Attack By Dog Statute Upheld

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson and Smith v. State.  The Attack By Dog statute provides, in relevant part:

(a) A person commits an offense if the person is the owner of a dog and the person:
     (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner’s real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;

After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms “unprovoked” and “attack” are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms “unprovoked” and “attack” are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:

Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.

The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners’ failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will go to jail.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.

See our post about a previous (and somewhat similar) attack to this statute HERE.

Accomodating Public Attendance at a Prison Trial

Lilly v. State

The Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because "prisons are not open to the public and are more like military zones than public places."  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
2. Only people listed on an inmate-defendant's approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media's request;
4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, "the court of appeals held that Appellant's trial was not closed to the public because there was no evidence that anyone was 'dissuaded from attempting' to attend, and no one was actually prohibited from attending his trial."  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, "is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation 'to take every reasonable measure to accommodate public attendance at criminal trial.'"

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit's policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant's trial.

Having found that Appellant's trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant's trial.  Because Appellant's 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commentin on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a "public trial" is held in a prison.

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.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with 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).

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.

The GANT Exception

Last year the Supreme Court dealt law enforcement a great blow with its holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Court eliminated the automatic search of a vehicle incident to arrest, holding:

A search incident to arrest is unreasonable if it occurs after the person who is arrested has been secured and cannot access the interior of the vehicle.  

The Court, however, did not foreclose all possible searches of a vehicle incident to arrest in those instances when the arrestee is no longer within reach of the vehicle.  The Court provided an exception for "those situations when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle."  It was this exception on which the 11th District Court of Appeals (Eastland) relied to uphold the search of a passenger's purse in Daves v. State.

In Daves, the driver of a vehicle in which Appellant was a passenger was pulled over for running a stop sign.  The police officer noticed the smell of alcohol on his breath and directed that the driver perform a field sobriety test.  Confident in his abilities, the driver made a foolish mistake.

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands.  As Large was attempting to perform that task, various items began to fall from his pockets.  One of those items was a purple marihuana pipe.

Upon seeing the pipe, the driver was handcuffed and arrested for possession of drug paraphernalia.  After the police officer placed the driver in the back of the squad car, he proceeded to search the vehicle for additional evidence of drug paraphernalia.  The Gant exception!  The officer searched the driver side, the passenger side, including compartments therein, and then searched the passenger's (appellant) purse.  In Appellant's purse, the officer found a small baggie of marijuana.  He also found a baggie of cocaine between the seats.  Appellant (who was the actual owner of the vehicle) was later convicted of possession with intent to distribute 1 gram of cocaine.

In her appeal, Appellant argued that the search violated the 4th Amendment.  Citing, you guessed it, the Gant exception, the 11th Court held that the search of the vehicle, including Appellant's purse, was permissible.

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.

"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.

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.

What's That Smell?

The 11th District Court of Appeals (Eastland) issued an opinion earlier this month affirming the use of open air sniff searches by canines. In Johnson v. State, the defendant Michael Johnson was convicted of possession of a controlled substance and sentenced to two years in a state jail facility and a $3000 fine.

Johnson was stopped for running a stop sign. A back-up officer arrived on scene with “drug-detection dog.” Without any suspicion that Johnson possessed any drugs, the officer conducted an open-air search around the exterior of the vehicle and the dog alerted on the driver’s side door of the vehicle. Based on the hit, the officer searched the vehicle and found a crack rock, spoon with crack residue and an open container of an alcoholic beverage.

In regard to the lawfulness of the drug-detection dog search, the court relied heavily on Illinois v. Caballes, 543 U.S. 405 (2005). In Caballes, the Supreme Court held that, “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

So, what’s the take-away? A canine sniff search of the exterior open air of a vehicle does not violate the Fourth Amendment or the Texas Constitution for that matter.

Practice Point: It can be argued that the use of a drug-detection dog involves specialized knowledge requiring the testimony of an expert. If you are going to use this argument make sure and request the notice for expert testimony at a pre-trial hearing and, if necessary, request a separate hearing on expert testimony (A rule 702 hearing). Also remember, the Texas Code of Criminal Procedure requires the State give notice of all expert witnesses twenty days prior to trial.

11 Angry Men?

Enjoyed a nice trip to Dallas this past week.  I could have certainly done without the 104 degree weather every day, but the heat was wonderfully offset by the availability of Blue Bell Ice Cream.  As I'm getting settled back into my blogging routine, here are a couple of cases from July that you might find helpful or informative (or perhaps neither).

11 Angry Men
In Willis v. State, the 11th District Court of Appeals (Eastland) points out that under Section 62.201 of the Texas Government Code, parties in a district court may "agree to try a particular case with fewer than 12 jurors."  This is one of the exceptions to the general rule found in article 36.29(a) of the Texas Code of Criminal Procedure, which provides that "Not less than 12 jurors can render and return a verdict in a felony case."

Mail Call
In Brown v. State, the 12th District Court of Appeals (Tyler) reminds us of one of the many reasons it stinks to serve time in Texas (or anywhere) - nothing is private!  The Court explained:

[A]n inmate does not have an expectation of privacy. Hudson v. Palmer, 468 U.S. 517 (1984). Seizure of inmate mail is not a violation of an inmate's constitutional right to be free from unreasonable search and seizure. Stroud v. United States, 251 U.S. 15 (1919).  Additionally, there is no violation of an inmate's constitutional rights by prison officials reading the inmate's nonlegal mail. See Thomas v. Allsip, 836 S.W.2d 825 (Tex. App - Tyler 1992, no pet.).  Since Appellant has no expectation of privacy, the corrections officers were within their authority to obtain copies of his mail without a search warrant.

“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.”

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.

Keeping a Promise

I'm up to my ears in published cases from the various Texas Courts of Appeals.  Maybe I never should have promised to post about every published case.  Or maybe I shouldn't have taken such a long break when baby #2 came along last month.  Regardless, I promised and now I need to do a bit of housecleaning in order to keep pace with all of the recent published opinions.  Here are a few from last week:

Wilson v. State, Tex. Crim. App. (Delivered  June 9, 2010) - CCA upheld Court of Appeals decision even though the Court of Appeals based its holding on a Penal Code section under which Appellant did not preserve error, but was closely related to the section for which he did preserve error.  To remand the case and end up with the same result, would have been an exercise in futility, so it appears the Court based its ruling more on judicial economy than law.

Rivera v. State, 7th Dist - Amarillo (Delivered June 8, 2010) - Explaining that Appellant had the burden to prove his counsel was ineffective, the Court held that trial defense counsel is not required to make arrangements for the defendant to view and/or listen to electronically recorded evidence prior to his guilty plea.  A good quote from this Per Curiam opinion:

Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

Griffith v. State, 11th Dist - Eastland (Delivered June 10, 2010) - Court affirmed manslaughter conviction.  Appellant acted recklessly when he drove his vehicle while intoxicated.  A defendant need not be aware of the specific risk of another's death to be guilty of manslaughter.

Steadman v. State, 11th Dist - Eastland (Delivered June 10, 2010) - The Court upheld the ruling of the trial court allowing a police officer to testify that the defendant "neither admitted nor denied" that he committed the offense during pre-arrest/pre-interrogation interview with police.  The Court had to stretch for this opinion, but here's what it came up with:

We hold...that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Steadman‟s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant‟s post-arrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues.

Okay, there's a few cases.  I may have to do a couple more posts like this one to catch up.  Please bear with me.

Voir Dire, Miranda, and Interrogations

Here are a few tidbits from the recent 11th District Court of Appeals decision in Gately v. State. Sorry, no time for analysis, but thought the following holdings might interest you.  Not anything new, just good reminders.

To Preserve Error During Voir Dire Your Must Strike the Complained-of VenireMember -

To preserve error on a trial court’s denial of a challenge for cause, an appellant must take the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.  Because appellant did not use a peremptory strike on Northcutt, appellant failed to preserve error on his first issue.

Miranda Waivers Need Not Be Express to be Effective -

However, appellant argued that the statement was inadmissible because he did not expressly waive his right to counsel.  Neither a written nor an oral express waiver is required to support a finding that an accused waived his Miranda rights.  A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.  However, a waiver need not assume a particular form, and in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.”  The question is not whether an accused “explicitly” waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily.  Whether an accused waived his Miranda rights is determined from the totality of the circumstances.

A Suspect's Invocation of his Constitutional Right to Remain Silent, however, Must be Express -

A police officer need not stop questioning a suspect unless the suspect’s invocation of rights is unambiguous. The officer is not required to clarify ambiguous remarks.

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.

Ignorance of the Law - a Defense for Cops

So we all know that a person can (for the most part) be arrested for, charged with, and convicted under a law he didn't even know existed.  We've heard the unapologetic phrase since our first criminal law course in law school - "Ignorance of the law is no defense."  If we, as a society, accept this precept of criminal law as it relates to defendants, what then should we expect from our law enforcement officers?

To be more specific, should we expect cops to be knowledgeable of the law? Can we allow our police officers to make arrests or detain citizens for laws that do not exist or laws that have been repealed?  I should hope not! Unfortunately, however, as the 11th District Court of Appeals (Eastland) explained last week in State v. Clark:

There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.

Here's what happened.  At 3:20 AM near a residential area of Abilene, an officer observed a vehicle performing "an exhibition of acceleration."  You know, revving the engine, spinning the tires, but going nowhere - the sort of thing that makes a lot of racket.  The officer stopped the vehicle on account of the "exhibition of acceleration" and ultimately arrested the driver for DWI.

The driver moved to suppress the evidence of DWI by challenging the reasonableness of the stop under section 545.420 of the Texas Transportation Code.  This section  prohibits excessive exhibitions of acceleration, but only when the driver is engaged in a street race against another vehicle.  So, essentially, the cop got it wrong.  Finding that the officer erroneously "stopped the vehicle for exhibition of acceleration" and finding that the "vehicle was not in competition or racing any other vehicle," the trial judge suppressed the evidence.

On appeal, the State urged a new theory to justify the stop - Abilene Municipal Code Sectoin 18-153, which prohibits disturbances by a motor vehicle.  Although, from the record, the officer was completely unaware of this provision when he formed "reasonable suspicion" to execute the stop, why should that hinder the State?  After all, the ends justify the means, right?  Holding that "[t]here need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant," the 11th Court reversed the ruling of the trial court. 

The truly disturbing part of this case, aside from the reaffirmation that cops need not be informed of the law and that, in Texas, the ends justify the means, was the bait and switch that the appellate court pulled on the defendant.  After finding that the Abiliene Municipal Code section (of which the officer was unaware) justified the stop, the court refused to entertain a challenge by the defendant to the constiutionality of the section, stating:

He did not present this challenge to the constitutionality of Section 18-153 at the trial court level.  Because section 18-153 of the Abilene Municipal Code constitutes the objective basis for the stop of Clark, not the basis for his prosecution, his claim to its constitutionality was not preserved and may not be presented for the first time on appeal.

Seriously?  How could we expect him to present his challenge at the lower level when the municipal code section was not in issue? 

It's truly a scary notion that our law enforcement officers can simply stop us for virtually anything so long as our prosecutors can later justify the stop.  They say, "ignorance of the law is no defense."  That phrase has no application for cops.

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned that "[h]ere, the primary purpose behind the [out-of-court] statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e conclude that the court of appeals erred to hold that Smith's testimony recounting the statements of the out-of-court confidential informant did not violate the Confrontation Clause." "[I]t is manifest that the 'primary purpose' of Detective Smith's communication with his confidential informant was to pave the way for a potential criminal prosecution."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."