Dallas Criminal Defense Lawyer Blog

Our State's highest criminal court recently reversed a marijuana conviction out of Kaufman County Court at Law 2, just in time for 4/20. Whenever I discuss marijuana prohibition I always mention how much court time, prosecutor time, appointed lawyer time, police time and tax dollars we waste we waste prosecuting cannabis cases like this one.

It can take years for a case to move form arrest to appeal, and the whole time you are footing the bill so that the criminal justice system can have something to do (besides prosecute real crime that is). Marijuana prohibition is like an evil version of the WPA. Which reminds me, our lege is in session, so why not call your rep and ask them to support bills like this?

Enough editorializing, on to the case, our case of the day is Abney vs State.

What happened? From the opinion.

A Kaufman County Sheriff's Deputy followed Appellant for approximately one mile before pulling him over for driving in the left lane while not passing. When Appellant turned left onto a crossover to make a U-turn, the Deputy pulled the vehicle over, intending to identify the driver and issue a citation or warning regarding the traffic violation. Appellant was arrested and charged with possessing under two ounces of marijuana.

Appellant filed a motion to suppress evidence, which alleged that the traffic stop was unlawful. At the motion to suppress hearing, the Deputy testified that Appellant was traveling east on Highway 175, the road was straight, Appellant was not passing any other vehicles, and there were no vehicles in the right-hand lane. Kilgore said that a "left lane for passing only" sign was located about fifteen to twenty miles from where he first observed Appellant and that the sign provided the reasonable suspicion necessary to make the stop.

Did you get that? There was a sign twenty miles away that said not to drive in the right lane without passing, so that's why LEO stopped this driver. This feels like a pretext stop. Does anyone think the Deputy was really concerned with driving in the passing lane? Or was LEO trying to find a way to pull this car over and search for drugs?

Texas law allows for pretexts stops, and the transportation code provides a lot of cover for this activity. It's nearly impossible to drive for any length of time without committing some kind of traffic violation, and that's the way the State likes it. They can stop you, search you, and even arrest you, whenever they want.

What's the issue?
The trial court, and court of appeals ruled this stop was ok. The Court of Criminal Appeals discussed whether a sign 15-20 miles away could give an officer reasonable suspicion to stop.

Holding
Of course not. It would be crazy to rule that a sign 20 miles away means you still can not drive in the right lane. How long would such a sign last? Until the Texas border? That's just nuts.

Conviction reversed, and a small victory for liberty and Texas drivers everywhere. What is interesting is that Keller joined in the majority opinion. To quote Kanye West, "I know I got to be right now 'Cause I can't get much wronger." When Keller rules against the State, you can't get much wronger.

From the opinion-

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a "left lane for passing only" sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

The Supreme Court heard arguments in McNeely vs Missouri this week. The issue was whether the 4th Amendment's requirement for a warrant actually applies to DWI blood draws. The defendant in Mcneely refused to give a breath specimen, so the police just held him down and took his blood, which was allowed by statute in Missouri.

This should be a straight forward issue; the State shouldn't be able to simply over turn the bill of rights by statute.. Blood draws are a search, a very intrusive search at that, and we require warrants for searches. Of course, DWI and drug prosecutions are the tip of the spear when it comes to destroying the bill of rights. We've lost more freedom to save dope convictions and DWI cases than we'll ever get back.

The Government in McNeely argued that every DWI is an emergency, so they shouldn't have to get a warrant. That's a pretty broad definition of emergency and it really makes the government look lazy. I'm sure it would be easier to just ignore the 4th Amendment and let the conviction machine run unabated. But that's the point, we require warrants because we can not trust the government to do the right thing. We want to limit the power of government to act without oversight.

Warrants in DWI cases are extremely easy to get, all it takes it a fax machine and a fill in the blank application that any 7th grader could complete. The Government in McNeely argued that waiting 30 minutes was too long, and that the blood evidence would disappear. In Texas, our courts have allowed blood draws to be used against a defendant when the blood draws took place 2-3 hours after arrest. So at least in Texas, there is no emergency for at least 3 hours. That's plenty of time to get a warrant.

Currently the Texas warrantless blood draw scheme allows the police, without any judicial oversight, to forcibly take your blood in certain DWI cases. I've always felt this was unconstitutional and I hope current victims of these vampire tactics assert their rights in court.

You know, I can be pretty hard of appellate decisions I don't agree with. One of my main sources of blog inspiration is outrage at the loss of civil liberties through appellate decisions. It's only fair that I point out when our State's highest criminal court does something right, and today is that day.

Today's case of the day is Leonard vs. State, the Sequel!

What happened?
William Leonard was put on deferred probation for sexual assault. Like most sexual assault defendants Leonard was required to take Sex Offender treatment and counseling. Sex offender treatment includes regular polygraph sessions. Leonard failed some polygraphs and was kicked out of treatment.

Not completing sex offender treatment was a violation of a term of Leonard's probation. The State filed a motion to revoke, and had a hearing. At the hearing the sex offender Psychotherapist, Dr. Strain, testified that he kicked Leonard out of treatment for failing the polygraphs.

The defense lawyer objected that polygraph results are not admissible, the trial judge disagreed and revoked Leonard's probation. The judge believed that the polygraph was part of the expert's opinion, and our rules of evidence allow experts to some leeway to use otherwise inadmissible evidence to form an opinion.

Polygraphs in Texas
As long as I have been a lawyer polygraphs have been inadmissible in court. The science is not sound, and the prejudicial value is extremely high. What can be worse than some State "expert" saying he has scientifically proven your client is a liar? Good luck un-ringing that bell.

Polygraphs are routinely used in sexual assault investigations, especially in he said/she said cases with no evidence. They are also used in sex offender treatment and are a common probation requirement.

Despite a lack of reliability, the system views a polygraph as better than nothing. Fortunately, our State's appellate courts (to their great credit) have kept lie detector tests away from the jury (but strangely allowed "dog scent lineups to pollute our court rooms).

The Ruling
This is interesting. A few months ago the Court of Criminal Appeals ruled on the Leonard case and allowed the expert to use the polygraph to form his opinion. but that they could The defense bar was disappointed, but not entirely surprised. However, last week the Court of Criminal Appeals withdrew their earlier opinion and issued this opinion which again affirms that polygraphs are not admissible, even if used by an expert, because of the unreliability of polygraphs. Great job CCA.

From the opinion-

Rule 703 and Reliability In its first four issues, the State argues that, while polygraph results are inadmissible on their own, an expert who testifies under Rule 702 may, according to Rule 703, base his opinion on inadmissible evidence and, under Rule 705, inform the trial court of the basis for his opinion. So, in this case, it would have been permissible for Strain to (1) testify regarding his opinion of the appellant's honesty while the appellant was in treatment, (2) base that opinion entirely on polygraph results, and (3) because his opinion was based on the polygraph results, tell the trial court of the polygraph results. The State does not ask us to revisit our holding in Romero and, in its brief on rehearing, concedes that the results of polygraph examinations should continue to be inadmissible "for a number of reasons ...."

Rule of Evidence 702 allows "a witness qualified as an expert by knowledge, skill, experience, training, or education" to give opinion testimony based on "scientific, technical, or other specialized knowledge." Rule 703 specifies the bases on which an expert may base his testimony, and specifically allows that "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [relied upon] need not be admissible in evidence."

We believe the State's interpretation stretches Rule 703 beyond its limits. Rule 703 allows opinions based only upon inadmissible evidence if the inadmissible evidence is of a sort "reasonably relied upon." "The use of [the word] 'reasonably' rather than 'customarily' or 'regularly' implies that judicial oversight was intended." While Strain did make the conclusory statement that those in his field reasonably rely on polygraph results, the sole basis of his opinion was the results of a test that we have held inadmissible because it is not reliable. "Total reliance on inadmissible and untrustworthy facts cannot be reasonable. Nor would such an opinion achieve the minimum level of reliability necessary for admission under Rule 702." Rule 703 is not a conduit for admitting opinions based on "scientific, technical, or other specialized knowledge" that would not meet Rule 702's reliability requirement. If the methodology or data underlying an expert's opinion would not survive the scrutiny of a Rule 702 reliability analysis, Rule 703 does not render the opinion admissible. Thus Rule 703 did not provide a basis for the trial court to admit Strain's testimony, and we overrule the State's first four grounds for review.

Today the Dallas Court of Appeals reversed a sexual assault of a child conviction. The case is Wiseman vs. State. This case highlights the limits of expert testimony on the issue of honesty. Basically, an expert can't offer an opinion that certain groups of people lie, or certain groups tell the truth.

The expert testified that only 2% of children make up sexual assault allegations, and that most of those false allegations are from child custody cases. Fortunately, even in convict-at-all-Texas we don't allow trial by statistics.

What's the law on sexual assault experts? From the opinion-

Texas law is settled that an expert cannot give an opinion as to whether a person-or a class of persons to which the complainant belongs-is truthful. Yount, 872 S.W.2d at 712. "An expert who testifies that a class of persons to which the victim belongs is truthful is essentially telling the jury that they can believe the victim in the instant case as well." Id. at 711. This kind of testimony does not assist the jury as rule 702 contemplates. Id. Indeed, as we said in Wilson, such testimony "did not aid, but supplanted, the jury in its decision on whether the child complainant's testimony was credible."

What happens when an inmate sues the sheriff for open records information?

Today's case of the day is In Re Brian Edwards Johnson-

In 2008 Brian Edwards Johnson was incarcerated in the Kaufman County jail and sustained an injury. Not sure why he was in jail, or what the injury was. In 2011, Johnson was still an inmate (not sure where) and he filed an open records request to obtain records regarding the 2008 injury. The Sheriff denied the request and asked the AG to rule on the issue. The AG agreed with the Sheriff. Johnson filed suit and appealed to the 5th District in Dallas.

TIL- Texas allows the government to deny any open records request from an inmate. Texas Government Code 555.028 tells us that "[a] governmental body is not required to accept or comply with a request for information from (1) an individual who is imprisoned or confined in a correctional facility."

I kind of get it, and I kind of don't. Inmates, the people who we incarcerate (even if they are innocent) can abuse the legal process. So much so in fact, that Texas has special rules that govern lawsuits by indigent inmates.

See Tex. Civ. Prac. & Rem. Code Ann. § 14.002. Chapter fourteen imposes certain procedural requirements an inmate must satisfy in filing suit and allows a court to dismiss the suit if (1) the requirements are not met, (2) the inmate knowingly filed a false affidavit or unsworn declaration concerning previous suits or his indigency status, or (3) the suit is frivolous or malicious. See id. §§ 14.003(a), 14.004 (West Supp. 2011), 14.005 (West 2002); Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.-Fort Worth 2009, pet. denied). The purpose of chapter fourteen is to control inmate litigation and aid the trial court in determining whether an inmate's claim is frivolous. See Hamilton, 298 S.W.3d at 339; Garrett v. Williams, 250 S.W.3d 154, 157 (Tex. App.-Fort Worth 2008, no pet.).

However, unlike lawsuits which give a judge discretion and some parameters to evaluate the merits of an inmate's claim, inmate open record requests can be dismissed without any justification or review. In this case, Johnson appeared to argue the civil standard on appeal for his open records claim, that his open records claim wasn't frivolous, inter alia.

Holding- Johnson loses because the government can always ignore an open records request from an inmate. The Sheriff could provide this information if he wanted to. But that doesn't mean he has to. From the court's opinion-

Although information about the health of an inmate is subject to disclosure under section 552.029 and a governmental body may, under section 552.028, disclose records requested by an inmate, a governmental body is not required to comply with an inmate's request simply because the requested information pertains to the inmate himself. See Tex. Gov't Code Ann. § 552.028(b), 552.029.

Open records aren't free. The government can charge for this information. So I'm not sure why all inmate requests should be denied. Especially given the problem Texas has with a) convicting the innocent b) hiding evidence from defendants, and c) killing inmates through heat torture. What if an inmate uncovered evidence he was wrongfully convicted through open records activism? The system may not care about wrongful convictions (Texas has one county, Dallas, with a conviction integrity unit), but inmates do.

One thing inmates do have is time, and government may be wary of thousands of requests coming in from inmates. However, until Texas reforms our criminal justice system it seem less than equitable to deny those trapped in it access to all government information.

A Kaufman County conviction for Failure to Register as a Sex Offender was reversed last week for factual insufficiency. Basically, it appears the State indicted the defendant under the wrong section of the code of criminal procedure. Factual insufficiency reversals are pretty rare, so let's walk through how the court reached it's decision.

Today's case of the day is- Roberts vs. State.

What happened?
Roberts was required to register as a sex offender which, inter alia, includes an affirmative duty to notify law enforcement of the intent to move (see Code of Criminal Procedure 62.055).

Local law enforcement found out that Roberts intended to move, and hadn't notified them. A warrant was issued and Roberts was arrested for failing to notify law enforcement of his intent to move. However, Roberts was indicted for intentionally and knowingly failing to register as a sex offender in Kaufman County, which is a violation under article 62.051 of the Code of Criminal Procedure.

You can probably see where this is going. At trial the defense lawyer moved for a directed verdict, which was denied. On appeal the Defendant attacked the factual sufficiency on the conviction, because he had always registered as a sex offender, he just hadn't reported his intest to move.

Holding- The State indicted the Defendant for the wrong thing. Conviction reversed and Defendant acquitted. From the opinion-

Thus, the State had to prove (1) appellant's status as a person with a reportable offense; (2) Kaufman County is where he resided or intended to reside for more than seven days; and (3) he intentionally or knowingly failed to register with local law enforcement in Kaufman County. During trial, appellant twice urged a motion for instructed verdict in which he argued the gravaman of the offense against him was failing to notify Kaufman County authorities of a change in address. He argued there was no evidence he failed to register because he was in fact registered at the time of the arrest warrant and indictment. In response to appellant's motions for instructed verdict, the State argued the failure to change addresses was a registration violation, "and that's what he's being prosecuted on is a registration violation." We disagree with the State. The State specifically indicted appellant for intentionally and knowingly failing to register as a sex offender in Kaufman County, which is a violation under article 62.051 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 62.051. It did not allege appellant failed to notify authorities of a change in address, which is a separate violation under article 62.055. See Tex. Code Crim. Proc. Ann. art. 62.055 (West Supp. 2011). While we agree the arrest warrant issued for appellant was for failing to notify authorities of a change in address, that is not the offense specified in the indictment. The State was limited to, and required to prove, the method of violating article 62 as alleged in the indictment. See Fuller, 73 S.W.3d at 255; Rios, 141 S.W.3d at 752. This it failed to do. The evidence shows appellant registered in Kaufman County in 2005 and continued to report annually for his verification appointment through 2009. Although appellant's next scheduled verification was on September 7, 2010, he had until October 7, 2010 to meet his requirement. See Tex. Code Crim. Proc. Ann. art. 62.058(a). However, Kaufman County authorities issued an arrest warrant and arrested appellant before this date. Thus, when authorities arrested appellant on September 23, he was in fact still registered as a sex offender in Kaufman County. The State presented no evidence to the contrary. Accordingly, a rational jury could not have found the essential elements of the crime beyond a reasonable doubt.

I'm amazed on how banal DWI blood warrants have become. Maybe I shouldn't be. Look how far we've come in just a few shorts years. The TSA molests plane passengers without cause, and it's largely a non-issue. The police can demand that you give them your blood, and few seem to care. We've had DPS drones deployed for while (since discontinued) and... no one cared. I'm wondering what it willl take before privacy and liberty enter our political lexicon. Is there anything the public won't suffer in the name of public safety? Moving on.

Let's talk blood warrant appeals. Today's CCA case of the day is Sanchez vs. State-

What happened? A judge from Montgomery county signed a warrant to take Sanchez' blood in Harris County.

Holding- You can't do that.

Why not? That's where it gets complicated. The State argues that it's ok because judges can issue statewide arrest warrants, inter alia. Defense says no way because judges have limited power through the Texas Constitution. I'll let the court explain.

The State's argument asserting that the search warrant should be treated as an arrest warrant is without merit. The State ignores the practical differences between an arrest warrant and a search warrant. An arrest warrant protects an individual from an unreasonable seizure of his person and can be issued statewide based upon the assumption that a person is not likely to stay in the geographical proximity of his alleged offense for an extended time. See Steagald v. United States, 451 U.S. 204, 2131981); id. at 225 (Rehnquist, J., dissenting). In contrast, a search warrant is issued to protect an individual from an unreasonable search when the particular location of the item is ascertainable. Id. at 213. These differences arise because a search affects a person's

Some statutory county courts are composed of more than one county. TEX. GOV'T CODE §§ 25.2601-.2606. The laws relating to statutory county courts (including those articulated above) apply equally, with minor exceptions, to such multicounty statutory county courts. Id.

§§ 25.2601(b), 25.2606. Therefore, the jurisdiction of a multicounty statutory county court to issue a search warrant encompasses, but is limited to, the counties of which it is composed. generally less intrusive than a search. See Segura v. United States, 468 U.S. 796, 806 (1984). Consequently, in this case, an arrest warrant would allow police to arrest Appellant but not to draw a sample of his blood. The compelled extraction of blood infringes on Appellant's expectation of privacy, so before that sample could be taken, a search warrant (not an arrest warrant) was necessary to protect Appellant from an unreasonable search of his blood.

I like ruling for a couple of reasons. Not only because the defense won, but also because search warrant should be limited to judges who are accountable to the local legal community and voting public.

An area not addressed in the opinion is that judges should be somewhat familiar with the area in which they issue warrants. An El Paso judges issuing Texarkana search warrants makes no sense. I think it helps a judge make a probable cause determination if she has a history with the area and local law enforcement.

Here's a paragraph that makes my libertarian blood boil.

So, while the initial stop itself was illegal (emphasis mine), Grijalva never went beyond the bounds of what would have been constitutionally permissible had the stop in fact been justified at its inception. Under these circumstances, applying the law, as we have explicated it in this opinion, to the undisputed facts of the case in our de novo review, we conclude that the 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.

The cops acted illegally, but that's ok. Ugh.

Today's case of the day is Mazuca vs. State, from El Paso.

What happened?
The cops pulled over Mazuca for having broken taillights. A quick aside. It seems to me that tail light problems are the new favorite for pre-text stops. If the cops pull you over and tell you your tail lights are out (or dirty), there is a decent chance they think you are transporting narcotics. Back to the story.

Mazuca's defense lawyer had a pre trial suppression hearing and the judge held that the there was no traffic violation and the Officer wasn't credible. Ergo, the stop was illegal and the seized contraband (meth) was suppressed. But wait.... Mazuca had warrants out for his arrest. The State appeals and loses the first round, but then comes the PDR, and the CCA reverses everyone.

Holding- You already read that, it's at the top. Basically, CCA has created an impossible standard for the defense. The defense now has to prove not only that the cops acted illegally (which, under 38.23 should be enough). But that the police illegally pulled someone over on purpose. Pre text stops (in which the cops want to pull you over and follow you until they spot a traffic violation), are still legal, but it appears that illegal pre text stops can result in suppression, even with a warrant.

Constitutional violations are becoming more of an intent crime. For example, if the police destroy the video in your case, that's ok unless you can show "bad faith". Which, guess, what? That never happens. So in essence, we have yet another exception to the 4th Amendment, and our State's exclusionary rule.

It is campaign season, and in our one-party state strict constructionism has become a judicial virtue. With that in mind, here is the Texas exclusionary rule.

38.23 EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

38.23 is brilliant in it's scope and clarity. However, 38.23 is a living breathing ever-changing statute, from which new exceptions and limitations spring worth with abundance. Now we have the "illegal stop with a warrant" exception. You can't find that in the statute, but that's what judicial activism does. Somehow I don't think the Tea Party is going to be outraged. Which is too bad, the Second Amendment matters, but so does the Fourth.

But hey, we found some meth so now we are one step closer to winning the drug war right?

One reason Texas convicts so many innocent people is our lax standards for allowing the State to admit "scientific" evidence at trial. Given the State's nearly limitless resources for experts, supply is racing to catch up with demand, whether or not the science is sound or not.

Trial courts are supposed to be the gatekeepers of scientific evidence and limit what the jury can hear. That sounds great in theory, but in practice the State almost always gets in whatever "expert" they designate. It was this atmosphere that allowed the complete bullshit "science" of "dog scent lineups" to pollute our courtrooms.

The latest victim of junk science is Michael Arena. Michael was wrongfully convicted (his "victim" has completely recanted, stating that she was coerced by her mother to lie) of sexual assault, and sentenced to 20 years.

The back story is worth reading and highlights how easily sexual assault allegations can be manufactured to gain advantage in child-custody cases. Michael was a juvenile at the time, and his writ of habeas corpus (basically saying "let me out of jail I'm freakin' innocent!") went to the Texas Supreme Court, instead of the Court of Criminal Appeals (which is no small distinction).

You'd think that when the State's star witness admits to lying that would be enough to get you out of prison. In Texas, not so much. Our State's conviction machine has no reverse gear.

On to the junk science...

One of the areas ripe with pseudo-science nonsense is when "experts" try to guess how dangerous a defendant might be in the future. The truth is, no one really knows what someone is going to do in the future. But the State has unlimited funds to throw around, and an industry has sprouted up to give the State what they want, "future dangerousness" testimony.

In Michael's case, during punishment, an "expert" testified that Michael underwent an Abel Assesment which showed, with 85% accuracy, that Michael was a dangerous pedophile who would more than likely reoffend. The jury took notice and sentenced Michael to 20 years in prison.

What is an Abel Assesment? Basically, an individual looks at pictures on a computer screen. If you look too long at the pictures of children, you're a pedophile. You're probably not surprised to learn that the Abel has a very high error rate. From the opinion...

See United States v. Birdsbill, 243 F.Supp.2d 1128, 1135-36 (D. Mont. 2003) (describing later version of the Abel Assessment's error rates of 21-22% and 32% as "poor" and finding test unreliable); United States v. White Horse, 177 F.Supp.2d 973, 975 (D. S.D. 2001) (stating that 24% false negative on Abel Assessment "does not assist the jury" and finding test inadmissible); State v. Ericson, 13 A.3d 777, 781-82 (Me. 2011) (affirming trial court's exclusion of testimony regarding Abel Assessment and stating that error rate between 21% and 32% raises significant concern about reliability).

The court concluded that the "expert's" Able assesment testimony should not have been allowed, and that the "expert" did not testify truthfully. The case was remanded for a new sentencing hearing.

Unfortunately, this case may not be the death of Abel in Texas, as this case was uniquely focused on juvenile defendants. However, if you are faced with an Abel "expert" make sure your attorney is familiar with the latest research and this opinion.

I often have a hard time quickly explaining to my non-lawyer friends exactly how the appeals system is stacked against criminal defendants. Fortunately today's case, Barnes vs. State, crystallizes how the constitutional rights of defendants are effectively waived through nonsense technicalities. It's a Kaufman County Drug case, appealed to the 5th District in Dallas.

What happened?
Barnes filed a motion to suppress claiming the police investigation was unconstitutional. Specifically, Barnes sought to exclude statements made during the investigation. This motion was denied (as are most motions to suppress).

There was a trial on the case, and the State offered a video containing some of the evidence Barnes had earlier sought to suppress. Barne's attorney said he had "no objection" to the video, and why should he? He already objected pre trial and had a hearing on the issue. It should be obvious to all that he had challenged this evidence, lost, and did not have to challenge this evidence again. Check out the perfect catch-22 our appellate courts have crafted to rob defendants of their right to appeal.

At trial, when the State sought to introduce the videotape of the traffic stop containing his statements into evidence, appellant's counsel affirmatively stated, "No objection." When the drugs found in the car were offered into evidence, defense counsel also stated "No objection." And when the State offered the written analysis of the drugs into evidence, defense counsel again stated "No objection." When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object to the admission of the same evidence at trial in order to preserve error, but if the defendant affirmatively states that he has "no objection" to the evidence, he waives any error in its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008).

When the State hands you evidence in trial you have to say something or the judge will just stare at you and wonder if you are paying attention. So the rule is you are not required to object again but you if you say "no objection" then you waive all the issues you already argued pre trial. You can't stand there in silence, so you really do have to object again even though case law says you don't have to.

The practical function of this system is to uphold convictions and deny defendants the right to hold the State accountable for Constitutional violations. No attorney has a pre trial suppression hearing only to waive all complaints at trial. We've created this legal fiction because it allows our appellate to ignore consitutional violations. Rather than give the defendant his day in appellate court, we tell him he really wanted that unconstitional evidence used against him. Hogwash.

So remember, even though you are not required to object, you really are. Object every chance you get, to everything you can think of.

Today's case of the day is Michael Scott Page vs. The State of Texas. It's a Kaufman County weapons case that was appealed to the 5th Circuit in Dallas.

What happened?

Michael was out on bond (agg assault). While on bond Michael told his neighbor he we was going to blow up the courthouse. Michael's neighbor called the police and relayed the details of this conversation. Michael's bond was then declared insufficient (a topic for another post) and an arrest warrant was issued.

The police arrive go to Mr. Page's house and arrest Michael in the front yard. Michael is carted off to jail and the cops then decide to search the house for weapons. An officer testifies that search is out of concern for the safety of Michael and the public. During this search the officers find a pipe bomb and then decide it's time to get a warrant. Michael is convicted for possessing an explosive device and sentenced to 4 years TDC.

Michael's attorney filed a motion to suppress and an appeal is born.

Our issue- Can the cops search Michael's house without a warrant? Can the pipe bomb be used as evidence against him?

The 4th Amendment isn't lacking for clarity, no unreasonable searches or warrant issued without probable cause. Here we had no warrant so the State needs a 4th Amendment exception to save this search, and the conviction.

"The nine most terrifying words in the English language are: 'I'm from the government and I'm here to help.'" Ronald Reagan

Those nine words have turned into no less than two 4th Amendment exceptions; the emergency doctrine and the community care taking function.

From the opinion-

The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 1811990); Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011). The entry into a residence by police officers is a "search" for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756. A warrantless police entry into a residence is presumed unreasonable unless the entry falls within an exception. Id. at 756; Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996) (op. on reh'g). Two such exceptions are the emergency aid doctrine and the community caretaking or public servant doctrine. Laney, 117 S.W.3d at 860.

Under the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when an officer has an immediate, reasonable belief that a person within is in need of immediate aid and the officer must act to protect or preserve life or avoid serious injury. Laney, 117 S.W.3d at 861 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). This doctrine deals with, but is not limited to, private residences. Id.

The community caretaking function is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin v. State, 85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002). The officer must be primarily motivated by his community caretaking function and must have a reasonable belief that the defendant needs help. Id. at 277. In evaluating whether an officer reasonably believes a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

These altruistic 4th Amendment exceptions are rotten public policy. Given that there are thousands of felonies on the books, it may behoove the public to reject or avoid law enforcement assistance, even in an emergency, lest you end up facing the business end of our state's criminal justice system.

Holding- The search is no good, conviction reversed.

After reviewing the record, we likewise conclude these facts do not give rise to a legitimate community caretaking function exception to the requirement for a warrant. During the hearing, Phillips testified the sergeant told the officers to "go in the house and get [appellant's] guns for safekeeping." Assuming this is sufficient to show the officers were primarily motivated by their community caretaking function, we then consider the second prong of the Corbin test: whether the officers' beliefs that appellant needed help were reasonable. Because appellant had been removed from the house and was en route to jail before the officers began searching his house, there is clearly no evidence to show appellant was in distress, needed assistance, or presented a danger to himself or others. Applying these factors, we conclude the officers' exercise of their community caretaking function was not reasonable. The trial court abused its discretion by denying the motion to suppress.

Stopping a potential pipe bomber is a worthy cause, this isn't just another meaningless dope bust. That doesn't mean the war on drugs isn't at fault here. Prohibition poisons everything.

One of the opportunity costs of our failed drug war is that cops don't have enough time to solve real crime. Imagine if every drug task force was instead focused on illegal weapons. Officers would have the time to thoroughly investigate every potential pipe bomber, gather evidence, and secure a warrant before searching a residence.

Today's Dallas Court of Appeals case of the day is- Lowell Merritt vs. The State of Texas!

What happened? From the opinion.

The events leading up to appellant's indictment on a felony retaliation charge began in July 2007 when appellant's neighbor reported that appellant "cussed" his wife. After reviewing the report, a Collin County sheriff's deputy filed a disorderly conduct complaint against appellant in the Precinct 2 Justice of the Peace Court of Terry Douglas.
While his case was pending in the county court, appellant filed separate pro se lawsuits against his neighbor, the deputy sheriff who filed the complaint, and a witness at the justice court trial, complaining about their conduct in the criminal prosecution. Appellant filed the suits in Judge Douglas's JP court and sought to recuse the judge. Judge Douglas denied the motion to recuse, and after considering the defendants' motions for summary judgment, rendered take-nothing judgments. T
Appellant then filed the lawsuit against Judge Douglas that is the basis of this criminal prosecution. In his suit, filed in county court, appellant alleged Judge Douglas violated his rights by refusing to recuse himself and, as damages, sought the amount he sought in his earlier lawsuits as well as the sanctions ordered by Douglas. Days later, Robert Davis, an attorney retained by Collin County to represent Judge Douglas, sent a letter to appellant advising him that Judge Douglas was immune from suit and warning that if appellant did not dismiss the suit, he would seek sanctions.
Appellant was subsequently indicted on a charge of retaliation. The indictment alleged that appellant "intentionally and knowingly harm[ed] and threaten[ed] to harm Terry Douglas, by filing a frivolous lawsuit against him . . . in retaliation for and on account of his service and status as a public servant, to-wit: Justice of the Peace: Precinct Two."

Basically, this defendant is a jackass and a horrible attorney. It's not a crime to suck as an attorney. (Fill in joke here). And given the explosion of both pro se litigation (thanks legal zoom) and criminal statutes (thanks Texas GOP), upholding this conviction would have set a dangerous precedent.

How did the court reach their decision? Because it's not against the law to file a junk lawsuit.

Neither side argues that the act of filing of a frivolous lawsuit is "criminal"; rather, the issue is whether the act is "tortious." The penal code does not define "tortious." Where a statutory term is not defined by the Legislature, we ascribe to that term its ordinary meaning. Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993).
The term "tortious" is defined by Webster's Dictionary as "implying or involving tort for which the law gives damages." Webster's Third Int'l Dictionary 2413 (1981). A tort is defined as "a wrongful act for which a civil action will lie except for one involving breach of contract." Id. Similarly, Black's Law Dictionary defines "tortious" as "[w]rongful; of the nature of a tort." Black's Law Dictionary 1489 (6th ed. 1990). Further, tort is defined as "[a] private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages." Id.
The State argues that filing a frivolous lawsuit is a "tortious act." Specifically, the State argues that chapters 9 and 10 of the Texas Civil Practice and Remedies Code both "prohibit filing a pleading or motion that is not based on existing law or a non-frivolous extension of existing law." The State then concludes that "[b]ecause filing a frivolous lawsuit violates a statutory tort, it is a tortious and thus unlawful act." We cannot agree.
Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of groundless pleadings and claims in bad faith or for an improper purpose, such as harassment or to cause unnecessary delay. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001-.014 (West 2002). Chapter 10 allows for sanctions for filing pleadings and motions without legal or evidentiary support or for improper purpose. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001-.006 (West 2002).
In other words, the conduct prohibited by these statutes - filing frivolous pleadings or motions - is sanctionable, not tortious. Thus, contrary to the State's argument otherwise, filing a frivolous lawsuit is not a statutory tort under chapters 9 or 10. The State does not argue that filing a frivolous lawsuit can be the basis for any other statutory or common law tort. Because filing a frivolous lawsuit is not "tortious," it is not "unlawful" under the penal code definition; consequently, we conclude the alleged conduct in this case cannot serve as the basis for a criminal charge of retaliation.

The reason our State's criminal justice system is so broken is the asymmetry of responsibility and consequences. State's actors are the least accountable of all members of society. If you are frivolously arrested, charged, or even wrongfully convicted there is a near 0% chance any State actor will face the slightest inconvenience.

Citizens on the other hand, face unlimited punishment and destruction for their mistakes. If you want to really reform the criminal justice system take a cue from tort reform. Enact some loser pays legislation, allow for summary judgments for crap cases, and cap the damages defendants face for negligence.

I recently watched the Christohper Hicthens/Tony Blair debate on whether religion is a force for good in the world. To paraphrase Mr. Hitchens; "You can expect good people do good things, and bad people do bad things. To get a good person to do a bad thing you need religion." The idea being that one can bypass ordinary human decency and morality by stating that an act is divinely warranted.

The parallels with statism, positive law, and the War on Drugs, are evident to a front line observer of the Texas criminal justice system. The state may not claim divine authority, but it does share religion's ability to get good people to do horrible things.

Which brings me to our appellate case of the day- Hereford vs. State.

Facts- from the 7th Court of Appeals

One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument's log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp's first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if "repeated taser use [was] acceptable" and whether "20 seconds worth of tasering" was "okay," the policeman answered "yes" to both. Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance. In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford's inner thigh region; others saw them being administered to appellant's "groin area.

Fortunately, the Court of Criminal Appeals agreed that the 4th Amendment prohibits electro shock torture as an evidence gathering tool (Keller dissented).

Let's talk about Officer Arp, the man who decide to tase Hereford's groin. Let's assume, arguendo, that Officer Arp is not a sick twisted sadist who enjoys electro torture. What could motivate an otherwise decent person to an act of utter depravity?

Officer Arp testified that he believed Hereford had crack in his mouth. Our State has decreed that simple possession of any amount of cocaine is a felony offense. The State pollutes society at large, and especially LEOs, with Tuff on Crime/Drug War propaganda. Officers are trained to arrest as many crack users as they can to please the bureaucracy and.... out comes the groin taser!

It's been a few decades since the Milgram experiment , in which college students were given orders to deliver (fortunately fake) electric shocks to an innocent person. The shockee would feign heart failure and death, still the students would continue undeterred by the screams of their "victims".

The lesson, summarized by Milgram-

Ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority.

This act of electro torture is the end result of our state's idiotic drug laws, the inflamed War on Drugs rhetoric, and the modern milliatirez LEO mindset.The State is to be obeyed, laws enforced, and if you have to torture a defendant to make a crack arrest, that's just collateral damage.

As Kaufman County Bar President I've been working to start a bar philanthropy project. I'm a little worried about my ability to motivate my colleagues. Everyone is really busy, we don't have a lot of time, the economy sucks etc. I don't even have a Vice President to boss around (that was me, but since my promotion the position has been open).

Juvenile Defendant Literacy Project
To that end today I asked the bar to support a literacy project for juvenile probationers. I take no credit for this idea. It's the brainchild of Juvie Probation Director Laura Peace. This is her baby and the Kaufman Bar needs to come through.

If we can teach these defendants to read maybe they don't graduate to adult criminal court. That's the goal. Don't worry about me, I'll take more divorce cases. These kids need our help more than I need adult criminal clients.

We do need some help in the area of professional fundraising. I'd like to have an annual event, something we can build on each year. Since I've been a Kaufman bar member we've never attempted anything more ambitious than a Christmas party. If you have experience or ideas, email me and let me know how to get something like this started.

Chris Souza on Appeals-
Today's speaker was Dallas appellate genius Chris Souza. Mr. Souza updated our group on some recent appellate decisions.

Quote of the day, from the court of criminal appeals- "there is nothing inherently reckless about either exposing oneself or masturbating." Got that? Quit laughing.

The case was Smith vs. State, a CCA decision about a waste of time let's arrest some gay people sex in the park case in Houston.

Chris is one of the best criminal appellate lawyers in the State. If you haven't heard him speak about appeals you're missing out.

"In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him"
6th Amendment- US Constitution

You know what I don't use. A web cam. I've never installed one at my office or home. My macbook has one built in but it's always off. I'm not sure I want the entire internet staring at me while I type in my pajamas.

This bring me to our case of the day. What happens when a State's witness doesn't want to appear in person?

Case- Acevedo vs. State-
Facts- Acevedo was found guilty of murder. One witness, his sister, lived in Chicago and testified via web cam.
Issue- Can a web cam satisfy the right of confrontation?

First what's the law on confrontation? From the opinion

The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment provides, in pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). This clause, known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 10161988). The right includes not only a “physical examination” but also (1) ensures a witness will testify under oath, “impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury;” (2) forces the witness to submit to cross-examination, “the 'greatest legal engine ever invented for the discovery of the truth;'” and (3) permits the trier of fact to observe the witness's demeanor when giving testimony, “thus aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845-46 (1990). The combined effect of these elements serves the central concern of the Clause: “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845.

In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I've only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.

Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by "What did you say?" and "Can you repeat that?"

It doesn't sound like much but it's one of the ways I get to my client's version of the truth. I'm not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?

What about demeanor? You can't tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn't see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.

What did the court decide in this case? I will give the court credit for using very serious language in the opinion. They do not want to open the door to web cam testimony, but they do anyway.

In Texas, there are very few cases on allowing someone to testify remotely. They have been used, sparingly, for the terminally ill etc. In this case, the witness had a high risk pregnancy, which the court decides is the same degree of incapacity.

Question I have- I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?

We conclude the trial court did not err in finding Garcia's medical condition constituted an exceptional circumstance that warranted permitting her testimony by remote two-way video conferencing or in determining the system used by the State did not deprive appellant of his Sixth Amendment rights. We overrule the third issue.