later, his murder conviction is still on his record.

Why did Cook plead no contest to a murder he didn’t commit? Good question. Cook’s case is a strange one, one of the strangest in Texas history. He was arrested in June 1977 for the rape and murder of Linda Jo Edwards, who had been stabbed, beaten, and mutilated in her apartment. Her roommate told of seeing a man at the apartment whom she assumed was James Mayfield, a married man with whom Edwards had been having an affair. But the affair had ended three weeks before the murder. Police instead zeroed in on Kerry Max Cook, who lived in the same complex and whose fingerprints were found on a patio door of the apartment. Cook said he was innocent.

The prosecution made a strong case at Cook’s first trial in 1978. A police detective testified that his fingerprints could actually be dated as having been left there within hours of the murder. The roommate who originally thought the killer was Mayfield now said it was Cook. A jailhouse snitch said Cook confessed to him that he’d killed Edwards. And a gay hairdresser named Robert Hoehn said that on the night of the murder he and Cook had watched the movie The Sailor Who Fell From Grace With the Sea; Hoehn said he had performed sex acts on Cook, who also had masturbated during a scene involving the torture of a cat. The prosecution’s theory was that Cook, aroused by the torture scene, had rushed out to rape, kill, and mutilate Edwards, a total stranger. Cook, who says he knew Edwards and had visited her apartment by invitation (thus accounting for the prints), was found guilty, convicted, given the death penalty, and sent to death row.

Ten years later, stories in the Dallas Morning News began alleging serious improprieties at the original trial. For example, the snitch admitted that he had lied as part of a deal with prosecutors (his pending murder charge was reduced to involuntary manslaughter in exchange for his testimony), and the detective’s testimony about being able to tell the age of fingerprints was shown to be highly misleading, if not downright absurd. In 1991 Cook’s sentence was overturned on a technicality and sent back to the trial court.

By this point, the state’s case was in the hands of a tough prosecutor named Jack Skeen, who had been elected Smith County DA in 1983. Cook had found his own advocate in Jim McCloskey of Centurion Ministries, a New Jersey group that helps the wrongly convicted. Centurion did some research and found four dozen people who knew Mayfield, the man Edwards had been having an affair with; none had ever been interviewed by police. McCloskey became convinced of Cook’s innocence and wrote a report titled “Why Centurion Ministries Believes Jim Mayfield Killed Linda Jo Edwards.”

Cook’s second trial was moved to Williamson County in 1992, but it ended in a hung jury and a mistrial. By this point other evidence that suggested prosecutorial misconduct had been revealed—the state hadn’t turned over evidence that Mayfield’s teenaged daughter had repeatedly threatened to kill Edwards in the weeks before her death. The state also withheld evidence that Cook and Edwards did indeed know each other and that Hoehn had originally told the grand jury that he had not had sex with Cook (who, he had also said, didn’t pay any attention to the movie). Finally, the state hadn’t revealed a written statement from the detective who had testified about the age of the fingerprint in which he said he had told prosecutors this opinion was unsound and couldn’t be backed up by any science. Still, he stated, prosecutors pressed him to give it, and he did, to devastating effect.

At trial number three, in 1994, even without the testimony of the snitch or the detective regarding the age of the fingerprints, the state was allowed to use the testimony of Hoehn, who had recently died. Cook was again found guilty and again given the death penalty.

In 1996 Cook finally got his first vindication. The Texas Court of Criminal Appeals reversed the latest conviction, pointing to the massive official misconduct. “Prosecutorial and police misconduct has tainted this entire matter from the outset,” the majority opinion declared. Cook made bail in 1997, but the state prepared to try him again. Skeen, who was elected Prosecutor of the Year by the State Bar of Texas, remained convinced of Cook’s guilt.

In an attempt to head off a fourth trial, Skeen’s office offered Cook a deal: plead guilty, be sentenced to time served, and go home. Cook refused. He was innocent, he swore. In early 1999, Edward’s underwear was sent to a DPS lab for modern forensic testing. On February 5, the lab confirmed the presence of semen. Six days later a hopeful Cook gave a blood sample. The next day, before the results of the DNA test came back, the DA’s office made another offer: a no contest plea, in which he would maintain his innocence while acknowledging that witnesses against him “would testify sufficiently to prove beyond a reasonable doubt” that he’d killed Edwards. Again Cook refused. On February 16, the DA came back with a jawaban offer: a no-contest plea in which Cook would maintain his innocence while only acknowledging the evidence the state would offer to try and convict him. Cook took the deal. He didn’t want to run the risk of another trial, another guilty verdict, and another death sentence in law-and-order Smith County.

Two months later, the test results came back: the semen belonged to Mayfield—who had given a blood sample a month after the plea deal. Skeen’s office maintained that the results didn’t prove anything—after all, Mayfield had recently had a sexual relationship with Edwards, and who knew when that semen had been deposited there? Cook was still guilty. As Assistant DA David Dobbs said later, “The important thing for us was to insure that he got a conviction for murder that would follow him for the rest of his life.”

In 2003, Skeen became judge of the 241st District Court. One of Cook’s motions filed Tuesday specifically asks for his case to be tried by someone other than his former prosecutor. In this motion for recusal, Cook’s attorneys note new evidence that they say suggests Skeen failed to follow the law. In particular, in May 2011 Cook’s lawyers say they found a polygraph report on the jailhouse snitch that indicated deception during his 1977 questioning—a report that was never turned over to any of the defense lawyers, either in 1978 or 1994. Cook’s lawyers write, “the State was unquestionably obligated to provide this highly exculpatory document to the defense.”

The CCA, in its review, concluded that the improprieties in the case were confined to the original investigation, in the late 1970s. A footnote to its majority decision in 1996 reads: “We note the acts of misconduct … took place nearly 20 years ago and we do not imply any complicity in said acts on the part of the current District Attorney or current members of the Tyler Police Department.” But Judge Charlie Baird, in a separate opinion, disagreed, saying that he thought the misconduct went further: “the State’s misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State, over a fourteen year period—from the initial discovery proceedings in 1977, through the first trial in 1978 and continuing with the concealment of the misconduct until 1992.” By that point, Skeen had been DA for nine years.

One of the more intriguing questions is whether Skeen knew the results of the DNA test before making the plea offer in 1999. In Chasing Justice, a book Cook wrote about his experience, he says that McCloskey suspected so. “I’ll tell you what I think,” Cook remembers McCloskey saying. “I think they ran a preliminary test on the semen stain and have at least got a blood type; they know you aren’t the donor.” In the DNA motion, Cook can only speculate on what happened:

Based on statements made by the District Attorney, what likely occurred between February 12 and February 16, 1999 is that an initial analysis was performed on Mr. Cook’s blood sample for purposes of comparison to the semen stain on Ms. Edwards’ clothing, which had only been provided the day before the prosecution’s offer to Mr. Cook of 40 years in prison. And in hindsight it is apparent that this initial analysis excluded Mr. Cook as the individual that raped and murdered Ms. Edwards. Just after Mr. Cook entered his no-contest plea, a local newspaper reported that, ‘[t]esting continues on a recently discovered semen stain on the dead woman’s underwear, said Skeen. But initial indications were that the new evidence would not prove helpful to prosecutors, he [Skeen] said.’ The prosecution knew that once a jury was informed that the semen from Ms. Edwards’ panties did not belong to Mr. Cook, the State would not be able to convict Mr. Cook of her rape and murder. Again, Mayfield did not submit his blood until after the plea agreement was entered, so when the prosecution made the deal with Mr. Cook they may not have known with scientific certainty who did rape and kill Ms. Edwards, but they absolutely knew who did not—Kerry Max Cook.

The intent of the DNA motion seems to be to start the ball rolling to get Cook eventually declared actually innocent. This is a tall order in Texas, especially this long after the verdict. The motion states:

Mr. Cook is factually and actually innocent of the 1977 rape and murder of Ms. Edwards and requests further DNA testing to verify and corroborate the other powerful evidence of his innocence. While previous DNA testing has already provided exculpatory evidence and established overwhelming proof of Mr. Cook’s innocence, there is a substantial volume of additional un-tested evidence that will further corroborate Mr. Cook’s innocence.

The motion is referring to things taken from the bloody crime scene that were never tested for DNA, including Edwards’ bloody blue jeans, a hair found on her body, and other biological samples taken from her bra and a knife.

One of the great mysteries of the case is why Mayfield, whose semen was found inside Linda Jo Edwards’ lifeless body, was never tried for her murder. If his DNA profile were to be found in the untested blood or hair, could Mayfield (who lives in Houston and has refused requests for interviews for 35 years now) ultimately be prosecuted? Could Cook be exonerated?

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”
Sumber http://thetrialwarrior.blogspot.com/

Felon in Possession Even if Felony is Reversed

Under section 46.04 of the Texas Penal Code, it is unlawful for a felon to possess a firearm.  Of course, it’s more complicated than that.  There are nuances.  But for the purpose of this post, I’ll leave it at that.  You can read the full text of section 46.04 here if you desire.

So here’s our scenario: A person is convicted of a felony.  Check.  Then that same person is caught possessing a firearm in violation of section 46.04.  Check.  He is then convicted for being a felon in possession.  Check.  But here’s the curveball…what if this person later challenges his original felony on appeal and wins?  Now the predicate offense is gone.  Poof!  Can his subsequent conviction for possession of a firearm by a felon still stand when he is no longer a felon?

The Texas Court of Criminal Appeals addressed this scenario in Ex Parte Jimenez.  To paraphrase the CCA’s answer…it depends.  It depends on when the person’s predicate felony was reversed.  If the predicate felony is reversed PRIOR to the conviction for possession of a firearm by a felon (as it was in Cuellar v. State, 70 S.W.3d 815), then the felon in possession conviction should not stand.  It should be reversed.  But if the predicate felony is reversed AFTER the person is convicted for possessing a firearm as a felon (as is the case here), then the conviction should not be disturbed.

The CCA looked to the U.S. Supreme Court’s holding in Lewis v. United States, 445 U.S. 55 (1980) which explained that “to obtain a valid conviction, the prosecution must prove the status of the defendant at the time he possessed the weapon.”

Therefore, if the defendant had the status of a felon at the time he possessed the firearm, a conviction for unlawful possession of a firearm by a felon is not void if the predicate felony is subsequently set aside.

In Jimenez's case, because his felony conviction was reversed AFTER he was convicted of possession of a firearm, the CCA denied him relief.

Judge Meyers dissented, opining that the facts of the case fit the criteria for an actual innocence claim under the CCA’s opinion in Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
Sumber http://thetrialwarrior.blogspot.com/

Tips From High School Students on Persuasive Writing

For any of you appellate lawyers out there hammering out legal briefs, here are some helpful pointers from high school students across the nation. (Okay, they are not really pointers, but they are funny to read nonetheless.)

Every year, English teachers from across the country can submit their collections of actual analogies and metaphors found in high school essays. These excerpts are published each year for the amusement of educators nationwide.

Here are some of the winners from last year (I particularly like #7 and #16)....

1. Her face was a perfect oval, like a circle that had its two sides gently compressed by a Thigh Master.

2. His thoughts tumbled in his head, making and breaking alliances like underpants in a dryer without Cling Free.

3. He spoke with the wisdom that can only come from experience, like a guy who went blind because he looked at a solar eclipse without one of those boxes with a pinhole in it and now goes around the country speaking at high schools about the dangers of looking at a solar eclipse without one of those boxes with a pinhole in it.

4. She grew on him like she was a colony of E. Coli, and he was room-temperature Canadian beef.

5. She had a deep, throaty, genuine laugh, like that sound a dog makes just before it throws up.

6. Her vocabulary was as bad as, like, whatever.

7. He was as tall as a six-foot, three-inch tree.

8. The revelation that his marriage of 30 years had disintegrated because of his wife's infidelity came as a rude shock, like a surcharge at a formerly surcharge-free ATM machine.

9. The little boat gently drifted across the pond exactly the way a bowling ball wouldn't.

10. McBride fell 12 stories, hitting the pavement like a Hefty bag filled with vegetable soup.

11. From the attic came an unearthly howl. The whole scene had an eerie, surreal quality, like when you're on vacation in another city and Jeopardy comes on at 7:00 p.m. Instead of 7:30.

12. Her hair glistened in the rain like a nose hair after a sneeze.

13. The hailstones leaped from the pavement, just like maggots when you fry them in hot grease.

14. Long separated by cruel fate, the star-crossed lovers raced across the grassy field toward each other like two freight trains, one having left Cleveland at 6:36 p.m. traveling at 55 mph, the other from Topeka at 4:19 p.m. at a speed of 35 mph.

15. They lived in a typical suburban neighborhood with picket fences that resembled Halle Berry's teeth.

16. John and Mary had never met. They were like two hummingbirds who had also never met.

17. He fell for her like his heart was a mob informant, and she was the East River.

18. Even in his last years, Granddad had a mind like a steel trap, only one that had been left out so long, it had rusted shut.

19. Shots rang out, as shots are wont to do.

20. The plan was simple, like my brother-in-law Phil. But unlike Phil, this plan just might work.

21. The young fighter had a hungry look, the kind you get from not eating for a while.

22. He was as lame as a duck. Not the metaphorical lame duck, either, but a real duck that was actually lame, maybe from stepping on a land mine or something.

23. The ballerina rose gracefully en pointe and extended one slender leg behind her, like a dog at a fire hydrant.

24. It was an American tradition, like fathers chasing kids around with power tools.

25. He was deeply in love. When she spoke, he thought he heard bells, as if she were a garbage truck backing up.

Surely #19 can be worked into a legal brief at some point.  Talk about the power of persuasion…
Sumber http://thetrialwarrior.blogspot.com/

Fighting a Traffic Ticket: The Truth Revealed

With most people, misconceptions and misunderstandings guide their decisions when deciding whether or not they should fight a ticket. Below is some advice from a former prosecutor...

1) You're not the only one that thinks you can just "talk to a prosecutor" and get your ticket dismissed.
Two to three times a week, most courts hold conferences between the prosecutor and citizens who had received citations. During these conferences, most people go to the prosecutor immediately to ask for a dismissal on their citation. I would venture to say that in a metropolitan area, a municipal prosecutor gets asked for a dismissal between 25-50 times per week. Starting your conversation off with a prosecutor by asking for a dismissal is the least effective approach for negotiating a favorable result. The concept of a dismissal is WIDELY misunderstood and the bottom line is that dismissals are rare.

2) Instead of demanding your dismissal, start by pointing out legitimate issues with your ticket.
There are legitimate issues with citations. Those issues can result in dismissals. But for every one legitimate issue, there are one-hundred ridiculous excuses. A municipal prosecutor has heard them all and there is a really good chance that the prosecutor has heard your specific excuse many, many times. Most of the time, people come go to court with an assumption about the law and they hang on to it with everything they are worth. Do some research before coming to court to determine whether you have a "legitimate issue" or just "another excuse". Whether that means consulting with an attorney or jumping onto Google, come to court with a little research and you may actually put the prosecutor in a better mood.

3) Document your defense.
 If you have documentation (especially on vehicle equipment issues, inspections, registrations, licenses, and insurance), bring it to court and have it ORGANIZED and ready for the prosecutor to look at. If there is some legitimate discrepancy between the status of your vehicle or license (on the date of the citation) and the citation you received you might actually get that all-elusive dismissal, but you had better have documentation to support your defense.

4) "Fine, I'll take it to trial."
It's got a nice ring to it, but the reality of a trial is that most cases will come down to the officer's testimony versus the defendant's testimony. More than likely, the officer will testify that he's been an officer for multiple years, been through training and education specifically for observing and enforcing traffic violations. He'll also testify that he spends 90% of his 8-10 hour shift in and amongst traffic observing traffic and that he was focused solely on looking for your vehicle violating a traffic law. Meanwhile, you'll testify (if you choose to testify) that you're number one priority was not following the traffic laws (I dare you to say that it was), but that you were on the way to work, dropping kids off at school, going to the grocery store or had some other objective in mind. The bottom line with trial: The officer will testify that he observed you commit a traffic violation and you'll testify you didn't and the judge or jury will decide who they believe.

5) If you really want a chance...
..hire an attorney. He or she will analyze your citation based on current law and the rules of evidence and procedure and not just based on what you heard from your neighbor's friend's ex boyfriend. Ultimately, you may decide that hiring an attorney would cost more than it is worth, but it you really want a fighting chance, you should hire an attorney.
Sumber http://thetrialwarrior.blogspot.com/

Trial Court May Reopen a Suppression Hearing

In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, the Appellant, Gary Lyn Black, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of tamat arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.
Sumber http://thetrialwarrior.blogspot.com/

CCA Reverses Course on Polygraph Admissibility

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.
Sumber http://thetrialwarrior.blogspot.com/

A Prescription for Acquittal

The State of Texas charged and convicted Bille Jean Avery of attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented at trial, however, revealed that the defendant actually used a legitimate prescription form, but that she forged some data on her prescription information in an attempt to obtain stronger pain pills.

In her appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that she could not be convicted of using a “fraudulent prescription form” when the prescription form she used was legitimate.  The Court of Appeals agreed and acquitted her of the offense.

On discretionary review, the Texas Court of Criminal Appeals affirmed Court of Appeals’ affirmed judgment of acquittal. In a unanimous opinion, the CCA explained:

Just as tax information should be recorded on a tax form to create a competed tax return, so too prescription information should be recorded on a prescription form to create a completed prescription.  The information that is written on the form is not the form itself…[W]e hold that “prescription form” refers to a pre-printed form designed to have prescription information written on it.

This was a case of a simple charging error by the Disctrict Attorney's office, but it goes to show that attention to detail can win the day.
Sumber http://thetrialwarrior.blogspot.com/

Improvements in Expunctions and Non-Disclosures

Recently, a client called me to ask about getting his record “sealed”. It was an exciting feeling for me.  Getting asked to evaluate an Expunctions and Non-Disclosure: A Primer

Questions Regarding Expunctions

Expunctions: The Magic Eraser?

Sumber http://thetrialwarrior.blogspot.com/

Posted in: Criminal Record, Dallas-Fort Worth Criminal Defense, Expunctions, Legislature, Non-Disclosure  |  Read More »

An Instruction on Lesser-Included Instructions

Somehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary...

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).
Sumber http://thetrialwarrior.blogspot.com/

Fifth Circuit Federal Court Update

Below are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

U.S. v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.


U.S. v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
 Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

U.S. v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.
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Texas Court of Criminal Appeals Case Updates – Sufficiency of Evidence

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.
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