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.

Lane Ends, Merge Left

Back in 2010, I posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a "lane merge" is a "turn" under the Texas Transportation Code, such that it requires a driver to signal.  If a "merge" does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a "merge" was a "turn" and thus required a turn signal.  Apparently, the 12th Court did not get the CCA's hint the first time around.

In a 5-3 opinion (HERE) with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State's contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, "changing lanes" requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. ...[N]o signal is required when two lanes become one. 

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant's lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.

A Good Texas DWI Resource

As I was trawling (not trolling) the TDCAA website this week, I came across a helpful resource on Texas DWI law.  The DWI Case Law Update, written by the Tarrant County District Attorney's Office, is a comprehensive collection (a 204-page PDF file) of case law concerning DWI.  It is broken down by sub-topic in a user-friendly table of contents.  I'll be putting this one of my iPad for quick reference.  Thanks TDCAA.

“Operating” a Vehicle in the DWI Context

Under Section 49.04(a) of the Texas Penal Code, a person commits the offense of DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Emphasis added.  The Penal Code, however, does not define the term “operating.” When words are left undefined by statute, the Texas Government Code Section 311.011 tells us that those words are to be “construed according to the rules of grammar and common usage,” unless the word or phrase has some “technical or particular meaning,” in which case, the word or phrase “shall be construed accordingly.” What about the word “operating?” Is it common or technical?

In the trial of State v. Kirsch out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road.  As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated.  Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:

to exert personal effort to cause the vehicle to function.

To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions).  Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant indeed operated it.  But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make).  Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.

The 6th District Court of Appeals (Texarkana) affirmed the conviction.

The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:

Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.

The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free," the CCA held, "to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.

There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.

A Harmful “Synergistic Effect” Instruction

You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone.

That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction.  It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications).  The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs.  See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004).

Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas).  In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test.  However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle.  Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury.  In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted.

On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone.  The 5th COA further held that the erred was harmful.  On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless).

The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol.  The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains:

should follow the guidelines of Almanza, assaying the degree of harm ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’

The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory.

Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information.  The theory must be supported by the evidence, rather than a mere hunch.

Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case.  She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette.

Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis.

Judge Keasler also dissent, but without a written opinion.

"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.

CCA Upholds DWI Search Warrant, Overturns Lower Courts

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed. See our prior coverage HERE.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

Trial With Only Five Jurors

Can a defendant waive his constitutional right to trial by six jurors (in County Court)?

The United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years, a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Conchran dissented without opinion.

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.”

"Community Caretaker" Makes Unlawful DWI Arrest

In Cherokee County, Texas, a small white pickup truck "was not seen violating any traffic law or exhibiting any signs that the driver was intoxicated or otherwise in distress, when [a police officer] saw, followed, and ultimately stopped it."  According to the officer, he stopped the vehicle "to check his current state, his welfare, [and] to make sure he is okay."  After all, he had recently received a call reporting an elderly driver passed out behind the wheel of a similar vehicle in a neighboring part of town.  In checking the driver's welfare, wouldn't you know it, the officer observed signs of intoxication and arrested the driver.

At the driver's subsequent trial for DWI, he moved to suppress the evidence obtained at the stop, complaining that the officer lacked probable cause or reasonable suspicion.  As the 6th District Court of Appeals (Texarkana) explained, however, probable cause may not have been required if the officer was exercising a "community caretaker" function.

In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed.  As part of an officer’s duty to serve and protect, an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  This exception to the warrant requirement has narrow applicability.  The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement.

The problem in this case, as the Court points out, was that the driver did not objectively appear to be in distress, nor did he objectively appear to pose a danger to himself or others.  Accordingly, the Court held that the narrow community caretaker exception did not justify the officer's stop and thus, the driver's Fourth Amendment rights were violated.

See Travis v. State

Trial Judge Must Make an Informed Decision

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

However, a majority of the 4th District Court of Appeals (San Antonio) reversed and remanded the case for a new sentencing hearing because the trial judge failed to order a presentence investigation report.  

Article 42.12, section 9, of the Texas Code Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or 'if the judge finds there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.'

The trial judge having failed to order a report or explain on the record why a report was unnecessary, the Court found harmful error.  The Court explained that:

because there was no presentence investigation report, the trial judge was not provided with required 'proposed client supervision plan.'  Without a 'proposed client supervision plan' outlining the programs and sanctions available through the community supervision and corrections department to [the defendant], the trial judge did not have before her all the information required by statute for her consideration before imposing sentence.

While, in my opinion, it is doubtful that Gutierrez' new sentencing will be any less than the original sentence of 4 months in jail and a $1,500 fine, he will get his chance.  I think 4 months and $1,500 is pretty light for a 4th DWI.

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.”

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

A recent Texas Court of Criminal Appeals opinion assures us that the CCA considers no issue too-small in the Texas criminal law landscape.  I did somewhat of a double-take when I read the issue presented in Mahaffey v. State:  

Is merging without using a signal a traffic violation under the Texas Transportation Code?

Why does that matter, you ask?  Because Appellant was arrested for DWI after an officer pulled him over for failing to signal when he merged into the left lane as his traffic lane was ending.  If a "merge" does not, in fact, require a signal, then there was no legal basis for the stop and the evidence of DWI should have been suppressed at the trial court.

The lower court (12th Court - Tyler) held that a "merge" is a "turn" and as such, requires a signal under the Texas Transportation Code section 545.103.  The CCA disagreed, stating:

the Tyler court’s holding in this case leads to an absurd result: a requirement that a driver must signal any movement that is not a perfectly straight trajectory. 

Nowhere does the [Texas Driver's Handbook] say that a driver must signal when a lane merges into another lane.

Accordingly, the CCA remanded the case back to the 12th Court to determing whether a "merge" (not a turn) requires a signal.

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.

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

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

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

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

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

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

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

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

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

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

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

Reasonable Suspicion Standard Exists in Name Only in San Antonio

Ask any police officer in San Antonio and I'm sure he can tell you that in order to initiate an investigatory detention, he/she must have "Reasonable Suspicion" that a person is, has been, or will soon be engaged in criminal activity.  Great, at least we know that a standard exists.  The problem, however, is the application of the legal standard to the facts of a particular case.  The problem is that "Reasonable Suspicion" is a conclusory title slapped onto any fact scenario law enforcement happens to encounter.  Well, Justice Rebecca Simmons of the 4th District Court of Appeals (San Antonio) has had enough (at least in one case she did)!

Never has this court upheld an investigative stop based on such a paucity of facts.

These the unflinching words of Justice Simmons' dissent to the Court's denial of a request for an en banc consideration in Martinez v. State.  Chief Justice Stone joined the dissent, which explained:

As a matter of law, the totality of the circumstances did not provide reasonable suspicion for the investigative stop of Martinez. ...I also believe the opinion conflicts with this court’s prior opinion in State v. Simmang, 945 S.W.2d 219 (Tex. App.—San Antonio 1997, no pet.).

Well, let's see.  What exactly was it about this reasonable suspicion stop that so ruffled the feathers of these two jurists?  As a starting point, you must remember that to support an investigative detention, the officer must point to "specific articulable facts, which, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaging in criminal activity."  Texas case law requires that these facts amount to "more than a mere hunch or suspicion."

Here's how the officer explained it at trial:

[based on an anonymous tip] dispatch put out a call that a vehicle had stopped and someone supposedly put some bicycles in the back of a pickup truck in a general area of town.  The caller was simply a passerby.  All I got from the dispatch was a vehicle description (blue Ford pickup) and a male driving the vehicle.  Dispatch repeated twice that the pickup was blue.

First of all, is it illegal to put bicycles in the back of a pickup?  Perhaps, but I put my bicycle in the back of my pickup several times a week. For the sake of argument, let's just assume that this activity is evidence of larceny.  Ok - Got it.  A blue Ford pickup, with some bicycles in the back, driven by a male.  But who did the officer stop? 

He stopped the only Ford pickup he could find in that area of town.  He stopped a male driving a GREEN pickup.  Add to that, the pickup didn't even have any bicycles in it!  And what does this investigatory detention (for a possible larceny, mind you) yield...a DWI conviction.  We can expect that the officer believes he had "reasonable suspicion" initiate the stop (an officer always thinks he has reasonable suspicion), but, as the dissent points out:

Surprisingly, this court concludes [the officer] had reasonable suspicion to stop Martinez...

I must have been traveling this winter when this opinion was released by the Court.  Thankfully, these justices highlighted the Court's questionable reasoning for us.  We'll be sure to keep our eye on this case to see what the CCA has to say.  Even our conservative and prosecution-friendly CCA might reverse this one!

No Current Confinement Necessary: Habeas Relief Available for Collateral Consequences

On May 26, 2010, the Texas Court of Criminal Appeals released its opinion in Ex parte Harrington, which has the potential to substantially increase habeas corpus litigation in Texas.  In Harrington, the Court was faced with the question:

[W]hether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

 The basis for applicant's petition was that due to his confinement for felony DWI, he suffered collateral consequences, namely, he lost his long-time job with the Texas Workforce Commission.  The applicant argued that but for his counsel's ineffective assistance in failing to investigate his prior DWI conviction, he would not have plead guilty for felony DWI and, in turn, would not have been sentenced to confinement.

In 1987, the CCA answered this question in the negative, holding:

an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07.  [U]nless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.

However, in 1995, the Code of Criminal Procedure was amended.

Article 11.07, § 3(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.

Holding that the Court indeed has jurisdiction to entertain Applicant's petition regarding relief from the collateral consequences of his confinement, the Court granted relief and remanded the case back to the trial court for resentencing as a Class A misdemeanor.

Who Says Plea Negotiations Aren't Admissible?

Bowley v. State (CCA Opinion HERE)

It was a DWI case (enhanced to felony-level by 2 previous DWI convictions).  The defendant took the stand and explained to the jury that he pled guilty to the 2 previous cases, because he was actually guilty.  Then, on cross-examination, this was the exchange between the defendant and the prosecutor:

Q:  Okay. [Defense counsel] said that you pled guilty to all those up there because you were; is that right?
A: Yes, sir, that is correct.
Q:  You're not pleading guilty here today because you're not guilty; is that right?
A:  Right. That is correct.
Q:  Could it be that it's because we couldn't agree on a plea agreement that you preferred?

Hmm...I seem to remember a certain rule of evidence...ah, yes, Rule 410, which prohibits the admission of pleas negotiations.  The underlying rationale behind Rule 410 is to promote "free and frank" plea negotiations.  Additionally, if we face the facts, not all defendants that plead guilty are actually guilty.  Sometimes it's just easier to plead than to risk being convicted of a greater crime or awarded a stiffer sentence.

Thankfully, the Defense counsel sprung to action:

DC: Judge, I guess I will have to object on that.  That's-
Court: Sustained.
DC:  Judge, as well, let me go ahead and ask that this Court instruct the jury not to consider that in any type of deliberation, this it's simply just not a proper area for a trial, Judge.
Court:  No instruction will be given.
DC:  Judge, I guess to finish that and perfect my objection, I will ask for a mistrial.
Court:  Denied.

The defendant was later convicted of felony DWI and was sentenced to 30 years confinement as a habitual felony offender.

On direct appeal, the 7th District Court of Appeals (Amarillo) concluded that the judge erred by not giving the instruction to disregard the prosecutor's question about the plea negotiations and reversed the conviction.  The 7th Court's reasoning was that under Rule 403, the question was "higly misleading and prejudicial" and that there was a "grave risk" that the jury would make the "common sense" inference that because the defendant has negotiated for a plea, he had committed the crime.

Yesterday, however, the Court of Criminal Appeals (in a sharply divided 5-4 decision) reversed the 7th Court's decision, stating

We hold that no instruction was required because [the defendant's] testimony opened the door to the prosecutor's question.  A party who opens the door to inadmissible evidence risks the adverse consequences of having it admitted.  It was admissible for the prosecutor to cross-examine [the defendant] by questioning the circumstances surrounding his plea in this case to establish an alternatie motive for pleading not guilty - that it was the result of failed plea negotiations.

The holding is simply shocking - especially when the trial court excluded the evidence!  Although it was not clear on the appellate record whether the trial court excluded the evidence under a Rule 403 or Rule 410 analysis, if either is within the so-called "zone of reasonable disagreement" the appellate court should have upheld the trial court's ruling excluding the evidence and required a curative instruction for the jury to disregard the question.

Perhaps Judge Price, in one of the dissenting opinions got it right:

But even if the majority were right with respect to the Rule 403 issue, it grievously errs simply to affirm the judgment of the trial court without further ado. If the court of appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was within its discretion. Because the court of appeals has never resolved this issue, the correct disposition at this juncture would be to remand the cause to the court of appeals so that it may do so. I must therefore dissent on the additional basis that the Court does not remand the cause for further proceedings in the court of appeals.  Ultimately, I rue that we ever, in our capacity as a discretionary review court, should have allowed ourselves to get embroiled in a case like this in the first place.

At least for now, the takeway from this case, is don't introduce prior guilty pleas of your client in the hope that the jury might infer that because he isn't pleading guilty to the current charge, he is actually not guilty. Wow, a lot of double negative in that sentence, but you understand what I mean.

Two other dissenting opinions were also submitted by Judges Johnson and Holcomb.

What is a "Final Conviction" for DWI Enhancement Purposes?

More specifically, can a prior judgment be "final" even though the judgment itself specifically states:

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years.

The Court of Criminal Appeals says YES, the judgment is final.

Overruling the 13th District Court of Appeals (Corpus Christie) precedent in State v. Kindred, 773 S.W.2d 766 (Tex. App.-Courpus Christi 1989, no pet.), the CCA held that the above-paragraph "does not pertain to the finality of the judgment of the conviction for enhancement purposes, but rather to the suspension of the sentence necessary to grant community supervision."  Thus, "the court of appeals erred in holding that appellant's offense was not a final conviction."

The case from which this post is derived is Gonzales v. State.  Full opinion HERE.

I realize that this issue is not terribly sexy or interesting, but I just thought I'd pass along the info in case you ever run into this situation in a felony (enhanced) DWI case.