Friday, July 30, 2010

Trial Judge Must Make an Informed Decision

"It is highly unlikely a judge would sentence an unremorseful, fourth-time DWI offender to probation, regardless of any available program or sanction," says Justice Hilbig in his dissenting opinion in Gutierrez v. State.

However, a majority of the 4th District Court of Appeals (San Antonio) reversed and remanded the case for a new sentencing hearing because the trial judge failed to order a presentence investigation report.  
Article 42.12, section 9, of the Texas Code Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or 'if the judge finds there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.'
The trial judge having failed to order a report or explain on the record why a report was unnecessary, the Court found harmful error.  The Court explained that:
because there was no presentence investigation report, the trial judge was not provided with required 'proposed client supervision plan.'  Without a 'proposed client supervision plan' outlining the programs and sanctions available through the community supervision and corrections department to [the defendant], the trial judge did not have before her all the information required by statute for her consideration before imposing sentence.
While, in my opinion, it is doubtful that Gutierrez' new sentencing will be any less than the original sentence of 4 months in jail and a $1,500 fine, he will get his chance.  I think 4 months and $1,500 is pretty light for a 4th DWI.

Monday, July 26, 2010

Things Could Get Sparce

Going on vacation tomorrow morning, so, unless I received some guest posts, my posting of Texas cases will be quite sparce over the next week and a half.  I'll try to hit any big CCA opinions, if indeed any are released, but I doubt I'll be doing much work on the Courts of Appeals cases.  See y'all when I return.

Sunday, July 25, 2010

Puberty Matters Not

A novel argument from an appellant in the 1st District Court of Appeals (Houston) case of Eubanks v. State.  Donald Eubanks, who was convicted of two counts of indecency with a child, two counts of sexual performance by a child, two counts of possession of child pornography, and two counts of aggravated sexual assault of a child, was sentenced to life in prison and $80,000 in fines (and quite deservedly so, if you ask me).  He raised several issues on appeal, but the one that caught my attention was his argument that the evidence was legally insufficient to establish the counts of sexual performance by a child and possession of child pornography.
Specifically he argue[d] that the photos that he was alleged to have produced and possessed were of the "girls' undeveloped chests" and "did not depict breasts" for purposes of the sexual performance by a child and possession of child pornography statutes.
The Court overruled this issue, holding that puberty matters not when it comes to charges of sexual performance by a child and possession of child pornography.  The Court stated:
A person commits the offense of sexual performance by a child if knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.
[The law does not] require that the child‘s breasts be developed, and the definition of "sexual conduct" as applies to both offenses specifically contemplates that a "lewd exhibition of... any portion of the female breast below the top of the areola" is sufficient to constitute "sexual conduct" as required for the offenses of sexual performance by a child and possession of child pornography.
Good try Mr. Eubanks, but a child is a child, regardless of how developed (or undeveloped) she may be.

Wednesday, July 21, 2010

“Tulia Law” Helps Convicted Drug Dealer Win an Acquittal on Appeal

A few weeks ago, I wrote about the “Accomplice-Witness Rule,” which is the statutory adoption of the common law rule that a conviction cannot stand on the testimony of an accomplice without corroboration. Similarly, taking its name from the infamous Tulia drug cases, the “Tulia Law” (Tex. Code Crim. Proc. Art . 38.141) disfavors the testimony of a confidential informant working covertly on behalf of a law enforcement agency if the testimony is not corroborated by other evidence.

Earlier this month, the 11th District Court of Appeals (Eastland) applied the “Tulia Law” in Taylor v. State, resulting in an acquittal of the appellant’s conviction for possession with intent to deliver cocaine. In Taylor, the only witness connecting the appellant with the offense was a confidential informant, who had been arrested himself for possession of cocaine. The police equipped the informant with a wire and sent him in to a particular neighborhood to purchase cocaine. According to his trial testimony, the informant purchased $200 of cocaine from appellant. There was a problem, however, with the audio recording, as it could not independently establish that a drug transaction occurred or even that appellant was one of the voices on the recording. Therefore, because the police officers did not witness any part of the transaction, the only evidence connecting appellant to the drug transaction was the testimony of the confidential informant.

If we learned anything from the Tulia cases, it is that we can’t trust a confidential informant when he points the finger at a person and identifies him/her as a drug dealer. Apparently the 11th Court got the picture, because it reversed appellant’s conviction and entered a verdict of acquittal based on the “Tulia Law.”

Tuesday, July 20, 2010

Better Study Your Algebra!

Here are a couple more interesting issues that came up recently in Texas published cases:

Better Study Your Algebra
Davis v. State, (14th Ct - Houston) June 29, 2010 - Appellant argued that the trial court abused its discretion by allowing the State to introduce evidence during sentencing of the poor grades he received in school.  Overuling this issue, the Court held:
     Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to sentencing,‖ and the evidence is not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried.  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a).
     Although it is questionable that appellant‘s poor grades were relevant to determining an appropriate punishment for appellant, any asserted error in admitting evidence of appellant‘s grades was not harmful.
Even the State Needs Permission Sometimes
Witkovsky v. State, (2nd Ct - Fort Worth) June 24, 2010 - Where there is no showing that the terms or conditions of community supervision were modified, a person’s community supervision cannot be revoked for failure to meet the modified terms.  Because the defendant's community supervision was modified unilaterally, without court authorization, the trial court abused its discretion by revoking the defendant's community supervision on the basis of his failure to successfully complete a particular sex offender treatment program.

"The Best Part of Waking Up..."
Garcia v. State, (4th Ct - San Antonio) July 7, 2010 - Appellant argues that by placing his bare hand in the coffee can to search for marijuana, the police officer destroyed consumable property in violation of the Takings Clause of the Fifth Amendment to the Constitution.  However, the Court held, when property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not "takings" for which the owner is entitled to compensation.  The same rule applies even if the property is seized as evidence in a criminal investigation or as the suspected instrumentality of a crime, but is ultimately returned to the owner either because the government does not pursue forfeiture proceedings or because the owner prevails in a forfeiture action.

Saturday, July 17, 2010

Invest in Museum Risk Management - Don't Always Count on Someone Being There When Disaster Strikes

Back in June 2008 flooding damaged areas of Iowa. One place hit by the rising waters was the University of Iowa's (UI) art museum. The good news is that the Figge Museum in Davenport was able to house and protect some of UI's artwork after the flood. Just as when Hurricane Katrina hit Louisiana and other nearby states, several art museums came to help out institutions affected by the disaster. However, long-term help cannot always be counted on. In UI's situation, Lloyd's of London will not insure a new museum building for UI if they construct it in the same spot. And the Federal Emergency Management Agency(FEMA) has just denied UI's request for funds to help build a new museum. The lesson is that an investment in risk planning can help a cultural institution mitigate or prevent problems later.

Friday, July 16, 2010

Operation Andromeda - Carabinieri Cultural Heritage Protection Command Press Release

Unedited original available at

On July 16, 2010, the Carabinieri Cultural Heritage Protection Command presented to the press ... three hundred thirty seven exceptional archaeological finds, from Lazio, Puglia, Sardinia and Magna Graecia, dating between eighth century BC and fourth century AD, and returned from Geneva, Switzerland on June 25, 2010.

Among the many outstanding heritage items are ... loutrophoros, marble statues depicting the goddess Venus, Apulian and Attic volute craters, craters mask Canosa, kylix Chalkidiki, bronzes, frescoes from Pompeii, a basket and two nuraghic warriors, whose value is determined on the illicit market based on their size in centimeters (about ten thousand euros per centimeter).

The total asset value of the works exceeds fifteen million euros. The exhibits were seized earlier this year by the Swiss authorities and by the Carabinieri, as a result of an investigation commonly known as "Andromeda" in the free port of Geneva, where they were stored by an art dealer and a Japanese Swiss businessman ....


Thursday, July 15, 2010

Just Take My Word For It

The U.S. Supreme Court recently held in Meledez-Diaz v. Massachusetts that under the Confrontation Clause of the Sixth Amendment, crime lab analysts that conduct testing and prepare certificates (affidavits) regarding the contraband nature of a substance are “witnesses” and the defendant must be afforded an opportunity to confront them in court. This ended the State’s longtime practice of simply offering an affidavit from the crime lab to prove that the substance seized was, in fact, cocaine (or any form of contraband).

Similarly, the 2nd District Court of Appeals (Fort Worth) recently had the occasion to consider whether the admission of intoxilyzer maintenance records and breath test results (in a post-Melendez-Diaz world) violated the defendant’s right to confront the witnesses against him as provided in the Sixth Amendment. In Settlemire v. State, the technical supervisor of the intoxilyzer machine testified at trial to authenticate and breath test, but she was not the actual supervisor at the time of the test and she was not the technician who performed the test on the defendant.

Not surprisingly, the 2nd Court held that the supervisor’s testimony satisfied the Supreme Court’s mandate in Melendez-Diaz. In a brief opinion that was short on analysis, Justice Bleil quoted directly from Melendez-Diaz, wherein the Court explained:

[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. . . . Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
The opinion went on to state that the technical supervisor of the machine, who testified about the intoxilyzer’s status (although she did not supervise at the time of the defendant’s test) “is precisely the type of analyst that the Court anticipated might be challenged based on its holding in Melendez-Diaz.”

Tuesday, July 13, 2010

Some Various Holdings

While I'm focused elsewhere, here's a quick look at some published holdings from around the state:

Confession Valid Despite Illegal Arrest
Monge v. State, (Tex. Crim. App.) June 30, 2010 - Providing suspect with co-defendant's confession implicating him in the crime attenuated the taint of the illegal arrest such that the suspect's later confession was not subject to exclusion.

"I'm Incompetent, I Just Can't Prove It!"
Galvan v. State, (11th Ct.--Eastland), June 17, 2010 - The defendant, who is presumed competent to stand trial, must prove by a preponderance of the evidence that he is incompetent, and a jury finding that the defendant is compentent will not ordinarily by overturned.

Skeletons in the Closet
State v. Krizan-Wilson, (14th Ct.--Houston), June 22, 2010 - A 23-year prosecutorial delay in seeking an indictment for murder did not violate the defendant's due process rights because the delay was not an intentional device used to gain a tactical advantage over the accused or for other bad faith purposes.

Monday, July 12, 2010

You Can't Ask That Question

The 2nd District Court of Appeals (Fort Worth) has affirmed that, indeed, there are some questions that cannot be asked a probationer.  In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:
  1. "Since you have been on probation, have you violated any of its conditions?";
  2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
  3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
  4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"
The applicant claimed that these questions violated his rights under the Texas and United States Constitutions against self-incrimination. (These types of questions tend to be SOP for probationers - especially sex offenders - in Texas.)

The 2nd Court agreed with the applicant, holding:
the trial court’s broad authority to create community supervision terms does not extend to imposing terms that violate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

The Fifth Amendment privilege [against self-incrimination] not only extends to answers that would in themselves support a conviction, “but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.”
To bolster its conclusion that questions 2-4 were unconstitutional, Justice Livingston's opinion cited the Supreme Court case of Minnesota v. Murphy, 465 U.S. 420 (1984), wherein the High Court reasoned:
A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. . . .

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him” in a subsequent criminal proceeding.
Applying the Supreme Court's holding in Murphy to the facts of Dangelo's case, the Court stated:
In summary, we hold that appellant may not be compelled, over the invocation of his Fifth Amendment right, to participate in any portion of the objected-to community supervision conditions, including the general requirement of sex offender counseling and the specific requirement of answering questions two through four of the planned polygraph examination, that would provide a link to his criminal prosecution for any offense unrelated to the injury to a child offense that he pled guilty to.
Pehaps this opinion will spark a change in the probation tactics employed in the various Texas community supervision programs.  At least in the jurisdiction of the 2nd Court, it should, so long as defense attorneys remain aware of what's happening (or probationers are savvy enough to tell someone).

Thursday, July 8, 2010

No Prison Means No Deterrence

Crimes against culture rarely appear on the radar of law enforcement authorities. And when such crimes are investigated--oftentimes after years of time and effort--many prosecutors tend to let such cases fizzle. That is what happened again today when a plea bargain was accepted in a Utah courtroom. A federal district court judge sentenced Brent Bullock to five years of probation supervision and sentenced Tammy Shumway, widow of the infamous antiquities looter Earl Shumway, to three years of court ordered supervision after a half year of home confinement.

The over two year inevstigation into antiquities looting and trafficking in the Four Corners area of the United States is just latest example of intense investigative efforts being rewarded with light sentences. Five defendants have now been convicted and sentenced to no time in prison. To be fair, one of today's defendants received a time-served sentence. But serving three weeks pre-trial time in jail is different from being sentenced to jail.

Prosecutors across the country took years to recognize that domestic violence was a legitimate crime. When it was acknowledged as a crime and jail sentences were pursued by the authorities, there came a marked increase in the detection and deterrence of the criminal activity. Crimes against culture require this same kind of recongnition.

That is why crimes against culture must earn meaningful court sentences that include incarceration. Weighty sentence tell other law enforcement and prosecution agencies that this crime is serious. Moreover, meaningful sentences tell other would-be grave robbers and antiquities traffickers that the price of doing illegal business by erasing history includes losing one's liberty. If the cost of site looting is of no consequence, then there is little incentive to deter a looter or trafficker.

Organizations like the Archaeological Institute of America and others must continue to educate authorities about the damage done when archaeological material is ripped from its context. That is to say, the irreparable harm caused by removing evidence of our past from the ground without proper documentation.

Accomplice-Witness Rule

Criminal law disfavors the testimony of an accomplice.  The policy behind this is clear - factfinders should be leary of trusting those who have a substantial stake in the litigation.  The 2nd District Court of Appeals (Fort Worth) recently provided a good synopsis of the Accomplice Witness Rule, which I felt was worth sharing.  The following execerpt is taken from Clark v. State (June 17, 2010).
The accomplice-witness rule is a statutorily imposed sufficiency review andis not derived from federal or state constitutional principles that define the legal andfactual sufficiency standards.  An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense.  Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of anaccomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidencethat tends to connect the accused with the commission of the crime.”  The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself.  Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Rather, the evidence must simply link the accused insome way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to theoffense.”  Additionally, “[p]roof that the accused was at or near the scene of the crime at orabout the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”
I omitted the citations, so you should click on the link above and go to page 15 of the opinion if you wants the various cites for the law above.

Wednesday, July 7, 2010

Hood v. State: "Too Close for Comfort"

There was a good article in this month's ABA Journal about Hood v. State.  The author concludes, and most of us would likely agree, that the Supreme Court missed an opportunity in this one to weigh-in on an important issue in legal ethics.

Tuesday, July 6, 2010

"Come Over Here and Talk to Me"

Crain v. State - (Tex. Crim. App.) June 30, 2010.

Police officer drives up next to a "suspicious-looking" pedestrian and says "Come over here and talk to me."  At trial, of course, the officer testifies that:
had the [suspect] refused to talk to him, he would have let the [suspect] go, as he had not observed the [suspect] do anything that could be construed as criminal activity.
When the suspect "voluntarily" spoke with the officers, they smelled an odor of recently-smoked marijuana on the him.  Believing the suspect to be in possession of marijuana, the officer placed the suspect's hands behind his back and patted him down.  Note:  The suspect was not under arrest yet.  During the pat-down search, the officers discovered a firearm tucked into the suspect's belt, but no drugs or other contraband.

At trial, the defendant moved to suppress the firearm, arguing that the interaction with the police officers was an unlawful investigative detention for which the officer did not have reasonable suspicion.  The trial court found the interaction to be a consensual encounter that did not require any level of suspicion and denied the suppression motion.  Appellant was convicted of unlawful possession of a firearm.

The 7th District Court of Appeals (Amarillo), affirmed, holding that the officer's conduct would not have communicated to a reasonable person that the appellant was not free to decline the officer's request and terminate the encounter.  Chief Justice Quinn dissented, concluding that, under the circumstances, the stop was a detention rather than a mere encounter.

In a 6-3 opinion, the CCA reversed the 7th Court.  Citing the dissent from the lower court, the CCA Judge Price emphasized:
As stated in Justice Quinn’s dissent, “[m]issing from the phrase ‘come over here and talk to me’ are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]”
Judge Cochran submitted a concurring opinion, in which she observed:
Officer Griffin testified that the exact words he used in calling to appellant were, “Come over here and talk to me.” That is a command. It is an imperative sentence.
Judges Keller and Keasler each filed dissenting opinions.  Both would have classified the interaction as a consensual encounter rather than an investigative detention.

A few months ago I posted about consensual police encounters HERE.  This case reinforces my prior opinion that "there is no such thing as a consensual police encounter."

Monday, July 5, 2010

Rules of the Road: CCA Opines on the Turn Signal Requirement

A recent Texas Court of Criminal Appeals opinion assures us that the CCA considers no issue too-small in the Texas criminal law landscape.  I did somewhat of a double-take when I read the issue presented in Mahaffey v. State:  
Is merging without using a signal a traffic violation under the Texas Transportation Code?
Why does that matter, you ask?  Because Appellant was arrested for DWI after an officer pulled him over for failing to signal when he merged into the left lane as his traffic lane was ending.  If a "merge" does not, in fact, require a signal, then there was no legal basis for the stop and the evidence of DWI should have been suppressed at the trial court.

The lower court (12th Court - Tyler) held that a "merge" is a "turn" and as such, requires a signal under the Texas Transportation Code section 545.103.  The CCA disagreed, stating:
the Tyler court’s holding in this case leads to an absurd result: a requirement that a driver must signal any movement that is not a perfectly straight trajectory. 
Nowhere does the [Texas Driver's Handbook] say that a driver must signal when a lane merges into another lane.
Accordingly, the CCA remanded the case back to the 12th Court to determing whether a "merge" (not a turn) requires a signal.

Thursday, July 1, 2010

Cutting Out the Middle Man - Manufacture and Possession Combined

Pursuant to a State's petition for discretionary review of the holding of the 7th District Court of Appeals (Amarillo) in Weinn v. State, the Texas Court of Criminal Appeals was presented the following issues:
  1. Can a defendant be convicted and punished for both Manufacture and the subsequent Possession with Intent to Deliver of the same quantity of controlled substances? and
  2. Are the offenses of Manufacturing a Controlled Substance and Possession with Intent to Deliver a Controlled Substance the same for double jeopardy purposes, even though the separate offenses are meant to punish separate dangers?
In a shocking 6-3 decision, the CCA held:
the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense.  Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy.
Presiding Judge Keller and Judge Keasler filed dissenting opinions and were joined by Judge Hervey.  Presiding Judge Keller wrote:
the big problem with the [majority's holding] is that it means that a person who manufactures a
controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.
Perhaps Judge Keller failed to read the entire majority opinion, which clearly explained on the final page that
our holding [does] not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment.
This appears to be a well-reasoned holding by the CCA.  If you really think about it, a person that manufactures drugs is obviously going to, at the same time, possess those drugs, and most likely will also have the intent to sell the drugs.  So long as the State is free to charge to subsequent delivery as a separate and distinct offense, I don't really see that the State loses anything (other than a stacked charge sheet) from this holding.  It should actually make the entire process simpler, as the State will be able to charge one or the other (manufacture or possession with intent to deliver), but not both.

A Shameless Plug to Help Our Deployed U.S. Marines

The Texas Court of Criminal Appeals released several interesting opinions yesterday. I've read most of them and while I'm working on some blog posts, I got sidetracked.  Last winter, I wrote a children's book about the Marine Corps and now it is up for a Pepsi Refresh grant.  We are hoping to print 5,000 copies of the book and donate them to the families of deployed Marines in Iraq and Afghanistan.

I thought, perhaps, I could enlist the assistance of my fellow criminal law blawggers to help us win the vote.  You can CLICK HERE to vote and you can vote once a day for the month of July.  This is 100% not-for-profit.  All of the money received will go straight to production, shipping, and distribution. 

For more info on the book and the Pepsi project visit the book's blog site at

Thanks Y'all