More Rules of the Road: Passing on the Shoulder is A-Okay

It appears that the Texas Court of Criminal Appeals is also becoming the State’s highest traffic court.  Last week, I posted about a CCA case involving merging traffic.  This week, the CCA issued an opinion on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop v. State, the Appellant was pulled over after a police officer observed him using the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated.  At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop.  Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

     (2) to accelerate before entering the main traveled lane of traffic;

     (3) to decelerate before making a right turn;

     (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

     (5) to allow another vehicle traveling faster to pass;

     (6) as permitted or required by an official traffic-control device; or

     (7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI.  The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely.  Merely driving on an improved shoulder is not prima facie evidence of an offense.  Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred. 

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.  So there you have it - traffic lesson number two from the CCA this month.  You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Judge Johnson concurred, noting that driving on the right should at or near a railroad crossing is typically unwise.

If You Don't Have Anything Nice to Say...

After the defendant was convicted in the case of State v. Lucio, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

"There They Are Right There!" - A Defective Terry Stop

The propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I've written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant's warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said "There they are right there."  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have "reasonable suspicion" to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said "There they are."

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court's initial ruling.  The standard of review (abuse of discretion - outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.

Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District Court of Appeals (Fort Worth) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

Blood Draws by Police Officers: Bridging a Supreme Court Gap

In Schmerber v. California, 348 U.S. 757 (1966), the U.S. Supreme Court held that a warrantless blood draw constitutes a search and seizure under the Fourth Amendment. The Court also laid out the two-part test for determining the legality of the search:

1) Whether the police were justified in requiring [the suspect] to submit to a blood test; and
2) Whether the means and procedures employed in taking [the suspect’s] blood respected relevant Fourth Amendment standards of reasonableness.

Schmerber, however, involved a blood draw performed by medical personnel at a hospital according to acceptable medical practice. In holding that the search was reasonable in that case, the Court conspicuously noted:

We are this not presented with the serious questions which would arise if a search involving use of a medical technique, even the most rudimentary sort, were made by other than medical personnel or in other than a medical environment – for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection or pain.

Id. at 771-772 [emphasis added]. 

Well…what if a police officer draws the blood? At the stationhouse?

This happened in State v. Johnston.

A woman was arrested for suspicion of DWI and two Dalworthington Gardens officers drew her blood at the Dalworthington Gardens stationhouse. That the officers had a warrant did not convince the suspect to comply with the request to draw her blood. Ultimately, the officers had to strap her to a table using gauze to keep her still enough to draw her blood.

Although the officer that drew the blood was a prior EMT and had been certified by a local physician to draw blood, the trial court suppressed the blood evidence, finding that the search was unreasonable under Schmerber. Troubled by the fact that the officers did not ask the suspect for a general medical history before conducting the blood draw, the fact that the blood draw was not recorded, the fact that the suspect was restrained, and the fact that the department did not have any clear guidelines for using force during DWI blood draws, the 2nd District Court of Appeals (Fort Worth) agreed that the trial court appropriately suppressed the evidence.

The State appealed, arguing that the Court of Appeals’ interpretation was too narrow. The defendant also appealed, arguing that the Supreme Court intended a per se ban on police officers drawing blood from DWI suspects.

The Texas Court of Criminal Appeals began its analysis by recognizing that the “for the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol content.” And in this case, because there was no evidence that the suspect suffered from a medical condition that would have made another means of testing preferable, it was not unreasonable (under Schmerber) to draw the suspect’s blood.

The CCA also held that Chapter 724 of the Texas Transportation Code – the chapter that deals with the implied consent law and details who may draw a person’s blood – is inapplicable to a reasonableness determination in this case, because the officers had a warrant. The defendant argued that because a police officer is not listed as a person authorized to draw blood under Chapter 724, the blood draw was unreasonable.  Chapter 724, the CCA concluded, applies only in cases where there is no warrant.

Regarding the test for reasonableness, the CCA concluded that “the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. In this case, the totality of the circumstances indicate that the search was reasonable.

•  The officer that drew the blood was a licensed EMT. (He had also been certified by a local physician, but the CCA didn’t care about that).
• The Supreme Court (Schmerber) does not require that the draw be done in a hospital or clinic and several other jurisdictions agree.
• The trial court concluded that the officers followed medically accepted procedures for drawing the blood.
• The use of reasonable physical force to obtain a blood sample is permissible.

The CCA held that the blood draw performed at the stationhouse by the police officers was reasonable under the Fourth Amendment and Schmerber.   I would agree (in this case).  I wonder how many police officers (especially ones that deal regularly with DWI) are getting in line to get EMT certified now.

Stop the Shilly-Shallying

In a felony DWI case, (Gaal, v. State) the defendant was set to plead guilty. When the time came for him to plead, however, he refused. The trial judge stated, “All right. We’re supposed to have a plea here today. It appears that [the defendant] does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it’s for the maximum term of ten years.”

The defendant later filed a motion to recuse the trial judge, contending that his statement that he would not accept a plea deal for less than the maximum, showed that he could not be fair and impartial. Another judge, at a recusal hearing, denied the request. On appeal, the 2nd District Court of Appeals (Fort Worth) held that appellant was denied due process by the trial judge’s statements and that the judge should have been recused.

The Court of Criminal Appeals now holds that the lower court got it all wrong. The CCA characterizes the trial judge’s statement not as a denial of due process.

The trial judge’s comment could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he has twice rejected favorable plea bargains…and was continuing to drink in violation of his bond conditions.

The CCA goes on:

A reasonable person, based on the totality of the circumstances, would translate the judge’s statements as, “I’m not going to reset this case for any more plea negotiations; we’re going to trial.”

And as the Court points out, a “defendant does not have an absolute right to enter into a plea bargain” and “the trial judge doesn’t have to take a plea bargain.”

Let the Record Reflect...

I cringe when I hear an attorney say "Let the record reflect."  Of course the record will reflect!  If you're saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.  Use it if you want, but you won't ever hear me say it.  I apologize for the rant.  That is not what this post is about.

Below are a couple of recent cases from the Texas Court of Criminal Appeals.

Newman v. State (on appeal from the 14th District Court of Appeals - Houston) - Appellant filed an unsworn motion in the trial court, challenging the eight-year delay from indictment to trial as a violation of his constitutional right to a speedy trial.  The trial court denied the motion and indicated that it did so after a hearing.  The appellate record, however, did not contain a reporter's record of this hearing.  Noting that the record was "sparse" and cautioning "practitioners regarding the importance of developing a record," the court of appeals, nonetheless, overturned the trial court's ruling and held that Appellant's right to a speedy trial had indeed been violated.  The CCA reversed the court of appeals, holding that Appellant has "failed to present a record demonstrating that the trial court's decision should be overturned."  The CCA noted that "an unsworn motion does not, by itself, present evidence upon which relief can be granted" and held that "the court of appeals would have erred to consider the factual assertions in Appellant's unsworn speedy-trial motion."  Simply put, the record did not reflect.

Ex Parte Chamberlain (on appeal from the 2nd District Court of Appeals - Fort Worth) - In this case, Appellant alleged that the lifetime sex-offender registration requirement violates his substantive due process rights because there is no mechanism to permit any future risk reassessment concerning the probability or likelihood of recidivism.  The lower court rejected the claim because under the Texas Code of Criminal Procedure Articles 62.401 through 62.408, there is a statutory mechanism that allows a person subject to lifetime registration requirement to seek early termination.  After the lower court's ruling but before the CCA's decision, the Council on Sex Offender Treatment (CSOT) published a new list regarding the classes of sex offenders which may apply for deregistration.  Accordingly, because the court of appeals did not consider this new list, the CCA remanded the case back to the court for another proceeding.  The CSOT's new list is available HERE.

One is “Ouch,” the Other is “Yuck.”

Last week, in McKithan & Welsh v. State, the Texas Court of Criminal Appeals held that, under the cognate pleadings approach to one-step lesser-included-offenses (see Hall v. State, 225 S.W.3d 525), offensive contact assault IS NOT an LIO of bodily-injury assault.  Writing for the majority (there were no dissenters, but some judges concurred), Judge Hervey penned a 19-page history on the evolution of Texas’ approach to LIOs.  I found the opinion long and not particularly interesting.

Apparently, I was not alone.  Attempting to wade through the mess of the majority opinion, Judge Cochran wrote a concurring opinion (joined by Judge Holcomb), wherein she simplified the issues and holding.  Here’s her view of the case:

I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.  One damages the body, the other damages the mind, emotions, or sense of well-being.  One is the intent to cause a physical injury, the other is the intent to cause a psychic injury.  One is “ouch,” the other is “yuck.”

Takeaway:  Assault by offensive contact is not a lesser-included offense of Assault by bodily injury.  The legislature intended to create completely separate theories of criminal conduct when it drafted sections 22.01(a)(3) and 22.01(a)(1).

Jurors Refuse to Consider Minimum Punishment - CCA Reverses the Case

During voir dire in an aggravated sexual assault of a child case, the defense attorney posed the following question to each venire panel member individually:

I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child.  They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital…Could you honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment?

Responding to that question, more than 50 of the panel members indicated that they could not consider the minimum punishment.  The defense attorney did not ask any further clarification or rehabilitation questions on this subject.  It is important to note, however, that prior to the defense attorney's questioning, the trial judge and the prosecutor fully explained that jurors must consider the entire range of punishment.

The defense attorney challenged all of the venire members that indicated they could not consider the minimum punishment, but the trial judge denied most of his challenges.  Several of the challenged panel members were ultimately seated as members of the jury, which returned a guilty verdict and a 20-year prison sentence.

On appeal, the 2^nd District Court of Appeals (Fort Worth) held that the trial judge abused his discretion in not excusing the challenged panel members.  The Court of Criminal Appeals, in a unanimous opinion released this week, (Cardenas v. State) affirmed the holding of the 2^nd Court.  In so holding, the CCA explained:

Jurors must be able to consider both a situation in which the minimum penalty would be appropriate and…a situation in which the maximum penalty would be appropriate.  Therefore, both sides may questions the panel on the range of punishment and may commit jurors to consider the entire range of punishment for the statutory offense.  A question committing a juror to consider the minimum punishment is both proper and permissible.

The CCA went on to distinguish between proper and improper commitment questions, noting that:

A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment, but the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.   (See Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001))

Takeaway:  Nothing new here.  Questions like the one asked in this case are common for defense attorneys.  If a venire member cannot consider the minimum punishment, the trial court should ALWAYS exclude them from the panel.  Period.

No Free Speech Right to Flash Gang Signs

“Gang hand signs represent an integral part of [a gang’s] illegal activities.” As a tool to help eliminate gang-related public-nuisance activities, a Wichita Falls judge, pursuant to his authority under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code, issued a permanent injunction prohibiting members of a certain local gang from exhibiting gang hand signs (and from wearing “gang-related clothing”) . The injunction applied only to a small area of town (1.2 miles by 1.4 miles).

When one of the gang members that was subject to the injunction was later observed flashing “gang signs” while (surprise, surprise) wearing gang-related clothing, he was charged with violating the injunction. The gang member then challenged the injunction as a violation of his 1st Amendment right to free speech and as being unconstitutionally vague. Martinez v. State (CCA slip opinion of 6 October 2010 designated for publication)

First Amendment
The court’s first task in a free speech case “is to determine whether [the provision] is a content-neutral or a content-based time, place, and manner restriction. “ If the provision is content-based, the court must apply the strict scrutiny standard and the State must then show that the provision was narrowly tailored to serve a compelling state interest. In this case:

The court of appeals held that the gang hand sign restriction was not content-based because it prohibited all gang hand signs, not just those used by the VC street gang, and therefore was not focused on the particular message.

(See 2nd Court's unpublished memorandum opinion HERE).  The Court of Criminal Appeals, however, disagreed with the Fort Worth court's conclusion, stating:

The court of appeals’s reasoning would apply had provision sixteen banned all hand signs. However, the content of the gang hand signs and clothing provided the basis for the restrictions in provision sixteen and the purpose was to ban the message conveyed by such signs and clothing.

Nevertheless, the CCA upheld the injunction, holding that:

[t]he State has a recognizable compelling interest in ensuring the safety of citizens in the VC Safety Zone by preventing crime, and the judge’s order in this case was issued to protect that interest…The making of hand gang signs and the wearing of gang clothing are a primary feature of street gangs. A street gang is identified first and foremost though hand signs and attire; it puts public, and most of all, rival gangs, on notice of its existence and presence. Rivalries exist between street gangs, and the use of gang hand signs and clothing, the identifier, contributed to the onset of violence between gangs.

The CCA further explained that the provision was narrowly tailored by geography, noting that the judge’s order contained well-delineated geographic boundaries outside of which Appellant remained free to engage in making gang hand signs and wearing gang clothing.

Vagueness
"A Law is unconstituionally vague when it fails to define the criminal offense with sufficient definteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement." Rejecting the notion that the injunction was unconstitutionally vague, the CCA concluded that the judge’s order was “sufficiently clear so that [Appellant] could understand that VC gang hand signs and clothing were prohibited conduct. The CCA went on to state:

[Appellant], determined to be an active VC gang member by the district court judge (a fact he has never contested and ultimately admitted when pleading guilty), must have been aware of the gang’s identifying hand signs and clothing and therefore the precise conduct that he was charged with, and convicted of, violating.  Indeed, we note that the arrest report in cause number 39396-F reflects that [Appellant] told the arresting officer that the color of clothing that he was wearing were “his gang colors.” Thus, we find that his vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.

It appears from this holding that the CCA will give great deference to the reasonable requirements imposed by a judge under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code enjoining criminal street gang activity. Perhaps this case will serve as a license for more judges to get creative of dealing with Texas gangs. We’ll see.

Note:  Appellant also challenged the trial judge's authority to issue the injunction on a Separation of Powers theory.  It failed, but was interesting (at least to a nerd like me).

16 Will Get You 20!

The colloquial phrase "sixteen will get you twenty" is a common exclamation expressing the widespread awareness of statutory rape laws and the strict liability aspect of the offense.  There is no means rea (evil mind requirement) for statutory rape and there is no mistake of fact ("but I thought she was 19") defense.

Appellant Mark Fleming in the 2nd District Court of Appeals (Fort Worth) challenged the strict liability nature of Texas' statutory rape offense (section 22.021(a)(1)(B)(iii) of the Texas Penal Code), arguing that the lack of a means rea requirement violated his rights under the federal due process and Texas due course of law provisions.

Fleming argues that the absence of a mens rea or mistake-of-age component to [Texas' statutory rape provision] is a wrongful government action irrespective of the procedure in place to guarantee fairness.

In considering his argument, the Court conducted somewhat of a survey of many jurisdictions across the country.  Mentioned in the opinion to support the notion that statutory rape (strict liability) laws are not dead in America were cites to cases from California, Wisconsin, Colorado, Louisiana, Maryland, Rhode Island, Missouri, Nebraska, Michigan, Massachusetts, Iowa, New Hampshire, and Utah, all upholding a similar provision.  It appears the Court went to such lengths to cite cases from other states in order to refute the idea that

the lack of a mental culpability component offends 'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'

and thereby avoid application of "strict scrutiny" to Appellant's constitutional claim.  With apparent national support, the Court thus held:

With these decisions and the backdrop of the majority rule in this nation regarding statutory rape in mind, we conclude that there is no fundamental right that a State is required to include a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, section 22.021 only needs to serve a legitimate state purpose to be constitutional against the backdrop of substantive due process. Strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor.

Although sound reasons might be advanced on either side of the argument of whether a mens rea component should exist or whether a mistake-of-age defense should exist in section 22.021, determining the line that separates what is criminal from what is not lies peculiarly within the sphere of legislative discretion—especially,as here, where no fundamental right is at question.

So, in case you were still wondering, "16 will still get you 20!"

You Snooze, You Lose.

I've posted about this before, but it is always worth saying again.  If you are going to object to the admission of seized evidence, do not wait too long!  The appellate courts are quick to conclude that you failed to preserve error.  A recent case out of the 2nd District Court of Appeals (Fort Worth), Ratliff v. State, serves as a reminder of this principle.

In Ratliff, the Court instructs:

To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.  If a defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it.

Ratliff involved the seizure of drugs and drug paraphernalia.  The defense filed a pretrial motion to suppress, but failed to obtain a ruling prior to trial, opting to wait until the subject arose during trial to object.  The problem was that the trial defense attorney allowed the police officer to testify about the search and the items he seized before making an objection to the actual admission of the exhibits.  A bad strategy says the 2nd Court.

[A]ppellant's failure to object at the time [the detective] specifically described the physical evidence and explained how he found that evidence forfeited any error associated with his objection to the State's later introduction of the evidence.

The Court also included a few examples of similar blunders in other cases.

In Tell v. State, an aggravated robbery case, the defendant attempted at trial to suppress the admission of a ski mask that police officers obtained from his residence without a search warrant or consent. 908 S.W.2d 535 (Tex. App.--Fort Worth 1995, no pet.).  But the defendant allowed a police officer to answer four questions about seizing the ski mask before objecting to the evidence.  On appeal, we concluded that [b]ecause Tell failed to object at the time the ski mask was mentioned and allowed further questions and answers before finally objecting, he waived any error in the admission of the ski mask.

Similarly, in Turner v. State, the defendant contested the trial court's admission of evidence that a detective had seized from his vehicle after his arrest. 642 S.W.2d 216 (Tex. App.--Houston [14th Dist.] 1982, no pet.).  The court of appeals held that the defendant forfeited his objections at trial by allowing the detective to testify “extensively to the arrest and the items found in the search.  The appellant did not object to the testimony but only to the five exhibits.

Moral of the story: Objections must be urged at the earliest possible opportunity.  If you try to wait to object in order to spring a tactical trap on your opponent, you may be actually springing a trap on yourself (and your client).

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.

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.”

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).

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.

A Good Custodial Interrogation String Cite

Everybody loves a good string cite.  You know, when the court wants to consolidate lots of authority for its position, but doesn't actually want to write about the cases, so it simply lists a string of case citations with a parenthetical one-line synopsis of the relevant holding.  In reading Campbell v. State, yesterday, a case out of the 2nd District (Fort Worth) regarding custodial versus non-custodial interrogations and Miranda warnings in a DWI context, I came across a good string cite and I thought I'd share it. 

To give some context, the court is in the process of determining whether Appellant's statements to police officers both prior to and after being placed in handcuffs should be excluded under article 38.22 of the Texas Code of Criminal Procedure or Miranda, when it provided this smattering of applicable Texas caselaw on the subject:

• Alford v. State, 22 S.W.3d 669, 671–72 (Tex. App.—Fort Worth2000, pet. ref’d) holding that appellant was in custody when he was stopped, placedon the ground, and handcuffed, and his response, that he had had six beers, whenasked if he had been drinking by an officer who arrived on the scene seven minutes later, should have been suppressed since he was not given his Miranda warnings;
• Jordy v. State, 969 S.W.2d 528, 531–32 (Tex. App.—Fort Worth 1998, no pet.) holding that appellant was subjected to a custodial interrogation following a traffic accident when he laid down on the ground and the officer called an ambulance before asking appellant how much he had had to drink, to which appellant replied,“A lot.”
• Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App.) cert. denied, 522 U.S. 894 (1997) holding that incident was temporary investigative detention when officer testified at suppression hearing that he was not arresting Rhodes when he handcuffed him and that he handcuffed him primarily out of concern for officer safety—it was dark, the area was high-crime, and officer was alone with suspect;
• Arthur v. State, 216 S.W.3d 50, 53, 57–58 (Tex. App. --Fort Worth 2007, no pet.) holding that appellant’s statements were not a product of custodial interrogation when officer saw appellant’s vehicle drifting and speeding, initiated a traffic stop and asked some questions about whether she had had anything to drink which she answered inconsistently and in a loud, moderately slurred voice and administered three sobriety tests and a portable breath test before arresting her;
• Hernandez v. State,107 S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d) concluding that appellant’s statement that he had consumed nine beers was made during investigatory detention after officer saw appellant speeding and weaving between lanes without signaling, pulled him over, noticed the smell of alcohol and appellant’s bloodshot eyes, and administered three field sobriety tests, all prior to full custodial arrest;
• Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.—Houston [1st Dist.]2003) concluding that it was reasonable for the officer to secure appellant in handcuffs when appellant was uncooperative and belligerent, so that officer could complete his DWI investigation, rev’d on other grounds, 138 S.W.3d 331 (Tex. Crim. App. 2004);
• Lewis v. State, 72 S.W.3d 704, 708–13 (Tex. App.—Fort Worth 2002,pet. ref’d) distinguishing Jordy and Alford as presenting “other circumstances”requiring Miranda when their facts went beyond the roadside questioning and sobriety tests found in DWI temporary investigation cases.

There you have it.  If you have a custodial interrogation issue in a DWI case, you now have a jumpstart on your legal research.  Thank you 2nd Court of Appeals.

A Consensual Police-Citizen Encounter - Does Such a Thing Exist?

Last week, in State v. Priddy, the 2nd District Court of Appeals (Fort Worth), explained:

The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens: arrests, investigative detentions, and encounters.  Unlike an investigative detention or an arrest - each a seizure for Fourth Amendment purposes - an encounter is a consensual interaction, which the citizen may terminate at any time.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver's license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed.  Through midst of grilled onions, ground beef, and mustard, the officer detected a hint of alcohol from inside the vehicle.  Now, according to the appellate court, the "encounter" created reasonable suspicion by which the officer could initiate an investigative detention.  Of course, the ensuing investigative detention substantiated the DWI.

Here's what the Court had to say about "encounters:"

So long as the citizen remains free to disregard the officer's questions and go about his or her business, the encounter is consensual and merits no further constutional analysis.

Are you telling me that this woman could have simply waived off when the office approached her vehicle?  She could have simply refused to answer questions - refused to cooperate - and everything would be fine!?  I seriously doubt it.  I submit that if she had refused to cooperate, the officer would have used that fact (and the court would have ratified the decision) as reasonable suspicion to further detain the woman to investigate.  In my view, there was absolutely no way she could have gotten around talking to the officer.  None.

She was able to convince the trial court that the search was unreasonable, but the 2nd Court reversed.  Best of luck to Mrs. Priddy at trial.

Please Drive Safely While Evading Arrest

Section 12.35 of the Texas Penal Code allows a defendant to be punished for a 3rd degree felony if, while in the commission of a state jail felony, he/she uses or exhibits a deadly weapon.

But what if the deadly weapon is part of the underlying offense?  For instance, what if a person evades arrest by fleeing in a vehicle?  Evading arrest is a crime under Section 38.04 of the Texas Penal Code and when someone uses a vehicle to evade arrest, it is a state jail felony.  Can that crime then be punishable as a 3rd degree felony under the Section 12.35 enhancement provision simply because the actor uses a deadly weapon (a vehicle)?

While it may seem illogical to permit a deadly weapon enhancement where the use of the instrumentality characterized as a deadly weapon is an essential element of the underlying offense, Texas allows it.  I know...I couldn't believe it when I read it either.  Did the legislature truly intend that the offense of evading arrest by using a vehicle be enhanced further for proof that the actor used a vehicle?  I would hope not.  Although, the Texas Court of Criminal Appeals has not yet weighed-in on this issue, the 2nd District Court of Appeals (Fort Worth) and, most recently, the 6th District Court of Appeals (Texarkana), have explained:

Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced.

State v. Brown, ___ S.W.3d ___ (Tex. App.--Texarkana 2010).

This holding, to me, was a bit discouraging.  It essentially means that any offense wherein use of a motor vehicle is a necessary element (e.g. DWI) may be enhanced because the actor used a "vehicle."  I could understand enhancing the punishment if the actor used a different weapon, such as a gun or a knife to evade arrest, but a vehicle? C'mon!  Thankfully, Justice Carter's concurring opinion clarified the issue and tempered the majority opinion with some logical reasoning.  He stated:

The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. TEX. PENAL CODE ANN. § 38.04(a), (b)(1).  Theoretically a motor vehicle may be used in many ways—even if it is driven in a safe, uneventful manner, the offense would be a state jail felony.  The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof.  Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury.  TEX. PENAL CODE ANN. § 1.07(17) (Vernon Supp. 2009).  As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref‘d).

At least we know that enhancement isn't automatic - although I still don't think the hurdle is too high for the State to jump in cases such as these.  Is speeding enough?  What about swerving?  Hopefully the CCA will take this up soon and provide some clarity.  Until then, remember,

If you are going to evade arrest in a vehicle, drive carefully, within the speed limit, and obey all traffic regulations.

Cell Phone Video Falls Under "Plain View" Exception

Can a cell phone video (e.g. Child Pornography) fall under the "plain view" exception to the 4th Amendment prohibition against unreasonable searches and seizures?  Maybe.  Well, what if the defendant voluntarily hands his phone over to the police officer?  Still maybe.  Just like every other 4th Amendment case, if the officer plainly views the evidence from a lawful vantage point, there is no search.  But what if the officer has to push a few buttons on the cell phone?  Search? Well...

Last week, the 2nd District Court of Appeals (Fort Worth), held in Deaver v. State, that under the "plain view" doctrine, an officer's viewing of a child pornography video on a defendant's cell phone was not a search. 

The State asserts, in part, that the record does not provide sufficient evidence that Offier Shipp searched Deaver's phone.  We agree with the State.  A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.  If an item is in plain view, neither its observation nor its seizure involves any invasion of privacy.  An object is seized in plain view if three requirements are met.  First, law enforcement officials must lawfully be where the object can be "plainly viewed."  Second, the "incriminating character" of the object in plain view must be "immediately apparent" to the officials.  Third, the official must have the right to access the object.

How the State satisfied those 3 requirements in this case, I know not.  In this case, while the defendant was searching through his phone for a person's contact information to give to the officer, the officer snatched his phone out of his hands.  Yes, the defendant was about to voluntarily give the officer his phone, but by snatching the phone, the officer may have jumped the gun.  Requirement 1 - Lawful vantage point?  Perhaps, but I would argue no. 

Next, as the computer experts pointed out in the case, "there is no pornography on the first frame of the video at issue, so the pornographic nature of the video would not be immediately discernable if someone was just scrolling through the various videos on Deaver's phone.  In other words, to find that the video contains pornography, it must actively be played."  Requirement 2 - Immdeiately apparent? No way! (Unless, of course, you engage in the kind of mental gymnastics performed by the court and say that perhaps the defendant began playing the video (with the cop standing right there!) and when the cop retrieved the phone, the porn was on the screen.)

Lastly, the defendant only gave the officer access (arguable access, that is) to the phone so that he could retrieve a phone number listed therein - not to access any other media.  Requirement 3 - Right to access?  Nope.

But it really doesn't matter what I say, as I am not an elected appellate justice - here's what the Court held:

If Officer Shipp was initially justified in gaining control over Deaver’s phone forsafety reasons (Deaver has not argued that he was not), and if Officer Shippimmediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion tosuppress would not have succeeded because the video was in plain view, no invasion of Deaver’s privacy could be shown, and no search could have therefore occurred.  Because Deaver therefore cannot demonstrate, on this ambiguous record, that his counsel’s motion to suppress would have been successful, we overrule his sole issue of ineffective assistance.

Caveat:  This was an IAC case, so the standard of review was much more deferential to upholding the search than it would have been had the trial defense counsel moved to suppress the evidence during trial.