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 final 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.

CCA Finds Constitutional Ex Post Facto Violation That Was Completely Missed at the Trial Level

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

Batson Challenge: Must the State have Questioned the Stricken Juror?

In a criminal trial, each side is allowed to strike a certain amount of prospective jurors (venire members) from the jury using peremptory strikes.  They can strike these venire members for any reason at all, so long as it is not discriminatory in nature.  If one side believes that the other has used a peremptory strike in a discriminatory manner (e.g. to strike a certain race from the jury), they can make what is called a Batson challenge.

Reviewing a trial court's denial of a Batson challenge in Grant v. State, the 10th District Court of Appeals (Waco) found that the State's explanation for striking a certain venire member was a pretext for racial discrimination because "there was no meaningful examination [of the member] regarding the reason the State used to strike him."  The Court of Criminal Appeals didn't agree with the legal reasoning of the Waco jurists.  Writing for a unanimous court, Judge Womack explained:

We hold that a lack of meaningful questioning might be sufficient to support a Batson challenge under the appropriate circumstances, but the Court of Appeals erred in applying the standard of review in this case.

The Court further explained that a reviewing court must given great deference to a party's facially race-neutral  explanation for using a peremptory strike, reversing only if the court's ruling was clearly erroneous.  (Is it wrong that I'm am bored while writing this post?  I can only imagine how bored you must me if you are reading it, so I'll cut to the chase).

In Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990), the CCA created a non-exclusive list of five factors to determine whether a prosecutor used a peremptory challenge based on race.  One of the factors was the lack of meaningful questioning of the prospective juror, but the CCA stated that this factor was not dispositive.  Accordingly, because the Court of Appeals required the state to individually question the prospective juror, and because the Court of Appeals did not give great deference to the state's facially race-neutral reason for striking the juror, the CCA reversed.

Wheww!  That was terrible.  I really need to find some better cases to write about.  I have a backlog of Courts of Appeal opinions.  Maybe I should read through them and find something sexy.

DWI Blood Draws - "The most important decision we make all year."

Here are a couple of recent published decisions from the Courts of Appeals regarding the taking of blood samples for suspicion of DWI.

We'll begin with State v. Robinson – (10th District – Waco), June 16, 2010.

In this case, the Court upheld the trial court’s suppression of blood test results because (arguably) the State did not comply with the requirement under section 724.017(a) of the Texas Transportation Code that “only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse…take a blood specimen at the request or order of a peace officer.” The defendant, who had the initial burden to produce evidence that the statute was violated and that the evidence should be excluded, apparently shifted his burden to the State and the trial court ultimately held that because the State could not produce credible evidence that an actual nurse drew the defendant’s blood, the test results should be excluded.

Chief Justice Gray “strongly dissent[ed],” characterizing this case at the “certainly the most important decision” the Court has made “in a criminal case this year.”  He notes from the outset that "the hearing was before a county judge who would not be expected to be fully in tune with the niceties of a shifting of the burden of proof."

It is clear that the trial court placed the burden of proof to show that the blood draw was performed in compliance with the statute, Texas Transportation Code section 724.017, on the State, failing to prove such the trial court was going to suppress the blood evidence. Specifically, the trial court was focused on the fact that the State had not provided to the court’s satisfaction that the person who drew the blood was qualified as required by the statute.

Highlighting what he sees that the important practical implications of this decision, Chief Justice Gray writes:

If all a defendant has to do is to move to suppress evidence and then the State must go forward to prove the evidence was lawfully obtained, we can expect to see an even greater number of these motions and related appeals. A defendant can essentially file a motion in every case and the State will have to defend the manner in which the evidence was obtained. Thus, the presumption of proper police conduct is destroyed.

I'm with Chief Justice Gray on this one.  A thin record and an illogical burden shift should have made this case a winner for the State.  Discretionary review, perhaps?

Now onto State v. Jordan – (3rd District – Austin), June 17, 2010.

In Jordan the Court held that the affidavit for a search warrant to obtain Appellant’s blood sample for suspicion of DWI was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The State argued that because the blood was drawn at 4:20 am on June 6, 2008, the same day as the affidavit was signed, then no more than 4 hours and twenty minutes could have elapsed since the time of the observed conduct and the taking of Appellant’s blood. The Court, however, was not persuaded that the alleged offense and the completing of the affidavit occurred on the same day. Suppression of blood results affirmed.

You've Been Evicted! Now Go to Prison for 25 Years

When it rains it pours.  For texan Joseph C. Ford, that phrase is more true than ever.  It's not enough that he was convicted of a sex offense which requires registration as a sex offender, but now he gets 25 years in prison for failing to update his registration within 7 days of an expected move even though he was evicted from his home.

The 10th Court of Appeals (Waco), in Ford v. State, recently upheld the conviction and sentence of the 19th District Court of McLennan County wherein Ford was convicted for violating Texas' sex offender registration statute (Tex.Code.Crim.Proc.Ann. art. 62.101(c)(Vernon 2006)).  Ford was evicted from his home.  Because of his eviction, Ford was unable to comply with the registration statute which requires a sex offender to update his new address with county officials at least 7 days prior to his move.  Although Ford's move was arguably unexpected, he was convicted and sentenced nonetheless.

I'm sure there's much more to this story, and the State was probably justified, but it appears that Ford got a raw deal.  Texas courts have no mercy on sex offenders (and rightfully so if you ask me).

Waco Court of Appeals Gets One Wrong!

If you will indulge me, this post is a bit of a rant.

In a recent case, In the Matter of J.W., a Juvenile, the 10^th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.

I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here.  I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.

The case involved the written and signed statement of a witness to a law enforcement officer.  The witness implicates the defendant in her statement, providing an eye-witness account of the crime.  As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.

However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all.  She could, however, identify her signature at the conclusion of the statement.

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   

The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10^th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
     

1. the witness must have firsthand knowledge of the event,
2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
3. the witness must lack a present recollection of the event, and
4. the witness must vouch for the accuracy of the written memorandum.

 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996).  From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4^th prong is the substance of the question presented to the appellate court.  In order to satisfy the 4^th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it.  While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is: 

WHAT ABOUT THE 6^TH AMENDMENT?  Does this juvenile defendant not have the right to confront the witness against her?  This eye-witness statement implicating the defendant is surely “testimonial” under Crawford.  And as a testimonial statement, the defendant has a right to cross-examine the declarant.  This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement.  More importantly, her statement could not be subjected to the “crucible of cross-examination.” 

To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant.  Normally that is something that will come to light during cross-examination (if not sooner).  However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.   

In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis.  Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements.  I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion. 

I sincerely hope that the Supreme Court of Texas takes a look at this case.  Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6^th amendment argument was made during trial.  I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.

Anders Brief - How to Avoid a Frivolous Appeal

What do you do when you believe that there exist no grounds for appeal to your indigent defendant's conviction? Do you file an appeal anyway, knowing that your points of error are frivolous and risk running afoul of your state bar's ethical obligations? Do you simply file no appeal at all and leave your client high and dry? The recently reported CCA case of Garner v. State, reminds us what to do.

The solution is the Anders brief, named after the Supreme Court case of Anders v. California, 386 U.S. 738 (1967) and elaborated upon in Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). In Anders, the Supreme Court held that the responsibility to determine whether an appeal is frivolous in nature lies with the appellate court - not with the attorney of record. In order to ensure effective counsel on appeal for indigent defendants, without requiring counsel to breach ethical prohibitions against making frivolous arguments, the Supreme Court instituted the now-established procedure of the Anders brief:

1. Following conviction, if counsel, after a conscientious examination of the case, believes that all imaginable points of error are purely frivolous, then counsel must (a) file a brief with the appellate court detailing the reasoning for that belief and referring to anything in the record which might arguably support the appeal, and (b) request permission to be removed from representation.
2. A copy of counsel's brief must be furnished to the indigent defendant, who may file a pro se brief, thus allowing him to raise any points that he chooses.
3. The appellate court must then examine the record and decide whether the appeal is wholly frivolous.
4. If the court agrees that the appeal is frivolous, it may grant counsel's request to withdraw and affirm the conviction. If, on the other hand, it finds any of the legal points arguable on the merits (and therefore not frivolous) it must remand the cause to the trial court so that new counsel may be appointed to brief the issues.

In Garner, the CCA determined whether the lower court's lengthy opinion analyzing and discussing the reasoning behind its holding that the appeal was frivolous, was implicitly a determination that there were "arguable grounds" for review. In affirming the Tenth Court of Appeals' decision, the CCA held that when a court of appeals find no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.