To Trial or Not to Trial, that is the question!

There is a common dilemma among criminal defense attorneys: what to do when you have a very tempting offer from the DA and yet you believe the State still cannot prove it’s case?  It’s an extremely difficult position.  Or is it?

As attorney’s we all know that trial is a toss-up.  When you place a case in front of a jury, you never know what’s going to happen.  As a prosecutor, I once lost a case wherein the jury came back with a verdict of “not guilty” and attached a handwritten note to the verdict form that said, “and we hope you’ve learned your lesson and never do this again.” What?!?  Yes, it was clear that the guy had done it, but it was a classic case of jury nullification.  On the other hand, as a defense attorney, you always fear that even though the State doesn’t have the evidence to prove the case, that a jury will convict simply based on emotion, public perception or sentiment towards a particular alleged offense.  Hopefully, as criminal defense attorneys, we do our job and explain to the jury that these factors are not to be considered in their decision on the facts of the case….but, ultimately, we never know.

In our practice as criminal defense lawyers in Keller, Texas, we typically represent average citizens who have made mistakes. Sometimes our decisions are made easy when we have clients with criminal records a mile long and facts too egregious to advise our clients to trial. But when we represent the average citizen with no history, the decision on whether to go to trial can be a very difficult one. But, ultimately, you have to make a call and advise your client. I have found that the best way to handle this situation is the way you are supposed to handle this situation: make a decision, advise your client, but leave the ultimate decision up to the client. Remember, a citizen has a right to a jury trial. You may think that the offer is great and that there is no way that you’re going to beat it at trial. Make that abundantly clear to the client. After that, make it also abundantly clear that the ultimate decision is up to the client.  To trial, or not to trial can sometimes be an easy question to answer. But when it is not, give it thorough evaluation, advise your client and then throw the ball into the client’s court.

It goes without saying, but it’s always good to hear, your client has a constitutional right to a jury trial and they should always know that no matter how much you might advise against it, it is their right to exercise should they choose to. Plus, no matter how bad you might think your case is, there is the added benefit that you holding the State to their burden in front of the citizens that they work for. We maintain the integrity of our judicial system by holding the State to that burden and there is no better way to reinforce that integrity than through a jury trial.

“To trial or not to trial?” It never has an easy answer, but it is always the question that you should be focusing on when representing your clients.

Makes You Wonder About Your Jury

I saw this video the other day and it got me to thinking about jury selection and jury deliberations.  How much can we really learn about the folks that sit in judgment of our clients?  Are we ever really getting truthful, candid responses to the questions we ask in a group setting or are they just following each other's lead?  Of course, there is never a way to select a perfect jury.  Our adversarial system ensures that.  But perhaps, if we follow Bennett's simple rules, we will achieve some level of success.  And hopefully, if you end up with an "elevator" scenario, the folks on the elevator end up facing in the direction of reasonable doubt.

You’ll Get a Jury and Like It!

“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.  However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the court.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

Attack By Dog Statute Upheld

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson and Smith v. State.  The Attack By Dog statute provides, in relevant part:

(a) A person commits an offense if the person is the owner of a dog and the person:
     (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner’s real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;

After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms “unprovoked” and “attack” are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms “unprovoked” and “attack” are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:

Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.

The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners’ failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will go to jail.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.

See our post about a previous (and somewhat similar) attack to this statute HERE.

CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

See the CCA's full opinion HERE.

No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Soliciting a Criminal Defense Case

Let it be known, I would like to defend THIS GUY, if he is indicted (which I doubt will happen in Texas).

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Attenuating the Taint

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

     1. The temporal proximity of the arrest and the confession;
     2. The presence of intervening circumstances; and
     3. The purpose and flagrancy of the official misconduct (in making the arrest).

In State v. Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

This opinion was a tease.  I read all 29 pages expecting a certain outcome and then the CCA (by a 5-4 vote) pulled the rug out from under me in the final two paragraphs.  Apparently, I wasn’t the only one that felt this way.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

While it is beneficial for the CCA to create precedent where none previously existed, if it cannot apply that precedent to the facts of the case correctly, what good is it?

From Dry Land to Swimming: A Few Thoughts on Transitioning from Government Attorney to Private Practice

On March 1st of this year I stepped away from the dry land of a steady government paycheck (with benefits and retirement) to swimming in the ocean of private practice. Before I did, I asked a few attorneys (who shall remain nameless) some advice about making the leap. The general consensus from the attorney’s I talked to was, “Don’t do it!” While their misgivings were discouraging, something about that advice didn’t add up to me. Now that I’ve been practicing for a couple of months I understand why they advised me against the move…and I respectfully dissent.

Why did they tell me not to do it?

First, there is no more “steady”. The leap from government attorney to sole practitioner has been as far from steady as you can get. The word I use to describe my life to friends and family is “chaos”. That word is about as accurate as it gets. Between evaluating new clients, balancing current clients and keeping up with court dates and deadlines there is always something I need to be doing and staying on top of. (It really makes sitting down to write a blog post excruciatingly painful!). In government work, I worked from 8:00 a.m. to 5:00 p.m. Now, I’m on-call 24/7.

Second, there is the “unknown” factor. As a government attorney, I new how much I made and what I was supposed to do. My paycheck was always the same and automatically deposited into my account at the same times every month. I was able to budget, plan, save and keep my finances very organized…not so much now. Everything now is unknown. Week-to-week and even day-to-day, I don’t know what income I will be bringing in. There’s no way to know how many clients I will sign up. There’s no way to know what kind of case I’ll be working on in the future. There’s no way I’ll know what costs are going to pop up unexpectedly. There is so much unknown that it’s impossible to feel safe.

Third, it’s all me! When I worked for the government, I had a two legal assistants and a handful of attorney’s to bounce things off of. Now, it’s all me. I find that the tasks of researching, preparing motions, phone calls, emails and making decisions regarding my clients cases can be overwhelming at times. The responsibility of not only keeping my business sustained, but effectively representing my clients seems impossible sometimes. Psychologically, the stress and pressure has been taxing.

Now, the dissent:

It’s not steady, but it’s exciting. There is no boredom in what I do now. Now, I’m not going to say I was bored working for the government…but I will say that the pace of things now definitely keeps me on my toes. Deep-down, I enjoy the chaos. It’s stressful, and can make me irritable at times. But, for the first time since graduating law school (outside of my courtroom experience), I really feel like a lawyer. Plus, there’s always some new problem, some new situation that stimulates me to bring out my potential.

There is so much “unknown”, but some of it is really good! I don’t know what my income will be but it could be so much more than it used to be (and I’m finding that if I work hard and serve my clients to the best of my ability it likely will be). There have also been some great rewards in getting to know the people I’ve been helping and building relationships with. Those rewards were unknown when I started. Sure, it’s impossible to feel safe…but it’s also exciting to know that something really great and rewarding could walk through the door at any minute. That “unknown” is something that is constantly exciting and always hovering in the back of my mind.

Finally, it’s all me!!! When you help a client, or help them make a decision that they had not previously thought of, the rewards are indescribable. The pride I have in my work now does exceed what I previously did for the government because I know that nobody helped me come to my final decision but me. In addition to taking stock in your own work, there is that added benefit of being your own boss. I can take off when I want to as long as I'm caught up on my work. (Granted, that has not been often...but at least I know it's a possibility!)

All-in-all, I completely understand why attorneys would advise me not to go out on my own. But, it fits my personality and I’m happier now (despite the chaos and stress) than I ever have been. So, if you’re out there making a nice, steady safe paycheck and you’re comfortable with that, then my advice is to stay there. But, if something about that routine leaves you wanting for more and you’re willing to live with the fast-pace chaos, then jump on in…the water is fine!!!

Comment Rejected (Sorry SEO gurus)

As most bloggers do, I enjoy reading thoughtful comments.  It confirms that there is indeed someone out there reading my ramblings.  When I first began this blog, I published every comment that came in.  I was completely unaware of the SEO underground with its own agenda.  Now I’m wiser, savvier.  I can spot an SEO comment a mile away, and I reject them all.  This blog does not exist to drive traffic to your law firm.  If you write a thoughtful comment, even if you embed your firm’s link in the name, I will probably publish it.  But if you do as those listed below, your comment will be rejected.  I know that the SEO gurus could care less.  They probably submit thousands of comments a day, indiscriminately.  But they won’t be getting any link love here.

Here are some of the recent comments that I received and rejected (all from the same Criminal Defense firm in San Antonio).  Notice how the commenter does not even try to use a fake name – they just call themselves what they hope someone might be googling.  Shameless.

Comment from “San Antonio Criminal Defense Attorney”

This is a very good post. Especially as it contains information I haven’t read before.

Comment from “San Antonio Criminal Defense Attorney”

You have brought up very good details, appreciate it for the post.

Comment from “The DWI Sharks” (a.k.a. San Antonio Criminal Defense Attorney)

Thank you for sharing this post about the Criminal Defense Attorney, this is a big help for me and to the others as well on how to choose the right criminal defense lawyer. Thanks again :)

It is abundantly clear (from the grammar and syntax alone) that these comments were not submitted by lawyers.  I enjoy writing this blog.  I enjoy reading slip opinions and other current legal issues and posting about them.  But this blog does not exist to help drive internet traffic to your law firm’s website.  Sorry SEOsters - find another way.

The Beauty of Specialty Courts

As I'm sure you've noticed by now, specialty courts (drug courts, DWI courts, reentry courts, etc.) are rapidly becoming the norm in most criminal jurisdictions.  Why the increase in popularity?  Simple.  They work.

The National Association of Drug Court Professionals' website cites the five primary goals these programs are working to achieve.

     1) They reduce crime
     2) They save money
     3) They ensure compliance
     4) They combat addiction
     5) They restore families

Incarcerating addicts only delays their inevitable addiction cycle.  Specialty courts offer a real, life-changing alternative that not only aid individuals in their battle against addiction, but also improve the crime rates in every community in which they exist.  These specialty courts work to provide intense supervision through the cooperative efforts of local probation offices, prosecutors, defense attorneys, and, most importantly, judges. Read more about it here.

If you haven't researched specialty courts in your jurisdiction, I'd highly encourage you to do so immediately.  These programs could offer your present clients an incredible opportunity your previous clients didn't have.  Let's hope specialty courts continue to gain traction, and that more specialty court keep popping up throughout Texas.  It is important to remember that the criminal justice system is not always about punishment, it's also about rehabilitation.

Nothing to Report

I’ve written a couple of blog posts recently and then deleted them. They weren’t very good and I didn’t want my name at the bottom of them. I guess I need an alias for those posts that I don’t wish to claim. I’ve also read several recent Texas decisions, but I didn’t find any of them particularly blogworthy. I’ve trawled the internet in search of something worth sharing…nothing. So, just like I use to do when I was the firewatch in the squad bay and a senior officer approached me, I have nothing to report.

But check these guys out if you’re in the mood for a good law-related read:

• For something witty, try Jamison Koehler; or
• For something curmudgeony (pretty sure that's not a word), try Scott Greenfield.

Or...for a completely ridiculous YouTube video of Finland's version of the song YMCA with some very sketchy looking backup dancers, see HERE. 

Wow...Just Wow.

I cannot believe what I just saw - outrageous police brutality and utter disregard for human life.

See what I'm talking about HERE.  This video is unbelievable.

Greenfield posted about this HERE as well. 

Wow...

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

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

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

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

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

     (3) to decelerate before making a right turn;

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

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

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

     (7) to avoid a collision.

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

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

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

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

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

Lane Ends, Merge Left

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

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

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

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

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

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

Pre-Arrest, Pre-Miranda Right to Remain Silent

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

Mental Retardation and the 8th Amendment

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).  The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders are, in fact, retarded, in order to enforce this constitutional restriction. 

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?

Has the person formulated plans and carried them through, or is his conduct impulsive?

Does his conduct show leadership, or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision. 

Last week, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism recently, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

A Good Texas DWI Resource

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

Coaching a Child Victim

Texas courts have routinely held that an expert witness, such as a child psychologist, may not offer an opinion about the truth of a certain child victim's specific allegations or about the truth of child victim allegations in general. But they haven't shut that door completely.

A couple of weeks ago, the 7th District Court of Appeals (Amarillo) reaffirmed the legal principle that:

Expert testimony that a child did not exhibit indications of coaching or manipulation [does] not to constitute an opinion on the child's truthfulness. 

In Cantu v. State, one of the defense theories was that the child victim had been coached by her mother to make false allegations against Appellant. To counter this theory, the State brought an experienced child interviewer from the Advocacy Center to testify that in her expert opinion, the child victim in this case did not exhibit any "red flags" that would indicate that she had been coached or manipulated. The State was careful not to elicit testimony that the victim was being truthful and thus, the conviction was affirmed on appeal.

To me, this is still an area ripe for objections at trial and a special inclusion in the jury charge. You may get a judge that will exclude it. Okay, probably not, but it's worth a shot. While most lawyers can see the technical difference between an opinion on truthfulness and an opinion on coaching, many jurors will not. 

You can read the opinion here.