Wednesday, September 29, 2010

Cert Grant in Confrontation Case

The Supremes granted cert yesterday in Bullcoming v. New Mexico.  The certified issue is:
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform the laboratory analysis described in the statements.
HERE's a link to the New Mexico Supreme Court opinion.

This case sparks my interest on the military side where drug lab experts often testify about the lab work of other chemists, but any time the Court weighs in on the Confrontation Clause, it has the potential for broad impact.  This is one to watch.

Monday, September 27, 2010

Something Doesn't Smell Right: CCA Reverses Capital Murder Conviction Due to Unreliable Dog-Scent Lineup Evidence

In August 2004, Murray Wayne Burr was found murdered in his home.  One of the those suspected of committing the murder was Richard Lynn Winfrey.  Winfrey remained a suspect even when the police investigation concluded that blood, hair, and DNA samples obtained at the crime scene excluded him as a match.  Without any evidence linking Winfrey to the murder scene, the Texas Rangers called upon a dog handler with the Fort Bend County Sheriff's Office.  The dog handler then conducted a "scent lineup" using three bloodhounds.
This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including [Winfrey].  The dogs were "pre-scented" on the scent samples obtained from the victim's clothing.  The dogs then walked a line of paint cans containing the sent samples of the six white males.  All three dogs alerted on the can containing [Winfrey's] scent sample. 
When this scent identification was later admitted at Winfrey's capital murder trial, he was convicted and sentenced to 75 years in prison.

After the 11th Court of Appeals affirmed the conviction and sentence, the Texas Court of Criminal Appeals granted to review to address whether it was proper for the Court of Appeals to rely upon a dog scent lineup in determining that the evidence was legally and factually sufficient.

"Identifying someone's scent at a crime scene is not an indication of complicity," the CCA explained.  The Court also noted, as originally stated by Supreme Court Justice Souter, that "[t]he infallible dog, however, is a creation of legal fiction."  The CCA then went on to identify courts around the country that have held that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.
Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.  Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.  Like the Supreme Court of Washington, we believe that [t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.
Finding it "undeniable" that the jury and the Court of Appeals found the dog scent lineup evidence compelling, and further finding that there was no corroborating evidence placing Winfrey at the scene of the crime, the CCA reversed the lower court of entered a judgment of acquittal.

Takeaway:  "[W]hile [dog scent lineup] evidence may raise a strong suspicion of [a person's] guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.

Thursday, September 23, 2010

Prison Mailbox Rule

I can hear the conversation now:
Inmate talking to prison guard: Okay, here is my motion for a new trial.  It is due to the court in two days.  I am representing myself and I think I have a good argument that will help me get out of here.  Please make sure that this envelope gets put in the outgoing mail today.  Thanks Bob.

Prison Guard to Inmate(Sarcastically) Sure James, I'll bet you have a great argument.  Are gonna say that the cocaine fairy came down from her white powdery cloud and hid her excess product under your pillow?  I'll get this envelope over to the outgoing mail right away.  I'll consider it my most important task of the day.
Of course, the motion does not make it to the court on time and the prisoner's motion is denied as untimely filed.  It wasn't his fault.  What more could he have done?  This scenario begs the question:

Does the "mailbox rule" apply to pro se prisoners such that a document is deemed timely filed when placed in the hands of prison authorities? The Texas Court of Criminal Appeals says... 

In order to appeal a criminal conviction in Texas a person must file a notice of appeal with the court within 30 days from the day on which the sentenced is imposed or within 90 days from the day on which the sentence is imposed, if he/she files a timely (within 30 days) motion for new trial.  See Tex. R. App. P. 26.2(a).  To file a motion for new trial or notice of appeal by mail, the Texas mailbox rule requires that the motion/notice arrive within 10 days after the filing deadline and have been deposited in the mail the last day before the filing.  How does this rule apply to prisoners that represent themselves on appeal?

In Campbell v. State, the Texas Court of Criminal Appeals considered this as an issue of first impression.  In Campbell, the appellant argued:
that pro se prisoners occupy a distinct niche in the appellate universe when it comes to the crucial act of timely filing a document.  He notes that such a litigant cannot select by which method he chooses to accomplish filing.  He argues that the pro se litigant is condemned to place his trust in prison authorities to deliver pleadings to the proper filing agency and secure the necessary stamp of receipt.
Following the U.S. Supreme Court and Texas Supreme Court cases that have recognized a prison mailbox rule, the CCA held that
Like our sister courts, we decline to penalize a pro se inmate who timely delivers a document to the prison mailbox.
Borrowing its reasoning from the Supreme Court opinion in Houston v. Lack, 487 U.S. 266 (1988), the court recognized:
Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped 'filed' or to establish the date on which the court recieved the notice...Unskilled in law, unaided by counsel, and unable to leave the prison, [the pro se prisoner's] control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access - the prison authorities.  We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.

Tuesday, September 21, 2010

This Ain't My First Rodeo!

Whether it be Justin, Tony Lama, or Lucchese, many Texas lawyers prefer the comfort and style of boots as the footwear of choice in the courtroom.  So you can just imagine the hate and discontent that was caused by a local court rule banning lawyers from wearing cowboy boots in the courtroom.  See what happened HERE, as reported by the Austin American Statesman.

"No Hablo Ingles"

Contreras v. State,

A Mexican citizen was convicted in Denton County for intoxication assault and failure to stop and render aid.  On appeal, he lodged a Miranda-esque complaint, contending that the trial court erred by not suppressing statements he made after being arrested but before being informed of his rights as a Mexican citizen to contact the Mexican consulate.  After contacting officials in Arizona for advice on immigrataion policy, the 11th District Court of Appeals (Eastland) rejected the Appellant's argument and affirmed the conviction.  (Of course, I am only kidding about the Arizona thing, but the court really did affirm the conviction.)
The Vienna Convention on Consular Relations grants foreign nationals who have been arrested, imprisoned, or taken into custody the right to contact their consulate and requires the arresting government authorities to inform the individual of this right “without delay.”
Rocha v. State, 16 S.W.3d 1, 13 (Tex. Crim. App. 2000).  Notwithstanding the fact that the U.S. Supreme Court has held that the Vienna Convention does not control Texas or national law (Medellin v. Texas, 552 U.S. 491 (2008)), the Appellant asserts that he was denied procedural due process and as a result, any statements he made prior to being afforded his right to contact his consulate should be suppressed.

The 11th Court, however, refused to recognize any Due Process right in this instance, stating:
...because the Vienna Convention was drafted to govern relations between sovereign nations and foreign consular officials, Sierra v. State, 218 S.W.3d 85, 86-87 (Tex. Crim. App. 2007), we do not believe that its language creates a substantive right sufficient to implicate the constitutionally required procedures police officers must follow before interrogating a foreign national.  Moreover, courts have not read the treaty to require notification before instituting any police interrogation, but only within three working days of the arrest. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 362 (2006) (Ginsburg, J., concurring in judgment) (citing Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 52 ¶ 97 (Judgment of Mar. 31)).  Thus, even if we are in error and the Vienna Convention does create a benefit enforceable under the Due Process Clause, we do not believe that this required the police to inform Contreras of the right to contact his consulate before beginning a custodial interrogation.
Just in case the court misinterpreted the law regarding foreign relations, the Court further explained that:
Even if we are in error, Contreras is not entitled to the suppression of any evidence. The Supreme Court has held that suppression under the federal exclusionary rule is not an appropriate remedy for a violation of the Vienna Convention.  Sanchez-Llamas, 548 U.S. at 350. In Rocha, the Texas Court of Criminal Appeals held that the exclusionary rule under TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, including the Vienna Convention.  Rocha, 16 S.W.3d at 18-19. The trial court, therefore, did not err in admitting Contreras’s statements.
So the takeway from this case is that  (in Texas) foreign nationals are not afforded any enhanced procedural due process right to contact their consulate prior to being questioned by police officers.  Of course, Miranda would still apply (perhaps, even in Arizona), but there is no further right created by the Vienna Convention and evidence will not be suppressed for failure to follow its mandates.

Wednesday, September 15, 2010

Attention TX Drivers: Your Front License Plate Must Be Displayed...

" the foremost area of your car, most commonly the front bumper."

The Texas Court of Criminal Appeals seized the opportunity in Spence v. State to settle a split between the Texas Courts of Appeals regarding the proper placement of the front license plate.  The Amarillo Court of Appeals (7th), in Spence, had previously determined that the license plate was required to be displayed on the front bumper (the foremost area of the vehicle).  However, the Austin Court of Appeals (3rd), in State v. Losoya, 128 S.W. 3d 413 (Tex. App.--Austin 2004, pet. ref'd), held that Texas Transportation Code did not require the license plate on the font bumper.

Well, now it is settled.  The high court has spoken.  For those Nascar fans out there, go take down your Dale Earnhardt or you confederate flag decorative plate before you get a ticket! 

Attention Texas Drivers:  Your front license plate MUST be displayed on the foremost part of your vehicle, (i.e. Your front bumper).

Judge Meyers dissented, pointing out that the CCA is applying the Code inconsistently by requiring the front license plate to be displayed on the front bumper, but allowing the rear license plate to be displayed on the truck or back hatch of the vehicle and not on the rear bumper.  She "would construe the front and rear to mean any surface facing that direction."

Tuesday, September 14, 2010

80 Percent of Child Victims Recant Sexual Assault If Unsupported By Mother

Chavez v. State

In this case, a child (12 year-old girl) and her mother initially reported (and testified at a preliminary hearing or in a recorded interview) that Appellant sexually assaulted the child on numerous occasions.  Appellant also admitted to the assault during an interview with an investigator, which was admitted at trial.  During the trial, however, the mother recanted her previous testimony, stating that she was simply trying to get back at her husband for cheating on her.  The child victim followed her mother's lead and also recanted, stating that she and her mother made it all up.  The State then brought an expert of child victims (the Program Director for the Children's Advocacy Center in Midland) who testified over defense objection that:
if a child who has made an outcry of sexual abuse has an unsupportive moter, there is about an eighty percent chance that the child will recant that outcry.
Using the prior recorded statements of the Appellant, the mother, and the child victim, the jury convicted Appellant and sentenced him to 14 years confinement and a $7,000 fine.  The 11th Court affirmed the case on appeal, holding that:
[The expert] did not offer a direct opinion that L.C. was truthful in her initial outcry of sexual abuse or that L.C. belonged to a class of persons that was truthful or worthy of belief.  Nor did [the expert] offer testimony that L.C. was not truthful in her trial testimony. Instead, [the expert] testified about the behavioral characteristics of children whose mothers do not support their outcries of sexual abuse. Maria did not support L.C.’s outcry of sexual abuse. [The expert] said that, in such cases, there is about an eighty percent chance that a child complainant will recant. [The expert]’s testimony was admissible to assist the jury in assessing L.C.’s testimony. The trial court did not abuse its discretion in denying appellant’s motion for mistrial.

Friday, September 10, 2010

My Witness or Yours?

During trial you should generally expect your opponent to call witnesses who will provide testimony damaging to your case.  That's their job.  But what you do not expect is that one of the witnesses you decide to call will be the most damaging of all.  That was the experience of Jose Armando Deleon's trial defense counsel during the sentencing portion of his trial for child sexual assault.

In Deleon's case, the defense counsel called a local probation officer as a defense witness during sentencing.  It appears from the appellate opinion that the defense counsel, pursuing a probation sentence, called this witness to testify primarily that
when sex offenders are placed on probation, they receive treatment to learn to control their behavior, including 'on how to push away any type of temptations or desires' and 'to remove themselves from high-risk situations.'
Okay.  That seems like reasonable testimony that one might want to elicit in hopes of gaining a probation sentence.  However, the wily prosecutor turned the defense tactic against them.  On cross-examination of the probation officer the prosecutor asked:

Q. Now rehabilitation of sex offenders: Are they ever rehabilitated to the point where the risk is gone?

A. No.  Absolutely not.  The risk will always be there. It may be minimized or lessened, but the risk will always remain because we don't know—I don't know what anybody here is thinking.  We can never assume that we know what a sex offender is thinking.  The risk is this: they were sex offenders before they committed the offense.  So we don't know what he is thinking, what they're planning.  We can give them treatment, we can do all the things that are required by law; but we can't see up here,so we can never truly predict what is going to happen from day one to day two.  You have got to assume all the risk because you have heard story after story, 'I never thought he would do this; I never thought my grandfather would do this; I never thought my dad would do this.'  So you never, ever push out the risk.  You always assume the risk is great.  As long as you assume the risk is great, then hopefully that is going to create enough protection to prevent other children from being impacted one way or the other. You just don't know.  I can have guys that do everything perfectly, but up here they're still having sexual fantasies of molesting two-year-old girls or two-year-old boys.  Just because you succeed well in probation does not remove the risk.
Not much chance the jury is going to award probation after hearing that!  And that's exactly what happened; the jury awarded Deleon 14 years confinement.  After such a blunder, naturally, Deleon argued on appeal that his counsel was ineffective for calling the probation officer and for failling to object during the prosecutor's cross-examination.  The 14th District Court of Appeals (Houston) agreed, holding
appellant's trial counsel was deficient in failing to object to the highly inflammatory testimony and for calling [the probation officer] to the stand in the first place. See Mares v. State, 52 S.W.3d 886, 892-93 (Tex. App.—San Antonio 2001, pet. ref'd) (holding counsel was deficient where counsel called probation officer as witness and then failed to object when she opined that a person in the defendant's situation would not make a good candidate for probation).  Counsel should have known how Russ was going to testify on these matters. There could have been no strategic reason for producing and permitting such damning testimony.
Case remanded for a new punishment proceeding.  Perhaps the defense counsel should have spent a little more time in the ole woodshed with his witness prior to calling him to the stand.

Justice Christopher dissented, and would conclude that there were legitimate and professionally sound reasons for counsel's conduct in calling Russ as a witness.  As the dissent points out,
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
I'm with the dissent on this one.  You never know what it going to happen at trial and you have to expect the unexpected.  Of course, it appears the defense counsel could have prepared better for this witness, but he had a certain trial tactic and he employed it.  It just so happened in this case that the State was better prepared.  That's trial!  It's never perfect and the appellate courts should be extremely hesitant to second guess the tactical decisions by the participants.

Wednesday, September 8, 2010

A Simple Truth: Sexual Assault Conviction Reversed for Improper Expert Testimony

It's been my experience that folks with mental retardation can be painfully honest, really.  I mean, it's like a little kid who looks at somebody and says in the supermarket, 'You're really old,' or, you know, whataver little kids do.
That was part of the testimony of an MHMR expert at the sexual assault trial of Mark Barshaw.  Barshaw was accused of sexually assaulting a mentally retarded victim, who was 21 years-old at the time, but functioned at approxiamtely a 10 year-old level.  Upon hearing this testimony, the defense counsel objected, "You can't have somebody come in and testify to a class of people are truthful."  The State responded by stating that it was simply trying to show how mentally retarded persons "adapt" and that the testimony also went to show that "she's incapable of either appraising the the situation or the nature of the act."  The trial judge allowed the testimony to continue.
...again, it's been my experience in the hundreds and hundreds of people with mental retardation that I've seen, that it's more going to be that they're painfully honest.  They haven't learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone's feelings, or things of that nature, to hold things back.
In allowing the testimony of the MHMR expert, the trial judge abused its discretion, said the 3rd District Court of Appeals (Austin).  The Court explained that the Texas Court of Criminal Appeals has held that evidence rule 702 "does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful."  Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993).  Such an expert, is essentially telling the jury that they can believe the victim in the instant case.  This, held the CCA, "is not 'expert' testimony of the kind which will assist the jury under rule 702."  Id. at 711.

The Court also cited the CCA case Schutz v. State.  957 S.W.2d 52 (Tex. Crim. App. 1977).  In Schatz, the CCA explained that:
children and mentally retarded persons are viewed by society as "impaired." When such a witness is expected to testify, expert testimony should be permitted in the offering party’s case in chief concerning the ability of the class of persons suffering the "impairment" to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case.  The court emphasized that such testimony should be limited to the “impaired” class’s ability to accurately relate events and should not extend to the class’s tendency to do so; the latter would violate the holding in Yount.
Id. at 70 (emphasis added).  Having violated the CCA holdings in Yount and Schutz by allowing the expert to testify that mentally retarded persons are, as a class, truthful, the Court found harm and reversed the sexual assault conviction.

Justice Henson dissented and would have held that there was no harm in the trial judge's erroneous ruling.

Monday, September 6, 2010

Texas Pick 'Em; No Jury Unanimity In Continuing Child Sexual Abuse Cases

The issue of jury unanimity in Texas felony cases is a complicated area of the law.  TDCAA published a good article on the subject a couple of years ago.  Simply speaking, Texas criminal law generally requires a unanimous jury verdict wherein the all members of the jury agree on the elements of the offense.  A bit of a wrench is thrown into this system when we consider the offense of "continuous sexual abuse of a young child or children" under section 21.02 of the Texas Penal Code.

Under section 21.02, a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.  Specifically, subsection (d) of 21.01 provides:
If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.
Arguably, allowing jurors to simply pick and choose which instances (2 or more) of abuse they believe the State proved beyond a reasonable doubt without requiring that they all agree on the specific instances "undermines the weight or effect of [Texas's] rules for the mere purposes of returning a verdict."  This was the argument of Richard Michael Reckart in his appeal of his conviction to the 13th District Court of Appeals.

With a wave of the hand, the 13th Court dismissed Reckart's claim, holding:
Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.–Dallas June 30, 2010, pet. filed) (not designated for publication).
I guess I should know as well as anyone that there is no Constitutional right to a unanimous jury verdict, because we in the military justice system do not require such in any case except those involving the death penalty case (sentencing phase).  It just seems to me that if we, as a State, are going to require a unanimous jury verdict, that the requirement should be consistent as applied the the underlying offenses in a continuous abuse case.  If the jurors cannot agree on which acts were committed, isn't that called "reasonable doubt?"

Friday, September 3, 2010

Pay Up! Indigent Defendant Relieved of the Trial Court Judgment to Pay Court-Appointed Attorney's Fees

Pay Up
Sikalasinh v. State, 7th District Court of Appeals (Amarillo)

Appellant, an indigent defendant (who, incidentally, also qualified as an indigent appellant), was ordered by the trial court to pay court-appointed attorney's fees and non-resident witness travel fees as "court costs" under Articles 26.05 and 102.002 of the Texas Code of Criminal Procedure, respectively.  To be liable for court-appointed attorney's fees, there must be a finding that the Appellant had the financial resources to "be able to pay."  In this case, the trial court made no such finding, simply ordering the reimbursement on a bare record.  Accordingly, the State condeed the issue and the 7th Court reversed the part of the judgment pertaining to attorney's fees.  Regarding the issue of non-resident witness fees, the 7th Court analyzed the statutory framework, including the recent repeal of subsection (a) on Article 102.002 and determined that the legislature did not intend for a defendant to pay non-resident witness fees as "costs of court."  Conviction affirmed, but judgment modified.

No Plans to Move
Green v. State, 14th District Court of Appeals (Houston)

Appellant's conviction for failing to comply with sex offender registration requirement was reversed.  The sex-offender registration laws require that all sex offenders notify the State within 7 days of their "intent to move."  While Appellant did in fact move without providing 7-days notice as required, the evidence was insufficient to prove that Appellant "intended" to move.  Conviction reversed.

Wednesday, September 1, 2010

CPAC to Discuss Request by Greece for Cultural Property MoU

The United States often helps other countries whose cultural heritage is in jeopardy through bilateral agreements. These agreements come about through the Cultural Property Implemenation Act (CPIA). This federal statute gives force to the 1970 UNESCO Convention that protects cultural heritage by allowing the United States to set up import barriers to block looted and stolen cultural property from passing through our borders. It gives Customs and Border Protection and Immigration and Customs Enforcement the ability to seize illicit antiquities when smugglers try to bring them to America.

The CPIA sets up an advisory committee called the Cultural Property Advisory Committee (CPAC) to help the White House decide whether to enter into one of these bilateral agreements that creates import restrictions.

On October 12, 2010, CPAC will meet at the State Department in Washington, DC to consider adopting an agreement with Greece to protect its archaeological heritage from looters and smugglers. Greece is where the first building blocks of western democracy were laid, so it is important that its rich history is protected.

You can lend your voice America's commitment to Greece's archaeological treasures by submitting written comments to CPAC by  September 22, 2010.

To send comments to CPAC go to and a web page will appear. In the box titled "Enter Keyword or ID" type in "DOS–2010–0339-0001" and then click on "Search." Under the "Document Type" heading, click on the box that says "Notices." Then look toward the bottom of the page to see a link that says "Submit A Comment." Click it and start writing.

Useful comments submitted to CPAC are ones that describe how
a) how US import restrictions of objects looted from archaeological sites would help to deter the destructrion of these sites, or

b) how US import restrictions on looted and smuggled archaeological objects can promote the exchange of scientifically excavated cultural materials between the United States and Greece for scientific, cultural and educational purposes.

The information described here can be found in greater detail on the Archaeological Institute of America's special web site located at It is worth a visit to learn more.

Help protect cultural heritage by contacting CPAC and telling its members how you support adopting a bilateral agreement with Greece.