Monday, August 30, 2010

What To Do With the Alternate Jurors?

Back in June, I posted HERE about the Texas Court of Criminal Appeals decisions in Trinidad and Adams regarding whether, under the amended article 33.011(b) of the Texas Code of Criminal Procedure, the trial court should allow the alternate jurors to join the regular jurors in the deliberation room during deliberations.  In both cases, the CCA held that allowing the alternate jurors to be present in the jury room during deliberations did not violatethe constitutional prohibition against deliberation by more than 12 jurors. 

On 13 August 2010, the 3rd District Court of Appeals (Austin) released another case dealing with this exact issue. In Castillo v. State,  the Court cited that CCA precedent in Trinidad and Adams and, as lower courts are expected to do, held accordingly.  The Court explained that, because "there is no indication in the record that the alternate jurors voted on the verdict" it could not "conclude...that there was a constitutional violation."  Further, like the CCA opinions, the 3rd Court also declined to address the question of whether article 36.22 of the Code of Criminal Procedure, which provides that “[n]o person shall be permitted to be with a jury while it is deliberating,” was violated.

The Court handled the article 36.22 question by stating that
even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). Thus, unless the error affected Castillo’s substantial rights, it must be disregarded.
So, in short, nothing has changed on the alternate-jurors-in-the-jury-room-during-deliberations front.  Maybe I should have simply stated that up front and then you wouldn't have wasted your time reading this entire post.  Oh well - sorry.  As you can probably tell, the cases (at least the published cases) are not too sexy right now. I’ll try to dig up some good stuff to post about, but I’m just writing about what the Courts give me.

Thursday, August 26, 2010

Going Beyond Relevance

Capital Murder Conviction Reversed for Improper “Bad Acts” Evidence Offered by the State.

The State had a solid Capital Murder case against Desmond Dewayne Jackson. Here’s some of the evidence the State introduced to show that Jackson robbed the victim, shot him, and then fled:
  • Jackson admitted to a friend that he committed the murder.
  • Jackson admitted that before he attempted the robbery (which resulted in the murder) he studied the victim’s routine of going into the bank and returning with money for his store.
  • Jackson stated that he killed the man with “a .45.”
  • The victim died of gunshot wounds from a .45 caliber pistol.
  • Jackson stated that he stole approximately $8,000 and fled through the woods.
  • The victim had just received $8,884 from the bank.
  • Nearby witnesses saw a man fitting Jackson's description flee into the woods near the time of the murder.
  • Expended shells seized during a search of Jackson’s house had similar bunting markings as the shells found at the scene of the murder.
  • Jackson flew from Dallas to Atlanta the day after the crime.
  • Jackson’s wife had some poorly explained absences from work on the day of the crime.
  • Jackson lied to the police on several occasions concerning his whereabouts on the day of the crime.
Despite what the 6th District Court of Appeals characterized in its opinion as “substantial evidence of guilt,” the State apparently did not feel that it had enough. Perhaps that was why, at the conclusion of the defense case-in-chief, the State spent another 2 and ½ days introducing “rebuttal” evidence that Jackson also committed an armed robbery of a Kroger grocery store using a .45 caliber pistol. The State did not contend (at trial or on appeal) that the crimes were related nor did it allege that the two crimes demonstrated a modus operandi (common scheme) by the perpetrator. Rather, the State offered the extraneous offense evidence “to prove identity, to prove intent, and/or to rebut a defensive theory.”

The general rule is that extraneous offense (other bad acts) evidence is not admissible to prove the character of a person in order to show that he acted in conformity with that character on the day in question. It may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In this case, the State chose “identity” and “intent” as the exceptions de jure in its attempt to offer this unrelated offense to the jury.

Regarding the identity exception, the Texas Court of Criminal Appeals has explained that
When the extraneous offense is introduced to prove identity, the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.
Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005). As an illustration of this principle, think about the movie Home Alone, in which the burglars always left the water on in the home they burglarized in an attempts to be known as “The Wet Bandits.” In this case, however, as the court points out,
the only similarities between the pawn shop murder and the Kroger robbery are that both offenses were armed robberies committed with a .45 caliber pistol. We see no similarities that indicate a distinctive and idiosyncratic manner of committing criminal acts.
The State argued that the Kroger robbery, in which no one resisted or was injured, shows that Jackson intended to kill the victim in the pawn shop robbery because he resisted. Jackson argued, however, that he did not contest the issue of intent. Citing the CCA case of Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996)(op. on reh’g), the Court explained:
When the State’s evidence on intent is uncontradicted by the defendant or not undermined by cross-examination of the State’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy. Because Jackson never contested intent, the extraneous-offense evidence was inadmissible under Rule 404.
In holding that the trial court abused its discretion by allowing the State to introduce the Kroger robbery, the Court next had to consider whether the error resulted in harm. While noting the “substantial evidence of guilt” in the case, the Court stressed that there are other factors it must consider when determining harm, including “the character of the alleged error and how it might be considered in connection with other evidence in the case.” The Court further stated:
Extraneous-offense evidence is inherently prejudicial, tends to confuse the issues, and forces the accused to defend himseld against charge not part of the present case against him. By its very nature, an improperly admitted extraneous offense tends to be harmful.
Holding that the evidence of the Kroger robbery may have had a profound effect on the jury’s decision, the Court concluded that it was reversible error.

Capital murder conviction and LWOP sentence reversed and remanded.  Read the opinion HERE.

Saturday, August 21, 2010

What's That Smell?

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

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

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

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

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

Friday, August 20, 2010

Museums and Arts Organizations At Risk for Losing IRS Tax Exempt Recognition: Is Your Organization on the List?

The IRS recently published a long list of non-profits that have not filed appropriate forms for the last three years. Many museums, historical societies, and arts organizations are featured. These groups risk losing their tax-exempt status if action is not taken soon.

The IRS is giving organizations the opportunity to keep their tax-exempt recognition so long as paperwork is filed by October 15, 2010.

See if you are on the list at,,id=225889,00.html?portlet=7.

The Display of Art - A Fiduciary Duty of the Museum

Recently Eli Broad, art collector and philanthropist, told the American Association of Museums about its members' duty to take art out of storage and put it on display. “If 90% of your work is in storage you need to begin lending it to other institutions. Get art out of the basements,” The Art Newspaper reported.

The fiduciary duties of care, loyalty, and obedience obligate art museums to display their works. Museums are generally institutions legally formed for the public good. They hold works in trust for the viewing public. When works are accessioned and not displayed, museum boards of directors may be putting themselves at risk of violating their fiduciary duties.

While these duties have not been traditionally enforced by state attorneys general, the rise in deaccessions by institutions to raise revenue for operating costs could prompt greater scrutiny of these fiduciary duties. Taking works out of the basement makes good legal sense.

Thursday, August 19, 2010

A Paperless Defense Practice

A word from a Texas prosecutor on going paperless in your office:


Paperless systems are becoming more and more prevalent. I had an attorney tell me the other day he “didn’t do email.” What? Is that even possible nowadays? Probably, but how far are you falling behind in technological advances? A whole heckuva lot. The same can be said of those still using paper to operate their daily course of business.

Paperless is cheaper, faster, and much easier than managing “hard copy.” Need to send a note to a client? Why not email it? Need to communicate a counter-offer with the prosecutor? Don’t call. Shoot him an electronic fax. Ooh, what about needing to get copies of discovery, say medical records? Remember paying .25 a page? Forget that! Have the D.A.’s office copy them to your thumb drive.
Many state offices are switching to paperless systems where they operate without hard files and, instead, access all information via their computer systems. Discovery, motions, judgments, etc. are being entered into their system from either email or scanning of the documents. Ultimately, prosecutors are not relying on paper anymore. Why should you? After all, you have to pay for your paper, the prosecutors get their from the tax payers.

As technology continues to replace the old, primitive way of our criminal justice system, you will start to see more and more attorneys become dependent on their laptops (or even electronic devices like the iPad or Kindle – yes, I’ve already seen it.) Granted, for the immediate, foreseeable future, there will still be some things for which we must use paper (e.g. anything we file with the court), but the bulk of the paper currently being used in attorney’s office is becoming unnecessary.

Some argue it’s too expensive to get up to date on these advances, but I would urge the opposite. Paper isn’t exactly cheap. Computers and other electronics have become much more affordable. And besides, do you really want to look like that old attorney sitting behind his typewriter pecking away on his motions? Or do you want to be the attorney who’s up to speed not only on the law, but the society in which we live?


I like the prosecutor's appeal to "green-up" the defense practice and I agree with him in theory.  I also like the idea of cutting costs where possible.  But I have to say, I really like to read things on paper.  I am better able to spot errors and make notes when I have a hard copy of a document.  Perhaps I'm behind in the times a bit?

Wednesday, August 18, 2010

Spread 'Em!

Anonymous informant calls Houston County police officer with a tip that the suspect is traveling toward Houston County with drugs concealed in his anus.  Suspect is located and arrested, albeit on child support warrants.  Now that he is under arrest, may he be subjected to a visual body cavity search for drugs?

The Supreme Court has instructed that a "search incident to arrest authorizes the police to conduct 'a full search of the person.'"  U.S. v. Robinson, 414 U.S. 218 (1973).  However, the Texas Court of Criminal Appeals has noted that visual body cavity searches are among the most intrusive of searches and the Supreme Court did not hold that all searches incident to arret are per se reasonable.  What to do?  Ah, yes, bring in the balancing test.  The CCA has provided, based in its interpretation of Supreme Court precedent, that the following four factors are to be considered in determining the reasonableness of a search:
  1. The scope of the particular intrusion;
  2. The manner in which it is conducted;
  3. The justification for initiating it; and
  4. The place in which it is conducted.
McGee v. State, 105 S.W.3d 609.  But really, the entire balancing test hinges on #3, the justification for the search.  In our anonymous tip case, the police needed more than just the tip in order to conduct a visual body cavity search.  Incidentally, they had more because this particular suspect was already on their radar for drug distribution.  That, coupled with the anonymous tip, concluded the 6th District Court of Appeals (Texarkana), was enough to justify the intrusive search. 

I left a lot of good stuff out, but you can read more about this case HERE

Monday, August 16, 2010

16 Will Get You 20!

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

Appellant Mark Fleming in the 2nd District Court of Appeals (Fort Worth) challenged the strict liability nature of Texas' statutory rape offense (section 22.021(a)(1)(B)(iii) of the Texas Penal Code), arguing that the lack of a means rea requirement violated his rights under the federal due process and Texas due course of law provisions.
Fleming argues that the absence of a mens rea or mistake-of-age component to [Texas' statutory rape provision] is a wrongful government action irrespective of the procedure in place to guarantee fairness.
In considering his argument, the Court conducted somewhat of a survey of many jurisdictions across the country.  Mentioned in the opinion to support the notion that statutory rape (strict liability) laws are not dead in America were cites to cases from California, Wisconsin, Colorado, Louisiana, Maryland, Rhode Island, Missouri, Nebraska, Michigan, Massachusetts, Iowa, New Hampshire, and Utah, all upholding a similar provision.  It appears the Court went to such lengths to cite cases from other states in order to refute the idea that
the lack of a mental culpability component offends 'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'
and thereby avoid application of "strict scrutiny" to Appellant's constitutional claim.  With apparent national support, the Court thus held:
With these decisions and the backdrop of the majority rule in this nation regarding statutory rape in mind, we conclude that there is no fundamental right that a State is required to include a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, section 22.021 only needs to serve a legitimate state purpose to be constitutional against the backdrop of substantive due process. Strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor.

Although sound reasons might be advanced on either side of the argument of whether a mens rea component should exist or whether a mistake-of-age defense should exist in section 22.021, determining the line that separates what is criminal from what is not lies peculiarly within the sphere of legislative discretion—especially,as here, where no fundamental right is at question.
So, in case you were still wondering, "16 will still get you 20!"

Thursday, August 12, 2010

"Community Caretaker" Makes Unlawful DWI Arrest

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

At the driver's subsequent trial for DWI, he moved to suppress the evidence obtained at the stop, complaining that the officer lacked probable cause or reasonable suspicion.  As the 6th District Court of Appeals (Texarkana) explained, however, probable cause may not have been required if the officer was exercising a "community caretaker" function.
In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed.  As part of an officer’s duty to serve and protect, an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  This exception to the warrant requirement has narrow applicability.  The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement.
The problem in this case, as the Court points out, was that the driver did not objectively appear to be in distress, nor did he objectively appear to pose a danger to himself or others.  Accordingly, the Court held that the narrow community caretaker exception did not justify the officer's stop and thus, the driver's Fourth Amendment rights were violated.

See Travis v. State

Wednesday, August 11, 2010

Who Let the Dogs Out?

Contrary to the ruling of a trial judge in Fannin County, Section 822.005(a)(1) of the Texas Health and Safety Code, which makes it a crime to fail to secure your dog, is not unconstitutionally vague, says the 6th District Court of Appeals (Texarkana).

In State v. Taylor, the defendant (dog owner) moved to quash the indictment against him, which alleged that he was criminally negligent in failing to secure his dog when it attacked a woman, arguing that the statute was unconstitutional for failing to require a culpable mental state.  Not so says the appellate court.  Beginning its analysis with the plain reading of the statute, the court pointed out that the law clearly requires the dog owner to act with "criminal negligence" as defined by Section 6.03 of the Texas Penal Code. 
Section 822.005(a) requires a dog owner to secure its dog under certain circumstances.  This duty also exists in the common law, as a consequence of the general duty of a dog owner to exercise reasonable care to avoid foreseeable injury to others.  However, it is only when a dog owner acts with criminal negligence in failing to secure his or her dog, and the dog causes serious bodily injury to another (while not on the owner’s property) can the owner be called to account under Section 822.005(a) of the Texas Health & Safety Code.
Moreover, the Court emphasized, the duty to act does not apply to "every living person in the universe" (like Seinfeld's Good Samaritan Law);  it only applies to the dog owner.  Accordingly, the Court reversed the order quashing the indictment and remanded the case to the trial court.

Tuesday, August 10, 2010

You Snooze, You Lose.

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

In Ratliff, the Court instructs:
To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.  If a defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it.
Ratliff involved the seizure of drugs and drug paraphernalia.  The defense filed a pretrial motion to suppress, but failed to obtain a ruling prior to trial, opting to wait until the subject arose during trial to object.  The problem was that the trial defense attorney allowed the police officer to testify about the search and the items he seized before making an objection to the actual admission of the exhibits.  A bad strategy says the 2nd Court.
[A]ppellant's failure to object at the time [the detective] specifically described the physical evidence and explained how he found that evidence forfeited any error associated with his objection to the State's later introduction of the evidence.
The Court also included a few examples of similar blunders in other cases.
In Tell v. State, an aggravated robbery case, the defendant attempted at trial to suppress the admission of a ski mask that police officers obtained from his residence without a search warrant or consent. 908 S.W.2d 535 (Tex. App.--Fort Worth 1995, no pet.).  But the defendant allowed a police officer to answer four questions about seizing the ski mask before objecting to the evidence.  On appeal, we concluded that [b]ecause Tell failed to object at the time the ski mask was mentioned and allowed further questions and answers before finally objecting, he waived any error in the admission of the ski mask.
Similarly, in Turner v. State, the defendant contested the trial court's admission of evidence that a detective had seized from his vehicle after his arrest. 642 S.W.2d 216 (Tex. App.--Houston [14th Dist.] 1982, no pet.).  The court of appeals held that the defendant forfeited his objections at trial by allowing the detective to testify “extensively to the arrest and the items found in the search.  The appellant did not object to the testimony but only to the five exhibits.
Moral of the story: Objections must be urged at the earliest possible opportunity.  If you try to wait to object in order to spring a tactical trap on your opponent, you may be actually springing a trap on yourself (and your client).

Thursday, August 5, 2010

11 Angry Men?

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

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

Mail Call
In Brown v. State, the 12th District Court of Appeals (Tyler) reminds us of one of the many reasons it stinks to serve time in Texas (or anywhere) - nothing is private!  The Court explained:
[A]n inmate does not have an expectation of privacy. Hudson v. Palmer, 468 U.S. 517 (1984). Seizure of inmate mail is not a violation of an inmate's constitutional right to be free from unreasonable search and seizure. Stroud v. United States, 251 U.S. 15 (1919).  Additionally, there is no violation of an inmate's constitutional rights by prison officials reading the inmate's nonlegal mail. See Thomas v. Allsip, 836 S.W.2d 825 (Tex. App - Tyler 1992, no pet.).  Since Appellant has no expectation of privacy, the corrections officers were within their authority to obtain copies of his mail without a search warrant.