Friday, January 29, 2010

Investigative Detention v. Arrest

Police officers remove a person from his vehicle at gunpoint, place the person on the ground, and handcuff his hands behind his back. Detention or Arrest? What follows is a short summary of this area of law, courtesy of the 7th District Court of Appeals (Amarillo).

The differences between an Investigatory Detention and an Arrest are the degrees of intrusion involved and the different legal justifications for each. The standard for distinguishing between the two is not always clear because the distinction rests on a fact-specific inquiry rather than clearly delineated criteria.

An investigative detention occurs when an officer lacks probable cause to arrest but nonetheless possesses a reasonable suspicion: that is, the officer is able to point to specific, articulable facts that, taken together with rational inferences from those facts, reasonably warrants the detention. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring, or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to criminal activity. During an investigative detention, an officer may employ the force necessary to effect the reasonable goals of the detention: investigation, maintenance of the status quo, and officer safety. An officer may conduct a limited pat-down search of the outer clothing for weapons during an investigative detention if the officer fears for his safety or that of others.

An arrest, on the other hand, is a greater restraint upon a person's freedom to leave or move. If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest. Further, in the absence of a reasonable safety concern or need to maintain the status quo, an officer's use of force to secure a suspect is typically held to constitute an arrest.

To illustrate the confusion in this area of law, look at the following list of facts and try to guess whether the court held the intrusion to be an investigative detention or an arrest:

1 - One officer approaching the driver's side of a vehicle with a rifle, while another officer approached the passenger's side of the vehicle with a gun in hand.
2 - Suspect removed from car, patted-down, and handcuffed.
3 - Suspect escorted to the patrol car and handcuffed.
4 - Car boxed-in, approached with guns drawn, suspect placed on the ground and handcuffed.
5 - Suspect handcuffed while in the backseat of the patrol car.

The answers are at the bottom of the post. Did you get them right? I didn't. The courts came down differently in these examples because of the specific fact scenarios in each. Remember, whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all the facts, as judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight.    

In some of the examples above, the officers were acting to simply protect themselves and maintain the status quo (ID), and in others they were not (Arrest). Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the number of suspects present, and the reaction of each suspect.

This post probably didn't help clarify this issue for you as it didn't for me in writing it, but it should make one thing very clear - it all depends on the facts. You need to develop that facts as much as possible in order to show that that seizure was an Arrest. Then your client will receive the due process considerations that flow from an arrest.

1. ID, 2. ID, 3. ID, 4. A, 5. A

Art and Dance at the Falls

If you are near the southeastern part of New Hampshire on February 4 from 6 to 9 pm, make sure you check out First Thursday at the Falls, a vibrant collection of the arts to make you dance and stir your soul. See them at or by going to Rollinsford, NH at the Lower Mill at Salmon Falls and on Front Street.

Wednesday, January 27, 2010

The Defendant has No Clothes!

In perusing the recently published cases of the various Texas Courts of Appeals, I came across Powell v. Texas, a case from the 9th District (Beaumont). If you are in need of a good laugh and you have a few minutes to spare, you should consider reading the full opinion HERE.  I will give you the highlights.

Powell was on trial for assaulting a prison guard. During the trial (while in the holding cell and in open court) the defendant was continually disruptive. The judge admonished Powell numerous times and ended up having to shackle both his arms and feet (there was a skirt around the table so that the jury could not see the shackles). During one of the recesses, Powell ripped his shirt off in the holding cell and use it to wipe his butt. When he returned to court, he could no longer wear his shirt because it had feces on it! The defense counsel offered to retrieve a new shirt from his car, but the judge denied the request. Powell was offered a jacket by the bailiff, but he refused to wear it. For the remainder of the trial that day, Powell sat shirtless in front of the jury, exposing his many tattoos.

On appeal (after Powell received a 65-years sentence), Powell complained that the judge erred by refusing to allow his lawyer to retrieve another shirt for him to wear and for making him endure the remainder of the day shirtless in front of the jury. Applauding the moxy of the trial judge in trying to maintain order in his court, the 9th District Court of Appeals, nonetheless held that the judge committed error by allowing the shirtless spectacle to occur. However, the Court upheld the results, concluding that the State had proven beyond a reasonable doubt that the error did not contribute to the jury's verdict.

Word to the wise: If you think that your client might possibly rip off his shirt and use it for toilet paper, bring more shirts with you to the courtroom so that you don't have to delay the trial in order to clothe your client. (More shirts could also come in handy if your client needs to use the restroom later in the day)

Tuesday, January 26, 2010

The Cool Kids Rule the Prisons too!

HERE is an interesting story about a 7th Circuit case which upheld a prison rule prohibiting inmates from playing Dungeons and Dragons. Apparently, the socially-inept can't even catch a break in prison.

Monday, January 25, 2010

Antiquities traffickers deal with ancient coins

There is much controversy today about the inclusion of ancient coins under the auspices of laws that protect archaeological objects. Some say the laws should not regulate ancient coins at all. Consider two items in the news, nevertheless, that show how ancient coins are part of the traffickers' loot.

Yahoo! News reported today via the Associate Press that Cypriot authorities rounded up antiquities traffickers in the largest case of its kind in terms of the amount. The traffickers apparently had an undisclosed buyer and planned to move the pieces for %15.5 million (US) dollars--which means the items together were likely worth even more. Among the urns, gold, and other cultural objects were ancient coins.

In another unrelated story, ancient coins were discovered when a man was arrested in the United Kingdom. UKPA reported that a "large volume of items of 'considerable antiquity' were seized at a house by officers who executed a search warrant in Barnham, near Chichester, West Sussex. Police said some of the artefacts were suspected of being stolen by "nighthawking" from an undisclosed site in the Chichester area and elsewhere recently. The items found so far include medieval and Roman coins, ivory and silver, and one gold Iron Age coin, brooches, buttons and horse equipment of similar ages."

In the same way that drug traffickers deal with quanities of of a variety of illegal drugs, antiquities traffickers deal with a variety of looted archaeological objects--including coins.

Confrontation Clause and Lab Reports???

Well I was hoping that the Supreme Court might take the opportunity in Briscoe v. Virginia to clarify its opinion from last term in Melendez-Diaz v. Massachusetts, but it passed.  Instead of articulating what exactly the confrontation clause requires of the State when offering lab reports into evidence, the Court merely stated, in a per curiam opinion,
"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."
Hopefully, the Court will seize its next opporutunity to answer the question when it hears, City of Ontario v. Quon this term, but from the looks of it, I doubt it will.  So in the wake of Crawford and Melendez-Diaz, and now Briscoe, we still don't know...
  • What parts of a lab report are "testimonial" triggering Crawford and the Sixth Amendment?
  • If a lab report is testimonial, who from the lab must testify in order to satisfy the CC?
  • Would the Supreme Court require all lab technicians who took part in operating the machinery which led to the creation of the report testify?  
  • Does it satisfy the CC if a supervisor of the lab testifies alone?
These are the burning questions with which we are left.  In fact, these are questions that many of the justices asked of the counsel in both Melendez-Diaz and Briscoe.  I guess we will have to wait while the justices figure out the answers for themselves.  Much like Crawford, the law provides more questions than answers.

Thanks to the Austin Criminal Defense Lawyer Blog for alerting me to the release of the Briscoe opinion.

Saturday, January 23, 2010

Old Masters Week at Sotheby's NY

Old Masters Week is currently going on at Sotheby's in New York. You can see the events going on at

Friday, January 22, 2010

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

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

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

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

Thursday, January 21, 2010

Fakes on the Market, Looting on the Decline...

MSN posted an insightful piece of interest to collectors, dealers, and archaeologists. It is reported that the production of fakes is easier than looting authentic archaeoligical objects, thereby reducing looting from archaeological sites.

Tuesday, January 19, 2010
Ebay & Looting

Peruvian archaeology has found an unusual ally in the battle against looting in the internet and websites such as eBay. This is according to Charles Stanish, a UCLA archaeologist, writing in the June 2009 issue of Archaeology. Stanish has excavated for 25 years at fragile archaeological sites in Peru. It was feared that online auction sites would increase looting as the looter could sell directly to the buyer eliminating costly middlemen. In fact, online auction websites have actually helped reduce looting as the average looter or craftsman can now make more money selling cheap fakes online rather than spend weeks digging for the real thing and running the risk of not finding anything. It is less costly to transport a fake and the risk of arrest is removed. Moreover, workshops churning out cheap fakes and replicas can also produce elaborately detailed fakes which can be so authentic even experts are deceived. Locals can use original ancient moulds, often found during excavations but of no real value themselves, to create exact replicas using clay from original sources and local minerals to make paint fordecorating the pottery. The only way to know for sure if a piece is genuine is through thermo-luminescence dating which calculates when the pottery has been fired. But this is expensive for the buyer and many sellers will not offer refunds on pottery that has undergone “destructive” analysis. Ten years ago the ratio of real to fake Peruvian artefacts for sale online was roughly 50:50. It is now thought that only 5% of items are authentic, 30% are fakes and the rest are too difficult to judge from online photographs. This turnaround emphasises how paradoxically online auction sites have helped to combat the trade in illicit antiquities. Also, its not just Peruvian fakes that are flooding the illicit antiquities online market; Chinese, Bulgarian, Egyptian and Mexican workshops are also producing fakes at a frenetic pace.

Blue Shield Statement on Haiti

The Blue Shield has posted a statement concerning the tragedy in Haiti

Haiti. Blue Shield Statement. 14th January 2010

The Blue Shield expresses its sorrow and solidarity with the population of Haiti for the loss of lives and the destructions caused by the earthquake which occurred on 12th January. Culture is a basic need, and cultural heritage a symbolic necessity that gives meaning to human lives connecting past, present and future. Cultural heritage is a reference full of values helping to restore a sense of normality and enabling people to move forward. Cultural Heritage is fundamental in rebuilding the identity, the dignity and the hope of the communities after a catastrophe. The Blue Shield Mission is “to work to protect the world’s cultural heritage threatened by armed conflict, natural and man‐made disasters”. While it appreciates that the immediate priority is to find the missing, and to help the injured and homeless, it places the expertise and network of its member organisations at the disposal of their Haitian colleagues to support their work in assessing the damage to th
e cultural heritage of their countries including libraries, archives, museums and monuments and sites, and subsequent recovery, restoration and repair measures.

The Blue Shield calls on the international community, responsible authorities and local population to give the fullest possible support to the efforts, official and voluntary, underway to protect/rescue the rich and unique heritage of Haiti. The member organisations of the Blue Shield are currently liaising with Haitian colleagues, to obtain further information on both the situation in the area and on the possible needs and types of help required so as to mobilise our networks accordingly. A more complete report on damages, needs and actions will be published subsequently, to facilitate coordination.

The Blue Shield
The Blue Shield is the protective emblem of the 1954 Hague Convention which is the basic international treaty formulating rules to protect cultural heritage during armed conflicts. The Blue Shield network consists of organisations dealing with museums, archives, audiovisual supports, libraries, monuments and sites. The International Committee of the Blue Shield (ICBS), founded in 1996, comprises representatives of the five Non‐Governmental Organisations (NGOs) working in this field:
- The International Council on Archives (,
- The International Council of Museums (,
- The International Council on Monuments and Sites (, and
- The International Federation of Library Associations and Institutions (
- The Co‐ordinating Council of Audiovisual Archives Associations (

National Blue Shield Committees have been founded in a number of countries (18 established and 18 under construction). The Association of National Committees of the Blue Shield (ANCBS), founded in December 2008, will coordinate and strengthen international efforts to protect cultural property at risk of destruction in armed conflicts or natural disasters. The ANCBS has its headquarters in The Hague. Contact Information:

Wednesday, January 20, 2010

No Mercy for Child Sexual Assault Cases

The First District Court of Appeals (Houston) recently issued an opinion in Atkinson v. State, affirming the conviction and sentence of a child sex offender. Personally, I have nothing but utter disdain for child sex offenders and believe that they deserve to serve every second of the sentence that they receive. Apparently, the 1st District feels the same way.

I will spare you all of the intimate facts of the case, because you can read about them HERE if you like. All you really need to know is that Appellant had sex with a 6 year-old little girl. There was only one sexual encounter between Appellant and the girl, and during the encounter, Appellant "rubbed" the girl between her legs and then proceeded to have sex with her. Appellant was convicted of both: 1) Indecency with a Child by "Touching," and 2) Aggravated Sexual Assault, arising from a sexual encounter with a 6 year-old girl. Having never objected to the charges in the indictment at trial, Appellant argued for the first time on appeal that the convictions of both the greater charge and the lesser charge violated 5th Amendment's prohibition on Double Jeopardy. Specifically, the despicable appellant argued that the indecency charge was subsumed within the aggravated sexual assault charge because the conduct was part of one disgusting transaction.

The Law:  A conviction of both the greater and a lesser-included offense arising out of the same act violates double jeopardy. Hutchins v. State, 992 S.W.2d 629 (Tex.App-Austin 1999, pet. Ref'd, untimely filed). The Texas Court of Criminal Appeals held, in Patterson v. State that "conviction for a sexual offense against a child bars conviction for conduct that, on the facts of case, is demonstrably part of the commission of the greater offense." 152 S.W.3d 88 (Tex. Crim. App 2004). Case over, a victory for the Appellant, right? WRONG!

The Court held that because it is not clear from the record whether Appellant "rubbed" the victim with his finger or penis, then the constitutional error is not "clearly apparent from the face of the record," and therefore he did not preserve his appeal.

I am happy to see the Court resort to nit-picking and semantics in order to uphold this convictions (I'm not being facetious). I hope Mr. Atkinson's 20 years in TDC are miserable. As a practical matter, even if the conviction of the lesser offense had been set aside, he would still be serving 20 years for the greater offense. I hate to say, I think the First District probably got this one wrong - But in a way I can appreciate.

Tuesday, January 19, 2010

The Lender Collector

NPR has an insightful story on a recent trend: lending an art collection.

Monday, January 18, 2010

Art thief sentenced for stealing works by Chagall and Picasso

Last week a federal district court sentenced Marcus Patmon, 38, to 23 months in prison after he pled guilty to mail fraud, attempted wire fraud, and the interstate transport of stolen goods. See for details.

Patmon stole a Chagall lithograph and a Picasso etching from Galerie Lareuse in Washington, DC in 2007. He sold them for approximately $63,000. He also stole two other Picasso etchings from Gallery Biba in Palm Beach, FL in 2008. State authorities prosecuted Patmon for the Florida theft.

Thursday, January 14, 2010

Fakes and Forgeries

The Associated Press reported in today's NY Times that Italian authorities last year recovered thousands of looted art and antiquities valued at close to $240 million US dollars. The story said: "Police figures show the number of illegal archaeological excavations discovered in 2009 decreased dramatically, from 238 in 2008 to just 58 in 2009. But at the same time, the number of people charged with falsifying artwork rose more than 400 percent."

The fact is that forged art exists in the marketplace, and this newspaper report serves as a caution to stay alert. Authenticating artwork is an essential component to ethical collecting. One should take time to ensure that a piece is not just looted or illegally exported, but that it is genuine.

Waco Court of Appeals Gets One Wrong!

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

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

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

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

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

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:
A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   
The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
  1. the witness must have firsthand knowledge of the event,
  2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
  3. the witness must lack a present recollection of the event, and
  4. the witness must vouch for the accuracy of the written memorandum.

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

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

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

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

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

Legal Tools for Artists

The Carving Studio in Vermont is holding a workshop in July. It is titled Legal Tools for Artists. Go to the link at

Tuesday, January 12, 2010

4th Amendment Exception - Protection from Imminent Injury

Supreme Court 4th Amendment Case

In Michigan v. Fisher, 130 S. Ct. 546, December 7, 2009, the U.S. Supreme Court held that law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.

The police officers in Fisher were responding to a report of a disturbance. When they arrived on the scene they encountered a tumultuous situation in the house--and they also found signs of a recent injury (drops of blood on the car and the walkway), perhaps from a car accident, outside. The officers could see violent behavior inside. The officers saw defendant screaming and throwing things. Although the man specifically denied the officers access and told them to go get a warrant, the Court held that it is objectively reasonable to believe that defendant's projectiles might have a human target (perhaps a spouse or a child), or that defendant would hurt himself in the course of his rage. The officer's entry was reasonable under the Fourth Amendment. See also Brigham City v. Stuart, 547 U. S. 398 (2006).

This reasoning, while completely justifiable in theory, could really lead down a really slippery slope in practicality. Just think how easy it will be for officers to simply barge into a home under the "protection from imminent injury" exception because they "heard a commotion." While that's not exactly what happened here, it could be where we end up soon.

Sunday, January 10, 2010

Duty to Make Specific Objections

Admittedly, this topic is an elementary one.  But I wouldn't be writing about it if it were not a commonly seen appellate issue (or waived appellate issue).  Texas Rule of Appellate Procedure 33.1 provides:

33.1.  Preservation; How Shown
(a)    In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
     (1)     the complaint was made to the trial court by a timely request, objection, or motion that:
          (A)   stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
          (B)   complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
     (2)     the trial court:
          (A)   ruled on the request, objection, or motion, either expressly or implicitly; or
          (B)   refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
With that rule in mind, I do not understand why trial counsel continue to make general objections without stating the specific grounds for the objection.  Maybe in the counsel's mind the specific grounds of the objection "were apparent from the context," but you owe a duty to your client to preserve error for appeal.  Because, as we know, if you fail to make a specific objection and/or fail to obtain a ruling from the trial court, the issue will be deemed "waived" by the appellate courts.  Further, an ineffective assistance of counsel claim will usually not stand because the simple making of the general objection will be enough to clear that hurdle.

Anyway, maybe this is more of a rant than a scholarly post, but take it for what it is.


Thursday, January 7, 2010

Expunctions and Non-Disclosures: A Primer

To say that the legal history of Expunctions and Non-Disclosures is complicated is an understatement. These laws have undergone numerous changes throughout their lives and they continue to evolve to this day. One of the most important keys to understanding Expunctions and Non-Disclosures is to understand the underlying issues and basic concepts that are key to these remedies. 


The first thing to keep in mind about expunctions is that, despite their criminal nature, these are civil law remedies. The procedures involving expunctions and non-disclosures should be viewed in that light.

The most practical (and maybe the most important) thing to keep in mind is that a person who meets the requirements and is entitled to an expunction under Tex. Code Crim. Proc. Ann. art. 55.01 will have all records regarding that particular arrest destroyed regardless of equity or discretion on the part of the court or the prosecutor. Article 55.01 eliminates the prosecutorial discretion and judicial equity that so many are familiar with when dealing in criminal law. The expunction statute requires “strict compliance” and the courts have no equitable power to expunge criminal records. Pitts v. State, 113 S.W.3d 393, 2003 Tex. App. LEXIS 3766 (Tex. App. Houston 1st Dist. 2003)Expunctions do not rely on equity or discretion. A petitioner is either entitled to the expunction or not.

Another key understanding expunctions is to remember that expunctions concern arrests – not convictions. Generally, a person who has a legitimate conviction will not be eligible for an expunction (unless the conviction was overturned on appeal or the petitioner has been pardoned). The court in Harris Cty. Dist. Att. v. D.W.B said, “ The statute was not intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge arrest and court records concerning that offense. Merely completing the terms of deferred adjudication and obtaining a dismissal does not entitle a petitioner to expunge criminal records.” Many attorneys not familiar with expunctions think that this process exists as a giant erasure to wipe client’s criminal records clean. The reality is that there are limited circumstances in which a person will be entitled to an expunction of the arrest that is on their record and not a conviction.

Procedurally, the Petition must be filed in a District Court. The Petition for Expunction must track the language of 55.01 to the extent that it applies to each individual case. 55.01 has several subparts and an attorney must make sure that the situation fits one of these scenarios (again, it’s “strict compliance”). Otherwise, the petition will be denied by the court and opposed by the district attorney’s office. 

One of the biggest issues that some attorney’s overlook is the fact that the statute of limitations must have run before you file your petition for expunction. (For both Felonies, and Misdemeanors, State v. Beam, ___S.W.3d___ (Tex. 2007) (No. 06-0974; 6-1-07)). If the statute has not run, then the petition will be denied.  


The statute covering non-disclosures is different from the statute covering expunctions. Although a different process, non-disclosures are related to expunctions in that they deal with a person’s criminal record. A non-disclosure can be thought of in terms of a lesser degree of expunction. A person who meets the requirements and is entitled to a non-disclosure under Tex. Gov’t Code 411.081 will have all records pertaining to that particular arrest prevented from disclosure to the public. The difference of outcomes between an expunction and a non-disclosure is that under an Order for Non-Disclosure, a person’s information will still be available to law enforcement agencies and certain non-law enforcement State agencies.

The main thing to remember about non-disclosures is that they are only used for persons receiving deferred adjudication. That is the first and primary prerequisite before the avenue for a non-disclosure can even be pursued.

Procedurally, Non-Disclosures are filed in the court where the offense was adjudicated (could be municipal, county or district court). Like expunctions, a petition for non-disclosure must track the language of the statute and must specifically state how the petitioner is qualified under that section.


There are numerous other nuances to these statutes, but before diving into the process, it is imperative to keep in mind these general principals when filing petitions for expunctions and non-disclosures. More to come on those nuances…stay tuned!

Saturday, January 2, 2010

What if Your Objection Contrasts with Well-established Caselaw?

What should you do if your objection to evidence clearly contrasts with well-established caselaw?  Should you make your objection anyway, knowing full-well that it goes against current precedent?  If so, do you couch your objection in policy or fairness terms, hoping that the court will simply decide to depart from the current state of the law?  Or do you sit back and make no objection at all?

According to the 4th Court of Appeals (San Antonio), you must make any and all objections to the admission of evidence at the trial court (whether the objection follows or contrasts with current precedent).  This is not a novel concept as the general rule is well-established, but it becomes much more interesting when you consider a case like Bishop v. State, 04-08-00693-CR. (Sorry link down, will try to post later).

In Bishop, the defendant did not object at trial to the admission of evidence which was seized from his glove compartment as a search incident to arrest.  At the time of the search, the defendant was in custody in the backseat of a patrol car and could not gain access to his vehicle.  The defendant's counsel did not object at trial because this type of evidence (that seized from a glove compartment as a search incident to arrest) is routinely admitted under the Supreme Court holding in New York v. Belton, 453 U.S. 454 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest) and the Texas Court of Criminal Appeals' holding in State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999).  As a result the defendant was convicted at trial.

Between the time of the conviction and appeal, the Supreme Court issued its opinion in U.S. v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest  to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Based on this new caselaw, the defendant argued (for the first time) on appeal that the seach of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car.

Rather than recognize the blatant unreasonable search, the 4th Court of Appeals simply punted the issued on procedural grounds by holding that the issue cannot be raised for the first time on appeal.  So in essence, what the court is saying is that litigants need to make any and all objections at trial even though they may conflict with well-established caselaw.  I would put in the disclaimer that you probably should not make frivolous objections, but if you have an honest, conscientious objection to evidence, even if only based on policy or fairness, make it!