Monday, May 31, 2010

Nothing New in Ineffective Assistance Case

Sorry for the delay in posting.  There have been several published opinions about which I have yet to post, but I've been out of pocket for the last few days.  I'll do my best to catch up.

HERE's a case from the 1st District Court of Appeals (Houston) that was issued on May 20th.  In Gavin v. State, the court considered whether Appellant was provided ineffective assistance of counsel.  As in any ineffective assistance opinion, the Court discussed the Supreme Court standard as articulated in Strickland v. Washington.  I have to say, I'm not so sure why this opinion was designated for publication (Gavin, that is, not Strickland).  Most published opinions offer some new analysis on criminal law issues - not so in this case - old law and nothing really interesting about the facts.  Below is an excerpt from the Court's opinion - I wouldn't waste my time reading any more of this opinion.
     The standard of review for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). To prevail, Gavin must first show that his counsel‘s performance was deficient.  Specifically, appellant must prove, by a preponderance of the evidence, that his counsel‘s representation fell below the objective standard of professional norms.  Second, appellant must show that this deficient performance prejudiced his defense, meaning that Gavin must show a reasonable probability that, but for his counsel‘s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is one sufficient to undermine confidence in the outcome.  Thus, the benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  
     There is a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy.  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  When determining the validity of an ineffective-assistance-of-counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  The record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance-of-counsel claim.  Based on such a record, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  When the record is silent as to trial counsel‘s strategy, we will not conclude that defense counsel‘s assistance was ineffective unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.

Wednesday, May 26, 2010

Looted Cultural Objects Recovered in Iraq

Radio Free Europe/Radio Liberty today reports that Iraqi authorities seized ten ancient gold coins along with two paintings during a sting operation that broke up an antiquities smuggling ring.

No Immunity for Child Protection Vigilantes

In classic western movies, we praise the vigilante who takes the law into his own hands.  While this may be true for the big screen - not so for Texas defendants Larry Scroggs and Alana Gariepy.

After realizing that a bottle of Oxycontin had been taken from their home, Scroggs and Gariepy broke into the home of Monique Graves as they believed she had stolen it.  Graves was pregnant and nearing the end of her term.  While Scroggs stood by the door, Gariepy pushed Graves onto the bed, grabbed her by the hair, and began slapping her.  Gariepy then escorted Graves outside, grabbed her by the throat and forced her into the backseat of Scroggs' car.  Scroggs then pointed a gun toward the backseat where Graves was seated.

In their subsequent joint prosecution for, inter alia, aggravated kidnapping and burglary of a habitation, Scroggs and Gariepy raised a creative defense:
[They] argue that Graves was “endangering and abusing or neglecting her unborn child” by consuming Oxycontin while pregnant. Rather than immediately report this belief to CPS or to a law enforcement agency, they decided to compel a blood test of Graves and then decide whether to report abuse or neglect. According to appellants, Texas Family Code § 261.1066 grants them immunity from the conduct giving rise to the indicted offenses because they were reporting and assisting in the investigation of a report of alleged child abuse or neglect.
While the Court may have granted style points for this argument, it held that "Appellants' contentions are without merit."  The Court further stated:
     Appellants’ assertions of immunity are defeated by the plain language of the statutes to which they refer.8 Reports of suspected child abuse or neglect under subchapter B of chapter 261 of the Family Code are made to law enforcement or other designated state agencies. See Tex. Fam. Code Ann. § 261.101(a) (Vernon 2008) (requiring immediate report “as provided by this subchapter”); § 261.103 (with exceptions not relevant here, “a report shall be made to” listed agencies).  Investigations of such reports, under subchapter D of chapter 261, are conducted by designated state agencies. See Tex. Fam. Code Ann. § 261.301(a) (Vernon 2008) (requiring investigation of reports by agency with assistance from law enforcement).  
     Scroggs asserts a “report” was made when another person, apparently Gariepy, related facts to him creating in his mind a suspicion of abuse or neglect. Thus appellants’ subsequent conduct toward Graves was an “investigation” of the report of Gariepy. But, as noted, a report under chapter 261 is made to an agency designated by § 261.103, not to a private individual. The investigation of a report under chapter 261 follows the report, it does not precede the report. And reports are investigated under chapter 261 by agencies, not private individuals.
Good try folks.  Some fancy "lawyering" no doubt, but the Court is not on board (nor is the law).

See the full opinion in Scroggs/Gariepy v. State, HERE.

Tuesday, May 25, 2010

Voir Dire, Miranda, and Interrogations

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

To Preserve Error During Voir Dire Your Must Strike the Complained-of VenireMember -
To preserve error on a trial court’s denial of a challenge for cause, an appellant must take the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.  Because appellant did not use a peremptory strike on Northcutt, appellant failed to preserve error on his first issue.
Miranda Waivers Need Not Be Express to be Effective -
However, appellant argued that the statement was inadmissible because he did not expressly waive his right to counsel.  Neither a written nor an oral express waiver is required to support a finding that an accused waived his Miranda rights.  A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.  However, a waiver need not assume a particular form, and in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.”  The question is not whether an accused “explicitly” waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily.  Whether an accused waived his Miranda rights is determined from the totality of the circumstances.
A Suspect's Invocation of his Constitutional Right to Remain Silent, however, Must be Express -
A police officer need not stop questioning a suspect unless the suspect’s invocation of rights is unambiguous. The officer is not required to clarify ambiguous remarks.

Monday, May 24, 2010

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

Last week, in State v. Priddy, the 2nd District Court of Appeals (Fort Worth), explained:
The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens: arrests, investigative detentions, and encounters.  Unlike an investigative detention or an arrest - each a seizure for Fourth Amendment purposes - an encounter is a consensual interaction, which the citizen may terminate at any time.
In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver's license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

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

Here's what the Court had to say about "encounters:"
So long as the citizen remains free to disregard the officer's questions and go about his or her business, the encounter is consensual and merits no further constutional analysis.
Are you telling me that this woman could have simply waived off when the office approached her vehicle?  She could have simply refused to answer questions - refused to cooperate - and everything would be fine!?  I seriously doubt it.  I submit that if she had refused to cooperate, the officer would have used that fact (and the court would have ratified the decision) as reasonable suspicion to further detain the woman to investigate.  In my view, there was absolutely no way she could have gotten around talking to the officer.  None.

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

Two Means of Committing a Single Offense

Robert Alan Young was charged with failing to comply with Texas's Sex Offender Registration requirements (see chap. 62 of Tex. Code Crim. Proc.) by failing to report his change of address either 7 days before his intended move or 7 days after his move was completed.  By so charging, the State was able to gain a conviction so long as the jury could agree that either of the 2 theories was established beyond a reasonable doubt.  After his conviction, Young argued on appeal that by charging the offense in the disjunctive, the State violated his right to a unanimous jury verdict. (I tend to agree.)

Think about.  What if half of the jurors believed that Young violated with the registration requirements by failing to report his change of address 7 days prior to his move, while the other half disagreed and believed that, rather, he failed to report his move within 7 days after it was effected?  It seems we would not have a uniamous verdict under either theory.  Oh, but that is not how it works (says the 3rd District Court of Appeals - Austin).

In Young v. State, the Court explained:
The single offense described by both article 62.055 and by the jury charge is the offense of failing to report a change of address.  This offense can be violated by failing to report the change in advance, aftewards, or both.  Those variations are evidentiary, not separate and dstinct elements of an offense.  Here, the statutory verb defining the criminal act is "report."  Thus, in this case, it is the act of reporting - or the failure to do so - upon which all jurors must agree.

Friday, May 21, 2010

"That's Not a Knife...This is a Knife"

Made famous by Paul Hogan in Crocodile Dundee.

Similarly, the 9th District Court of Appeals (Beaumont) distinguished a knife from a knife in Alvarado v. State, holding:
[A] kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or serious bodily injury.
The problem, argued Appellant, is that the jury was not informed of such.  Rather, the trial court instructed the jury, under Section 1.07(a)(17)(A), that
Deadly weapon means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.
Appellant was convicted (obviously - he wouldn't be an Appellant if were aquitted) of aggravated assault with a deadly weapon.  On appeal, he challenged the faulty jury instruction, arguing that it resulted in "egregious harm."  (Becuase he failed to object to the instruction at trial, the error must have resulted in "egregrious harm" for appellant to be entitled to any relief).

Noting the error, the Court did not find egregious harm, stating:
Alvarado contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, Alvarado presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory.
In other words, had his trial defense counsel be savvy enough to spot the "kitchen-knife-is-not-a-deadly-weapon" issue at trial, Appellant may have had himself a case.

Takeaway:  Not all knives are deadly weapons!

Thursday, May 20, 2010

Cultural Heritage Lawyer - Ricardo St. Hilaire: Major Art Theft in Paris

Cultural Heritage Lawyer - Ricardo St. Hilaire: Major Art Theft in Paris

An Affidavit that Passes the Smell Test and a Trash Can that Doesn't

Published CCA case: Flores v. State

It all started with an anonymous tip from an informant who stated that he/she had once seen Appellant and his girlfriend in possession of cocaine inside a house in San Marcos. Following up, the police officers search rummaged through the trash outside the house and found an empty package of rolling papers and a baggy that field tested positive for marijuana. Based of this (and the officers' experience in narcotics), the officers executed a probable cause affidavit in support of a warrant to search Appellant's house. The magistrate issued the warrant and officer subsequently found small quantities of marijuana and cocaine inside the home. After losing his motion to suppress the evidence, the jury convicted Appellant and awarded him 12 years confinement.

The 3rd District Court of Appeals (Austin) affirmed the denial of the motion to suppress, holding that while the informant's tip alone did not create probable cause, the two "trash runs," provided a substantial basis for concluding that probable cause existed.

On appellant's petition for discretionary review, the Texas Court of Criminal Appeals, upheld the decision of the lower courts and affirmed the conviction. Looking at the aggregate of the evidence contained in the probable cause affidavit in a non-technical sense, the court reasoned:
The cornerstone of the Fourth Amendment is that a magistrate may not issue a search warrant without first finding “probable cause” that a particular item will be found at a particular location. Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial chance” that contraband or evidence of a crime will be found at the specified location.  Probable cause for a search warrant does not require that, more likely than not, the item or items in question will be found at the specified location.  In his determination of whether probable cause exists, the magistrate may interpret the probable cause affidavit in a non-technical, common-sense manner and he may draw reasonable inferences from it.
Using this reasoning, the court went on to list the reasons why the affidavit in this case was sufficient.

Judge Meyers was the lone dissenter, stating:
Finding marijuana stems, seeds, and residue in the trash does not provide probable cause to search the adjacent house for drugs. While remnants of drugs in the trash may indicate that someone possessed drugs in the past, it does not show current possession of drugs and certainly is not an indicator that there will be drugs in the house. Drug residue in the trash is equivalent to someone saying “I used to do drugs,” which may show prior possession, but does not provide probable cause to arrest the person or search their home.  If someone is found with drugs in their car and they park their car in a garage attached to their house, that does not give probable cause to search the house for more drugs.  Even if the drug residue in the trash did provide probable cause to arrest for possession, that still doesn’t give probable cause to search the house for drugs. There must be articulable facts sufficient to believe that there are drugs in the house in order to get a warrant to search the house, and drug residue in a trash can doesn’t rise to that level.
Takeaway - Once your trash is on the curb, it is no longer yours.  Don't put anything in your trash that could land you in jail for 12 years. 

Nancy Reagan Takeaway:  Say NO to Drugs!

Major Art Theft in Paris

Several paintings were discovered stolen from the Paris Museum of Modern Art during the morning of May 20, 2010. They are of inestimable cultural and monetary value.

When a major theft such as this one occurs, it is reasonable for investigators to presume that the crime is part of a broader plan. For instance, paintings can be used as collateral for weapons purchases or as payment for sizeable drug buys. Because it is more portable and discreet to carry a canvas worth millions through an airport rather than carrying the equivalent in cash, valuable artwork can be used to move large amounts of cash without being detected. It is also reasonable for the police to assume, in the first instance, that information or assistance may have been provided by someone on the inside of the institution. As evidence develops, the police can rule in or rule out these suspicions.

I have included a list below of the stolen paintings, and links to their images on the web. If you spot any of these artworks or have any information related to the theft, you can contact your local INTERPOL central bureau. In the United States you can report any information to the FBI via the internet at

1. "Pigeon with the Peas" by Pablo Picasso

2. "Pastoral" by Henri Matisse

3. "Olive Tree near Estaque" by Georges Braque

4. "Woman with a Fan" by Amedeo Modigliani

5. "Still Life with Chandeliers" by Fernand Leger
no image found

Wednesday, May 19, 2010

No More Discretion for Published Cases

So, for the past few months, I've been sorting through all of the Texas criminal appellate decisions as they are released to determine, first, which cases are designated for publication, and, second, whether those published cases are worth writing about.  From now on, I'm taking away my own discretion.  I will simply post about every published criminal case, regardless of the level of intrigue I believe the case possesses (or doesn't).  Of course, those cases that I deem interesting will receive a much broader coverage, and those other cases, well...I'll just let you know that they're out there and you can read them if you want to learn more.

Here's one of those "other" cases.  The Texas Court of Criminal Appeals released its opinion in Ex Parte Michael Florence.  For any non-lawyers reading - when a CCA case begins with Ex Parte, its a dead giveaway that you're about to read a case regarding an application for a writ of habeas corpus.  Habeas Corpus is a legal action wherein a person seeks relief from (what he deems) unlawful detention.

In this case, Michael Florence, the applicant, submitted an application for a writ of habeas corpus seeking credit for pre-sentence confinement.  As the Court explained in dismissing the application (below), a writ of habeas corpus is not the correct procedure to gain the requested relief.
  Pre-sentence time credit claims typically must be raised by a motion for judgment nunc pro tunc filed with the clerk of the convicting trial court.  If the trial court denies the motion for judgment nunc pro tunc or fails to respond, relief may be sought by filing an application for writ of mandamus in a court of appeals.  If the court of appeals denies the application, ...relief may be sought by filing an application for writ of mandamus in this Court.  The applicant did not use that procedure.
     Instead he has sought relief by a post-conviction writ of habeas corpus under Article 11.07.  An application for writ of habeas corpus under Article 11.07 may be used to raise a claim for pre-sentence time credit if an applicant alleges that he is presently being illegally confined because he would have discharged his sentence if given the proper time credit.

Monday, May 17, 2010

LWOP Abolished for Juvenile Offenders in Nonhomicide Cases

Today, the U.S. Supreme Court released its opinion in Graham v. Florida, wherein it held:
The [Cruel and Unusual Punishment] Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.
Justice Kennedy delivered the opinion of the Court, in which Justices Stevens, Ginsburg, Breyer, and Sotomayor joined.  Chief Justice Roberts concurred.

Writing for Justices Scalia and Alito (in part), Justice Thomas stated is his dissenting opinion:
     The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide.  Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.
     The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of Columbia, and 37 States (but not Texas!) allow judges and juries to consider this sentencing practice in juvenile nonhomicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered.
He goes on to state:
     I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.
This opinion should not make much as a ripple in Texas law, however, becuase Texas does not allow LWOP for any juvenile offense, having abolished LWOP for juvenile capital murder last year.  Even so, it's a big case for 37 other states out there.

Please Drive Safely While Evading Arrest

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

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

While it may seem illogical to permit a deadly weapon enhancement where the use of the instrumentality characterized as a deadly weapon is an essential element of the underlying offense, Texas allows it.  I know...I couldn't believe it when I read it either.  Did the legislature truly intend that the offense of evading arrest by using a vehicle be enhanced further for proof that the actor used a vehicle?  I would hope not.  Although, the Texas Court of Criminal Appeals has not yet weighed-in on this issue, the 2nd District Court of Appeals (Fort Worth) and, most recently, the 6th District Court of Appeals (Texarkana), have explained:
Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced.
State v. Brown, ___ S.W.3d ___ (Tex. App.--Texarkana 2010).

This holding, to me, was a bit discouraging.  It essentially means that any offense wherein use of a motor vehicle is a necessary element (e.g. DWI) may be enhanced because the actor used a "vehicle."  I could understand enhancing the punishment if the actor used a different weapon, such as a gun or a knife to evade arrest, but a vehicle? C'mon!  Thankfully, Justice Carter's concurring opinion clarified the issue and tempered the majority opinion with some logical reasoning.  He stated:
The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. TEX. PENAL CODE ANN. § 38.04(a), (b)(1).  Theoretically a motor vehicle may be used in many ways—even if it is driven in a safe, uneventful manner, the offense would be a state jail felony.  The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof.  Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury.  TEX. PENAL CODE ANN. § 1.07(17) (Vernon Supp. 2009).  As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref‘d).
At least we know that enhancement isn't automatic - although I still don't think the hurdle is too high for the State to jump in cases such as these.  Is speeding enough?  What about swerving?  Hopefully the CCA will take this up soon and provide some clarity.  Until then, remember,
If you are going to evade arrest in a vehicle, drive carefully, within the speed limit, and obey all traffic regulations.

Thursday, May 13, 2010

See if Anything Sticks

In reading appellate cases lately, I've noticed that in many of them the appellant raises 10 or more issues on appeal.  Sometime the Court writes substantively about each one, but more times than not, the court summarily dismisses several of the issues while focusing on only one or two in its opinion.  This has got me thinking...would it be more beneficial for appellate defense counsel to more narrowly focus their appellate challenge to the most arguably meritorious of claims forget about the rest of them?  Do they lose credibility with the Court by raising claims that are sure to fail?  Or is it their duty to their client to throw as much stuff against the wall hoping that something will stick?

It seems to me, and take this for what it's worth from a guy who only reads the opinions and doesn't argue the cases, that a Court would be more likely to seriously consider the appellate challenge of an appellant when he says:
Look here, I lost at trial.  I understand that.  I'm not going to waste your time by raising every little potential error that I will surely lose on the standard of review or a harm analysis.  But here are the three reasons why you should set aside my conviction. Just three.  Surely you have the time to consider these three issues.  By the way, I have caselaw that backs up my position.
In a perfect world, I guess, we would always have three meritorious appellate issues backed by caselaw.  Heck, every lawyer out there would settle for just one meritorious issue.  Anyway, this post is just me thinking out loud.  Perhaps raising 20 appellate issues isn't always best for your client.  Perhaps it is.

Tuesday, May 11, 2010

Kick the Tires, and Light the Fires: A Primer on Arson

In Texas, Title 7 Section 28.02 of the Texas Penal Code lays out the offense of arson. The code says that a person commits the offense of arson if, “…he starts a fire, regardless of whether the fire continues after ignition, or causes an explosion” This language forms the basis of the offense. Most arson cases are second degree felonies carrying a punishment range of 2-20 years in the penitentiary and up to a $10,000 fine. Some arson cases can be classified as first degree felonies and some can be state jail felonies.

In my opinion, Section 28.02 is one of broadest statutes in the penal code. The only thing the offense of arson requires is that a person intentionally set a fire. The language establishes one of the broadest statutes that the State can prosecute under. The statute doesn’t just stop at “set a fire” or “cause an explosion”. Section 28.02 does attempt to limit the act by laying out what a person must set on fire in order to commit the offense. A person must start a fire or cause an explosion, “with the intent to destroy or damage:
(1) Any vegetation, fence, or structure on open-space land; or
(2) Any building, habitation, or vehicle:
    A. Knowing that it is within the limits of an incorporated city or town;
    B. Knowing that it is insured against damage or destruction;
    C. Knowing that it is subject to a mortgage or other security interest;
    D. Knowing that it is located on property belonging to another;
    E. Knowing that it has located within it property belonging to another; or
    F. When the person is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.”
Although the statute enumerates what a person must set fire to in order to commit the offense, this language covers almost any type of fire intentionally set. Of the flammable materials we live and work with every day, not much falls outside of vegetation, fences, structures, buildings, or habitations.

Of course, accidental fires do not fall within the language of this statute. In addition to accidental fires, sections (b) and (c) give exceptions to the statute for controlled burning on open-space land and fires set under the authority of a permit or written authorization from a city ordinance.

Given the broad language of the statute, you can see that the prosecution has a lot to work with when using its discretion in filing an arson case.

One of the key elements of an arson case is intent. The statute requires the intent to destroy or damage. Under the statute, the intent to start the fire or cause the explosion can actually be more important than the fire itself. For example, suppose a person takes a Molotov cocktail, lights it, and throws it into the window of a residence. The incendiary device hits the floor and goes out. No damage is done. Arson? I would argue that this act does fall within scope of the statute. The person intentionally set a fire by lighting the Molotov cocktail. The person had the intent to destroy or damage the habitation evidenced by his act of throwing the Molotov through the window of the residence. You can see that despite the lack of damage to the residence, this act would still be considered arson.

What if a person does not intend to destroy or damage the building, habitation or vehicle? For example, suppose a girl breaks up with her boyfriend. She has a shoebox full of photos that remind her of the now-painful relationship. She takes the shoebox to her parent’s house and she lights the shoebox on fire. The shoebox quickly engulfs in flames and then begins to spread to the rest of the room. The fire eventually burns the habitation to the ground. Arson? The defense could argue that the girl only intended to burn the shoebox full of photos. She did not intend to burn the house down. Sounds like a good defense, right? Well, the legislature added section (a-2) to address this type situation. Section (a-2) says that, “a person commits an offense if the person intentionally starts a fire or causes an explosion and in so doing: (1) recklessly damages or destroys a building belonging to another; or (2) recklessly causes another person to suffer bodily injury or death.”

Section (a-2) broadens the arson statute even further by now including some reckless fires. The intent element is still there in that the person must intend to start the fire, but the fire may extend out past the object of intention under (a-2). To reconcile this broadened section of the statute, the legislature did drop the degree of punishment under this section to a state jail felony.

For now, that’s a start on the basics of the Section 28.02. There are more nuances to the arson statute and situations can arise that challenge the language of this statute. Hopefully, this article will get you thinking until the next arson article….

Monday, May 10, 2010

Competent to Stand Trial, but Not to Proceed Pro Se

In Chadwick v. State, ___ S.W.3d___ (Tex. Crim. App. May 5th, 2010), the CCA applied to 2008 holding of the U.S. Supreme Court in Indiana v. Edwards to a Texas man who had recently exhibited a pattern of mental illness - so much so that he was ultimately comitted and rehabilitated before he was able to stand trial.  At his later trial the defendant requested to represent himself as his own attorney.  The trial judge denied the request and appointed a lawyer to represent him.  The defendant was convicted.  The question for the CCA on appeal was whether the trial court abused its discretion by refusing to allow the defendant to proceed pro se after his competency to stand trial was restored?

Although the Supreme Court previously stated, in Faretta v. California, 422 U.S. 806 (1975)
'the Sixth and Fourteenth Amendments to the federal Consitution prohibit the State from 'haling a person into its criminal courts and there forcing a lawyer upon him, even when he insists that he wants to conduct hos own defense,'
it later recognized in Indiana v. Edwards, 128 S.Ct. 2379 (2008) "a mental-illness-related limitation on the scope of the self-representation right."  In Edwards, the Supremes concluded that
the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.
In reaching this conclusion the Supreme Court determined that trial judges are usually in the best position to make "fine-tuned mental capacity decisions."  Accordingly, the CCA applied an abuse of discretion standard, and viewing the evidence in the light most favorable to the trial court's determination, upheld the decision denying the defendant's right to proceed pro se.

Friday, May 7, 2010

Search of Woman's Bra Exceeds Scope of 4th Amendment

Yesterday, the 14th District Court of Appeals (Houston) designated for publication an interesting 4th Amendment case regarding the scope of a pat-down search for weapons during a Terry stop. 

In State v. Williams, an Angleton police officer executed a traffic stop of the car in which the defendant was a passenger.  During the officer's valid investigative detention, the driver of the vehicle told the officer that the defendant was in possession of a knife and that she was trying to stab the other passengers.

Texas courts have stated that "a valid investigative detention can give a police officer the ability to pat-down or frisk the suspect for weapons."  Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009).  Courts, however, have not allowed an overly broad or unlimited pat-down in these instances, and have instructed that "officer may conduct a limited search for weapons of the suspect's outer clothing" when an officer "reasonably believes that the suspect is armed and dangerous."  Balentine v. State. 71 S.W.3d 763 (Tex. Crim. App. 2002).

In this case, however, the officer did not feel comfortable patting down the suspect, due to her busty build.  As the officer testified during trial, the defendant was well-endowed - "more than average."  Therefore, rather than conducting a limited pat-down search of the defendant, the officer simply asked her to
"kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit...and manuever it."
Although she did not initially agree to this, she ultimately complied and as she wiggled and jiggled, numerous pills fell out her bra.  At her subsequent trial, she moved to suppress the illegal drugs as being fruits of an unlawful search.  The trial court granted the motion.  The14th District Court of Appeals affirmed the trial court's ruling suppressing the evidence, stating:
The permissible scope of a protective search for weapons is extremely narrow.  [The officer's] reluctance to perform a pat-down search on a female provides insufficient justification for broadening the scope of the search.  We are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any.  If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either [the officer] or the female officer could have attempted to extract the item or could have conducted a more intrusive search.  And the 'more than average' size of [the defendant's] bust, as [the officer] described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.
Justice Yates concurs (HERE).

Thursday, May 6, 2010

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.

Wednesday, May 5, 2010

Court Considerations in Setting Bail

I have received some questions lately about how exactly a court sets a defendant's bail.  Let me begin with a disclaimer - there is no "exactness" involved in the process.  It is all a matter of discretion and balancing.  The primary purpose for setting bail is to secure the presence of the defendant in court at his trial.  The amount of bail should be set sufficiently high to give reasonable assurance that the defendant will show up, but not so high as to be an instrument of oppression.  Article 17.15 of the Texas Code of Criminal Procedure states:
In the exercise of its discretion, a trial court should consider the following factors in setting a defendant's bail before trial:
  1. The bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with.
  2. The power to require bail is not to be so used as to make it an instrument of oppression.
  3. The nature of the offense and the circumstances under which it was committed are to be considered.
  4. The ability to make bail is to be regarded, and proof may be taken upon this point.
  5. The future safety of a victim of the alleged offense and the community shall be considered.
The trial court will also take into consideration, the defendant's work history, family ties, residency, criminal record, conformity with previous bond conditions, and aggravating factors involved in the offense.

In reviewing a trial court's ruling regarding bail, Appellate courts will not intercede as long as the trial court's ruling is at least within the zone of reasonable disgreement.  In other words, the trial court can pretty much set bail at whatever it wants - so long as it can articulate some reasoning to justify it.

Tuesday, May 4, 2010

A Renewed Memorandum of Understanding in the Context of US-Italian Foreign Relations

When we speak about the Cultural Property Advisory Committee (CPAC) process, we should acknowledge that it takes place in the context of broader American foreign policy objectives. Indeed, the process is spearheaded by the State Department, the international relations arm of government, with decisionmaking ultimately in the hands of the White House, which is constitutionally designated to carry out foreign affairs. This week it is expected that Washington will continue to demonstrate its awareness of foreign policy issues and consider the four determinations of the Cultural Property Implementation Act in the context of its foreign policy goals.

On May 6 and 7 the Cultural Property Advisory Committee will review the Memorandum of Understanding between the United States and Italy. Italy seeks to preserve its cultural heritage by renewing this MoU, which creates barriers to stop at-risk archaeoligical and ethnological objects from seeping through America's borders. The Archaeological Institute of America describes the upcoming CPAC hearings on its web site at

It is no secret that US-Italian relations have not been the strongest in recent years, so renewing the MoU could foster some degree of goodwill needed to embrace one of America's closest allies. Italy has provided some steps to support the US in the last several years that could merit some affirmation by the White House. These steps include, among others, the merger between Fiat and Chrysler that rescued the failing American automaker; the Italian troop commitment in Iraq, representing the fourth largest military contingent deployed to that country in support of US objectives; and Italy' willingness to receive some of the Guantanamo Bay detainees.

When issues such as the shooting death by US forces in 2005 of an Italian secret service agent--who was escorting a released Italian hostage in Baghdad--still loom large in the background of US-Italian relations; or when Italy remains unsettled by its unwilling demotion from prominent G-8 country to a lower-tiered G-20 nation, it may become important to strengthen US-Italian ties.  A renewed MoU between the US and Italy could therefore serve to refresh strained foreign relations.

Photo by NuclearVacuum.  CC license.

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.

Monday, May 3, 2010

Specialty Courts - An Alternative Route to Justice in Texas

It has been a few weeks since we've heard from one of our prosecutor contributors.  I know their caseload keeps them quite busy and I appreciate all of their contributions.  Here's an overview of Specialty Courts in Texas by one of our prosecutors. 

Specialty Courts - Does your jurisdiction have them? As populations grow, so do their crime rates. One of the hottest trends to spread across the state are specialty courts. These “courts” are used to handle certain types of cases and relieve the caseload of district and county courts. I placed that term in quotes, because these aren’t the typical courts we think of. Yes, there are judges, prosecutors, and defense attorneys involved, but the normal procedural rigor does not exist. Rather, it is a much more practical, common-sense method, designed to dispose of cases efficiently.

The four common types of specialty courts geared toward criminal law are: Drug Court, DWI Court, Re-entry Court, and Mental Health Court. Depending on your jurisdiction, the operating procedures and names of these courts will vary. I will be preface by telling you to contact your local courts administration to find whether these types of courts exist in your jurisdiction and what the rules are for each.  What follows is a brief overview of the four courts mentioned above.

Primarily, with all specialty courts, there will be a panel consisting of a judge, a prosecutor, a defense attorney, probation officers and other various actors like MHMR representatives, CRTC or SAFP representatives and maybe even community leaders who volunteer their time to allow an avenue of resources for the court it wouldn’t have otherwise. The latter can provide information on local employment and housing for the participants.

This panel convenes before every court meeting and conducts a round-table discussion of the participants. The files of each participant are maintained by their case worker (who will usually be their probation officer) and at this briefing they provide details on the status of the participant like their employment situation, latest urinalysis results, or progress in counseling. The group will discuss each participant individually and make suggestions as to how to best handle their current situation. Sometimes, the conclusion might be that the participant needs to be praised for his efforts. Other times, the participant may need to be sanctioned for violations. After the briefing, the court-meeting is held where the participants are each addressed by the judge. The judge will speak briefly with the participant. Then, each defendant will be encouraged, either through discipline or a pat on the back.

The judge, at first glance, would seem to have the most important role because he is the one who presides over the process. He is the one who has the ability to sanction participants for violations of the rules of the court. Primarily, sanctions are handled civilly through contempt of court. Don’t get overly confused by this part. Participants who enter these courts must abide by the rules and terms given them by the court. If he fails to do so, the judge has the ability to sanction the participant to jail time through contempt of court.

The case worker’s role is equally as important. The panel depends on her to provide the information needed to determine what steps need to be taken to ensure the best outcome for the participant. Their relationship with the participant is obviously vital in maintaining the participant’s motivation.

The defense attorney participates by providing any collateral legal assistance needed by the participant. He does not represent the participants in their actual cases, but can help in guiding the participant in various legal situations like obtaining a driver’s license or valid ID card. He also serves as a liaison to the defense bar when they have questions about the court and its processes.

Ultimately, however, the prosecutor has the final say in whether the state will pursue a motion to revoke or filing the case (this depends on the court and its structure – see more on this later on.) The panel may feel one way, but the prosecutor still maintains her ability to do what she feels is in the best interest of the state. Most prosecutors assigned to these courts do so because they believe it works. Thus, most prosecutors will approach these courts with a “team” mentality and facilitate a cooperative effort by the panel.

The goal with these courts is to find ways to rehabilitate offenders who have the potential of being productive citizens in our communities. Rather than taking a hard-line approach to handling the rise in criminal caseloads, this effort is being pushed because it provides results-based successes. Not just keeping somebody out of trouble for a few months, but actually altering their behaviors to conform with acceptable societal standards for the rest of their lives.

As these specialty courts continue to grow, so will the types used to address different areas of criminal law. As of now, I’m familiar with the following four and will discuss each briefly.

Drug Court:

Primarily deals with drug users who haven’t yet established a criminal record. These are your first-time felony offenders and their cases very from Possession < 1 gram cases to Credit Card abuse cases. These are the folks who obviously have a drug problem. Depending on your jurisdiction (and again, please contact your Courts Administration office) this court will either put offenders in Drug Court as a term and condition of their probation (formal or deferred) or the prosecution will allow the person to participate in the program pre-filing (if the pre-filing method is used, after the offender completes the program, his case is dismissed.)

DWI Court:

This court handles defendants whose DWI occurrences (note more than one) do not rise to the felony level (DWI 3rd or more.) DWI Court, for the most part, sees those offenders who have more than one DWI pending or are on probation for DWI or DWI – 2nd and have failed to comply with the terms and conditions of their probations. Examples would include someone who has been arrested for multiple DWI’s during a short period of time or someone who is on probation and has picked up a new DWI or failed to abstain from alcohol use. The goal here is to rehabilitate these individuals before they reach the felony level. In exchange for not having to go the county jail for a lengthy period of time, these folks participate in this rigorous, lengthy specialty court where they receive more attention than they would than just being on probation.

Re-entry Court:

This court deals with drug and alcohol users who have agreed (either as a term and condition of their probation or as the result of a probation modification) to enter either a county rehabilitation program or SAFP (TDCJ.) Results have shown the probability of relapse is high upon their “re-entry” into society. This court’s purpose is to provide further structure to their lives so that relapse is avoided. The court increases the success rate of these individuals substantially by keeping a much closer eye on their progress. Instead of just having to report to their probation officer, each individual is carefully scrutinized by the panel and their progress or decline is continuously monitored. The goal is to ensure that the rehabilitation “sticks” (for lack of a better term) so that the participant doesn’t pick up further cases or relapse back into their addiction.

Mental Health Court:

This is probably the youngest of specialty courts and, for the most part, is still being established. This court deals with those individuals who have MHMR issues that affect their competency. This court allows criminal courts a way of keeping track of those cases where the defendant is being restored to competency or is in the process of having their competency reviewed. Instead of these cases falling into oblivion, the purpose is to bring them all together where they can be maintained with the same goal of being able to provide an effective resolution to each. Because these cases must be handled differently, this court provides that alternative method.

*Keep in mind, this court is obviously handled differently than the other three courts. Much of what is discussed here, is not applicable to Mental Health Courts. Again, contact your local courts administration for rules and guidelines.

The duration of these courts can vary. Some may last 12 to 24 months. Probations are often extended so that the individual can graduate from the program. That’s right, graduate. As the individual progresses through these programs they “phase” up. After they have completed all of their phases, they graduate. The idea is that upon graduation, these participants return to society changed. Changed so that their behaviors are modified and their ability to become productive members of society is stabilized.

As I’ve mentioned numerous times, please contact your local courts administration office to see whether these courts exist in your jurisdiction and what the rules are for each. Keep in mind, these courts are administered by each local jurisdiction. Therefore, there will be numerous variations from each jurisdiction. I hope I’ve provided enough information to spark your interest. I am by no means the authority on the specialty courts. There are numerous websites you can check out for further information. I’ve included a couple below. Remember, you may have a client who would benefit from these courts. Check into it. If your jurisdiction doesn’t have them, don’t be afraid to contact your courts administration office and ask why not? This may be a good time for the argument “everybody else is doing it!”