Dallas Criminal Defense Lawyer Blog

"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, 1016 (1988). 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.

Remember the right to counsel? In simpler times if you were in custody and asked for an attorney, the police had to wait for counsel to arrive before beggining their good cop/bad cop routine. Such antiquated rights like the 6th Amendment and Article 1 Section of the Texas Constitution are are being replaced with exciting new rights; like the right to be executed for an arson you didn't commit based on junk science.

Today's Court of Criminal Appeals Case of the day is.... Hughen v. State-

Facts- Hughen was arrested and charged with agg assault and attempted murder. Hughen was taken before a magistrate. During this time Hughen asked for a lawyer.

Undettered the police took Hughen to the interrogation chamber and had him sign a Miranda waiver. Hughen looked over the waiver form and, just before he signed the form, he asked. "This ain't waiving my right for an attorney, is it?"

The cop replied, "No, sir. This is just talking with us about what happened and what was going on and all that good stuff." Hughen then signed the waiver form.

Our CCA found that Hughen had waived the attorney he requested, and never received, in part based on the following exchange.

After Herrington explained to Hughen these rights, she asked him the following three questions and received his responses: (1) "Do you understand your rights, Jeff?" Hughen nodded in the affirmative. (2) "And understanding these rights, do you need to have a lawyer present before any questioning?" He answered, "I guess not right now, no." (3) "Having these rights in mind, will you talk to me now?" Hughen answered, "Okay."

"I guess not right now, no" would be an answer that a person without their lawyer would give. One of the things your defense lawyer will do is explain carefully why you should NOT talk to the cops. If you are in court you can't waive rights without your attorney present. Shouldn't the same protections apply to those in jail? But I digress.

The police proceed to get a confession. Hugen proceeds to get life and 20 years on the charges.

Wait a minute- Hughen sounds like he was guilty of some pretty bad stuff. Why should I care?

Good question. Upholding the rights of people like Hughen protects all of us. One of the reasons Texas routinely convicts the innocent is because we ignore basic Constitutional protections like the right to counsel. You would be shocked at how many people will confess under modern interrogations methods, even to crimes they did not commitT.

Worse, the police are allowed to lie and make up evidence that doesn't exist, to get your "confession." If a lawyer is present these games don't work. That is why the police and prosecutors are fighting so hard to destroy your right to have an attorney present during questioning.

With this ruling I'm going to have to move my office into the jail to keep the cops from making a run at my client every chance they get. Thanks CCA.

On a side note- Hughen did get that court appointed lawyer he asked for, a week later.

There may be one context in which the right to counsel still applies, custodial interrogations. From the opinion-

After Montejo, the Sixth Amendment does not bar police-initiated interrogation of an accused who has previously asserted his right to counsel. On the other hand, the Fifth Amendment does bar police-initiated interrogation of an accused who, in the context of custodial interrogation, has previously asserted his right to counsel during such interrogation, unless the accused's counsel is actually present. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)

Remember kids, ask for a lawyer, then ask for a lawyer, then ask for a lawyer.

I've discovered there is an inverse relationship between blogging and legal work. I'm grateful to be busy in this economy, but it's giving me blog fail. What I do have time for is another roundup!!

On Sotomayor-
First, I'll admit I have not done an exhaustive study of her opinions. I'm only familiar with the cases that have been highlighted by the media/blogosphere. My scant review of her track record indicates she is less of a liberal than a knee jerk statist. She seems to consistently side with the government over the individual. Whether it's cops (even really bad cops), eminent domain, affirmative actions programs, et al, the winner is the state.

The debate over strict constructionism vs. legislating from the bench is talk radio nonsense. Instead we should be concerned with a nominee's view on what protection, if any, the Constitution provides the individual. If Soto's case, it seems the individual is the means to the ends of the current political majority.

It's a strange day when ever the "liberal" SCOTUS nominee hates criminal defendants. Can we just give Ginsberg an extra vote?

Acetaminophen will kill you! FDA to the rescue!
We are all children of the wise omnipotent federal government. Lest we forget how important they are, a fresh crisis will be invited to remind us.Today, it's Tylenol. The media is falling over themselves to report on how dangerous acetaminophen is. I've taken a few hundred doses of aceta in my life, I'm still here, liver and all.

There are roughly 300,000,000 Americans. Last year, about 500 died from taking too much Tylenol. What does that tell you? That we need new laws and restrictions on Tylenol use? Or that 299,999,500 Americans understand how to use pain relievers safely and deserve the simple freedom of buying Tylenol without a prescription, and/or mixed with Nyquil?

Let's magnify the idiocy- last year acetaminophen killed 500, pot killed zero. Both provide pain relief. Moving on.

Payday loans and the Hot Check Hustle
I recently blogged about the unholy alliance between DA's and local business.

Today, I heard that the payday lenders have picked up on the fact they have an on call law enforcement debt collector. Allegedly payday loan companies are threatening to send bounced checks to local DA's offices unless you pay the check and some hefty "fees." That is, you get the loan, sign a post dated check, and if the check comes back your loan shark/pay day lender threatens to call the DA. This the kind of behavior we encourage when we make our prosecutors into human repo men and turn the county jail into debtor's prison.

Threatening jail time to collect a debt violates our fair debt collection act (ironically, actually using the DA to arrest the debtor doesn't).

Jury selection is art and science, part Dr. Phil, part Dr. Freud with some law thrown in for good measure. It's an area law schools provide no practical instruction for, yet no lawyer can try a case without knowing how to select a jury.

What law students are taught is Batson vs. Kentucky. Batson purported to end the practice of striking jurors based on race or ethnicity. This rule was later swallowed by the exception, but for a shining moment, the right to serve on a jury regardless of your race was protected by the Batson challenge.

What is a Batson challenge?
Either the State and Defendant can raise a BC if it appears that jurors were struck for their race or ethnicity. Then the opposing party must put forth a racially neutral explanation for each strike.

This brings us to our case of the day. No. 05-08-00146-CR, Greer vs. State. Well, first let me offer a racially neutral explanation for my post title. It's from Public Enemy's 1991 record, moving on.

Greer vs. State
Greer was tried for possessing cocaine (the real kind, not the banned energy drink), found guilty and sentenced to forty years. Greer appealed his conviction alleging Batson error.

The State and the Defendant each had 6 peremptory strikes to deselect the jury panel. The State used all 6 of their strikes on African American veniremembers. (I hate the word veniremembers. I always call them jurors, even though technically they aren't jurors until they are seated on the jury).

Greer's lawyer objected and raised a Batson Challenge, the trial court overruled this objection.

What's the law? From the decision

Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S. Ct. 92 (2008). If he carries this burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Id. If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Id. We skip the first step of the analysis if the trial court proceeded immediately to the second step by inquiring as to the striking party's race-neutral reasons. Id.

Until recently courts had a high tolerance for even the most patently absurd "racially neutral" justifications (length of hair etc). Here is what I remember from Con Law and prosecutor school; the State will survive a Batson challenge if the prosecutor can cite any reason for striking a juror besides "she's black". Anything, no matter how absurd, would suffice. Batson was effectively powerless, the Wade Phillips of constitutional protections.

Fortunately, SCOTUS corrected this error in 2008 in Snyder vs. Louisiana, holding that they would no longer accept the inane BS justifications put forward by the State.

Back to Greer's case. In Greer the State used all 6 of their strikes against African American jurors. What racially neutral reasons did they have?

I will admit these were better reasons than hair length. However, the defense lawyer did a great job pointing out that each reason given was not applied to a similarly situated white juror. Let's see this chess game in action.

From the opinion-

The State asserted that it struck Juror No. 2, an African-American, because she had family members who had been through the criminal justice system and because of her own bad experiences with police officers in the past. The State also relied on the fact that Juror No. 2 opined that rehabilitation of those convicted is the most important objective of “criminal justice punishment.” Greer argues that these reasons were pretextual, as shown by comparative juror analysis. We consider each of the State's reasons in turn.
First, the State explained that it struck Juror No. 2 (and Juror No. 31) because “each of these jurors had a family history-or history in their family of someone being through the criminal justice system either in jail or on probation or had-having been sent to the penitentiary.” This explanation was factually accurate; on her juror questionnaire, Juror No. 2 wrote that her brother-in-law had served jail time for burglary and that her husband had received probation for burglary. But as Greer points out, the State did not strike other non-African-American veniremembers who shared this characteristic. We focus in particular on Juror No. 7, a white woman who served on the jury. Juror No. 7 wrote on her questionnaire that her stepdaughter had served jail time for possession of a controlled substance. Yet, despite this similarity to Juror No. 2, the State did not strike Juror No. 7.

That's some fancy lawyerin'. Kudos. The State had a reason for each strike, but when that same logic was applied to a similar white juror it fell apart. The Dallas court notes that comparative juror analysis is the new rule for Batson cases.

The most recent precedents from the United States Supreme Court place heightened emphasis on juror comparisons of this kind. In Miller-El, the Court relied in part on such disparate treatment. 545 U.S. at 248 (“The fact that [the State's] reason also applied to other panel members, most of them white, none of them struck, is evidence of pretext.”)

Will this be appealed to the Court of Criminal Appeals? It seems ripe for PDR and my inner cynic fears a COCA reversal. Either way, it's good to see the Dallas court of appeals protecting the right of all veniremembers to serve on a jury.

Anyone who reads this blawg regulalry knows that I enjoy taking a current news story and adding some information on the law for the lay public, or some opinion not in the original piece (e.g. pot should be legal, the 4th Amendment matters).

News reaction is not the pinnacle of blawging. Grits, Simple Justice, and Defending People regularly pen original work on broader topics, or create news themselves. That's blawg gold. Recognizing the limitation of the form let's move on to the continuing saga of Judge Keller.

Today's DMN piece on Judge Sharon Keller's financial statement debacle leaves little for me to add. Instead, I'll just cut and paste a few sections. This is like mainlining irony.

The state's top criminal appeals court judge has amended her personal financial statement to disclose more than $2.4 million in property and income that she had not previously reported to the state, as required by law.

In a sworn statement filed in Austin earlier this week, Sharon Keller said she omitted more than two dozen properties, bank accounts, income sources and business directorships because her elderly father in Dallas had not told her about them.

Reasonable explanation right? Judge Keller is arguing that she lacks the mens rea required for culpability. Ergo, she wants to escape punishment for this oversight.
A late filing, with no ill intent, where could this possibly go...?

Cue Andrew Wheat-

Andrew Wheat, research director of Texans for Public Justice, an Austin watchdog group that filed the complaints over Keller's nondisclosures, suggested that the judge would not be swayed by other's pleas of sloppiness.

"If a defense attorney in a death penalty case before Judge Keller's court filed briefs as carelessly as Keller filed her financials, the client in question already would have been executed," he said.

I knew in law school that I was going to be a criminal defense lawyer. My criminal law class was a painful study in how our constitutional rights were sacrificed to help save dope cases. Decades of weakening the 4th and 5th amendment (to the point of absurdity) all in the name of WOD. I wish I had my notes for that class, I remember writing "court oks search because cops find drugs, create new exception" etc.

One such tragedy was the line of "automobile" exceptions. Basically, driving a car meant you gave up your privacy rights so cops could search for drugs.

That is why today's case, Arizona v. Gant is significant. SCOTUS overturns (or "declines to interpret broadly") bad precedent and actually limits police searches.

It's a strange coalition, this majority. You have the originalist/strict constructionists Thomas and Scalia joining the liberal Souter and Stephens, with Ginsburg rounding out the 5.

Facts(from the opinion)

After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat.

Across our country minor traffic arrests have become fishing expeditions for dope. Gant was arrested for driving for driving without a license. The cops had no evidence of drug possession, but they dutifully searched the vehicle and found cocaine (yawn).

Holding-

Police may search the passenger compartment of a vehicle inci-dent to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

To see how far we have come, let's look at where we started.

Every case that creates a new police search power starts off with this quote-

Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v.United States, 389 U. S. 347, 357.

These exceptions have largely swallowed the rule. First (Chimel) SCOTUS allowed cops to search the area immediately around the defendant where he could reach or "lunge" for a weapon (officer safety etc). This was expanded (Belton) to include searching the rest of the car because bad guys could hide guns and dope in a car (preserving evidence). So arresting drivers for minor violations and then tearing cars apart became standard practice for law enforcement. Add the Lago Vista disaster (giving the police authority to arrest for trivial minor traffic offenses) and we had a situation where suspects could be pulled over for a minor traffic violation, refuse a consent search request, and the police could just arrest them for the traffic offense and search anyway. These pretext arrests were an end run around the 4th amendment.

SCOTUS righftully shut down this search because
a) searching for weapons couldn't be justified under "officer safety" if the defendant is handcuffed in the back of the patrol car
b) searching for dope wasn't justified for a traffic violation.

So remember kids, never consent to a search, never answer questions about illegal activities, and always ask for a lawyer.

Before we get too exited, there is still the "inventory" search for automobiles that may save similar searches in the future. That is, the cops tow your car and then "inventory" the contents.

Did you know the police are allowed to lie to you? It's true. The police can make up facts out of whole cloth and present them as fact.

What if the police wanted you to open the door to your house so they could peek inside? One would think that cops must obtain a warrant before entering a private residence. Instead, cops can lie about your car being robbed so you open the door for them.

This brings us to our case of the day. Stern vs. State No. 05-08-00553-CR

Facts-
Plano PD received an anonymous call about the odor of marijuana coming from an apartment. Having solved all real crime in the area, Plano PD sends over a few officers to investigate. The cops have no warrant, no probable cause or emergency required to gain entrance. Instead Plano PD is hoping those inside the apartment will open the door so they can see the drugs in "plain view." (If a cop sees drugs he can come in and arrest without a warrant.)

A Plano PD cop puts covers the peephole in the door with his finger and then bangs on the door yelling "Dude someone is breaking into your car?" Plano police invent a malum in se crime so they can arrest for a malum prohibitum offense. A monument to all that is wrong with cannabis prohibition.

What happens next? The defendant quickly opens the door to investigate the fake car break in.

From the opinion-
"The aggressive action startled both uniformed officers. Endsley stated he was not expecting somebody to come running up to him like he wanted to fight. When appellant saw the officers, he took a step back into the apartment while the door was still open. At this point the officers described the odor as “a stronger odor of marihuana” and as “freshly burning marihuana” coming from inside the apartment. While the door was open, Endsley saw another person, identified as Bach, sitting on the couch. When Bach saw the officers, “it looked like he was rummaging through something at the time by the-on the couch.” The officers could not see Bach's hands. Bodacki stepped onto the threshold of the door to prevent appellant from closing the door. Bodacki saw beer cans and a marihuana “bong” in plain sight inside the apartment. The officers asked the two persons not to move."

The "aggressive action" startled the police? These cops cover the peephole, bang on the door, and then tell Stern his car is being burglarized and the cops act surprised when the defendant comes running outside to investigate? Are these cops also startled when the sun comes up each morning?

Issue- Can the cops fake a car burglary, cover up your door peephole, prevent you from closing the door, then peak inside your house, all without a warrant?

Holding- Of course, this is a drug search. How do you think we bust pot smokers?

The record reflects and the trial court found the officers entered believing officer safety and prevention of the destruction of evidence were paramount. Under these circumstances, we hold the officers had sufficient probable cause to enter the apartment. We next examine the issue of whether exigent circumstances existed to support a warrantless search of the apartment. When the officers first arrived at the apartment complex, they had information that there was a marihuana problem at a specific apartment. They corroborated this information when they arrived at the apartment and smelled marihuana emanating from the apartment doorway and then detected a stronger smell after appellant opened the front door. The combination of the odor of freshly burning marihuana, the fact it became quiet a few moments after the officers knocked, the delay in responding to the knock on the front door, Bach's furtive movements on the couch with his hands out of the officers' sight, and the need to determine that appellant and any other occupant in the apartment did not have a weapon and were not destroying evidence provided exigent circumstances for the officers to enter the apartment to conduct a protective sweep to secure the scene for officer safety and to prevent the destruction of evidence.

"Officer safety" has become a catch all term for drug searches. Since anyone could potentially be armed the cops are allowed to violate your rights if they just state that they thought you could be armed. No one wants cops to get hurt so our appellate courts allow all sorts of nonsense in the name of officer safety. We allow law enforcement to create these frightening home invasion situations and then when the residents act scared, nervous, or move in any manner the cops have further justification to search.

You know what would really enhance "officer safety"? If we quit sending armed police squads into private residences to search for pot. There should be a "citizen's safety" law to exclude these searches. Oh wait, that was the 4th amendment. Never mind.

Finally, none of this would have been necessary if Stern and his buddy had followed the "smoke pot and not get caught" rules from NORML. Never let your apartment smell like burnt marijuana, it's a bad idea. Your neighbor might be a narc and the Plano PD might stage a car jacking to gain entrance.

Court of Criminal Appeals judge Sharon Keller has been described as "Texas' Judge Dread". A self described "pro prosecutor" judge who not only shown a reckless disregard for innocence claims, but infamously closed the courthouse denying a death penalty appeal for Michael Richards.

From the Star Telegram-

Fort Worth State Rep. Lon Burnam filed a resolution this afternoon calling for the impeachment of Texas Court of Criminal Appeals Presiding Judge Sharon Keller.

Keller sparked controversy and condemnation two years ago when she refused to keep the court open past 5 p.m. on Sept. 25 to allow for a last-minute appeal for condemned killer Michael Wayne Richard who was awaiting execution...

Burnam's resolution, house resolution 480, charges Keller, a Republican, with "neglect of duty" over the incident and charges her with operating with "willful disregard for human life."

The charges against Keller are serious, and an impeachment trial would be a proper venue to litigate those claims. Plus an impeachment trial would be great blog material. Would Sharon mind having only "pro impeachment" Senators at her hearing, or having her arguments denied because the clerk's office arbitrarily closed?

Let's end with a quote from Houston defense lawyer Mark Bennett.

The courthouse shouldn’t belong to one party or the other. Since taking the bench, Judge Keller has kept her promise to reserve the keys to the courthouse for the State. She has proven herself a master of results-oriented jurisprudence — ruling for the government not because the law requires it, but because she is prosecution-oriented. It’s time for her to go.

Further Reading-
Fort Worth's Shawn Matlock on HR 480
HR 480
Sharon Killer
Grits- Sharon Keller Should Quit and Go Home

Today's case of the day is....

State of Texas vs. James Ray Deeds-
Facts- Balch Springs officer Palfreyman was working late one night when a motorist flagged the officer down. The motorist was concerned about a possible DWI driver in a red pickup.

What facts did the concerned citizen tell the officer to justify his DWI concern? Let's ask the officer-

I don't recall the exact statement, but led me to believe that, based on the driving patterns that he had witnessed, that he believed the driver of the pickup truck to be intoxicated.

Nothing. The officer can't remember and didn't bother to record anything. Who needs facts? This is DWI enforcement. Based on this rock solid investigation the officer spots a red pickup and immediately pulls the car over.

Problem- The red pickup had committed no traffic violation. The officer had no articulable facts or evidence that this driver was DWI. The defendant filed a motion to suppress the illegal arrest.

Holding- This is a DWI case so conviction affirmed. The court found plenty of "evidence" of DWI, enough to justify detaining this driver.

From the opinion-

The record shows that after receiving the informant's report, Palfreyman witnessed appellant “weave back and forth” within his traffic lane. That weaving “gave a small additional measure of corroboration” to the informant's report. See State v. Nelson, 228 S.W.3d 899, 904 (Tex. App.-Austin 2007, no pet.)...

Corroboration
How exactly do you corroborate a report that contains NO FACTS? Weaving in a lane is not illegal in Texas. You probably weaved in your lane on the way to work. Were you drunk? Should you have been pulled over if some random citizen told the police to arrest you?

Don't Drive After 11PM

Think weaving in a lane is a stretch? The court also rules that driving late at night can be used against you. From the opinion-

Finally, Palfreyman testified the likelihood of encountering an intoxicated driver on the roadway is generally highest between the hours of 11 p.m. and 3 a.m. The record shows the events at issue occurred at approximately 2 a.m

Statistical profiling is a poor substitute for real police work. It's a logical fallacy disguised as law enforcement.

If more drunk drivers are out late at night, that doesn't mean any individual late night driver is drunk. Why don't we just run credit scores to establish probable cause?

We've replaced the right to not be detained without cause, with the right to be arbitrarily stopped by law enforcement after 11pm. Another sacrifice of freedom at the idol of DWI enforcement. But who cares about DWI defendants?

If you were on trial for a misdemeanor assault, and a witness accused you of murder, would that prejudice your case? Would you feel better if the judge told the jury to "disregard" the murder allegation?

That brings us to our case of the day, Hecht v. State, No. 05-07-00431-CR.

Facts- Hecht was charged with misdemeanor assault family violence. The State couldn't get the victim to testify, so the government put on third party witnesses to build their case.

Problem- One of the witnesses testified that Hecht "had murdered someone." Hecht was convicted.

What's the law? An accused is entitled to be tried on the conduct charged, not for a collateral crime. See Tex. R. Evid. 404(b); Campos v. State, 589 S.W.2d 424, 427 (Tex. Crim. App. [Panel Op.] 1979); DeLeon v. State, 77 S.W.3d 300, 310 (Tex. App.-Austin 2001, pet. ref'd).

Remember that cocaine you did in college? Should that be exhibit A in your DWI trial 10 years later?

Turning the defendant into the Zodiac killer guarantees conviction and impugns the right to a fair trial. Of course, lofty ideals like "rights" and a "fair trial" are meaningless sans enforcement.

In Hecht's case his only hope was to ask the trial judge for a mistrial (Denied). Instead the trial court asked the jury to ignore the allegations that the defendant was a killer preying on the public.

An instruction to disregard isn't a lobotomy. Judges don't have those Men In Black memory erase gizmos. Was there any doubt the jury would convict a homicidal maniac of family violence?

Holding- You can unring a bell. This statement was no big deal. Finally, Hecht couldn't meet the impossible standard for overturning a denied mistrial. Conviction affirmed. No new trial.

Unanswered question- Did Hecht actually murder someone? I'm not sure, the opinion doesn't say and it shouldn't matter. The right to a fair trial protects the innocent as well as those convicted of heinous crimes.

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

White vs. State

Facts The Bexar County Sheriff informed a San Antonio police officer that there was an outstanding felony warrant for James White. SAPD officer goes to White's apartment, obtains a key from the landlord and lets himself in. White is found in the shower. During the arrest the officer finds a misdemeanor amount of marijuana.

Guess what? The warrant had been recalled. There was no warrant for the arrest of Mr. White. Defendant moved to suppress all evidence resulting from the illegal arrest. Motion denied by the trial court, defendant appeals.

Issue- Does 38.23 require the suppression of the marijuana?

Other issues- Shouldn't the government be responsible for maintaining an accurate warrant database? Or is this good enough for government work? Are we going to further erode our basic protections to save another useless pot conviction?

38.23
What is 38.23? It is the Texas version of the exclusionary rule. I'm glad Texas codified this common sense measure, since SCOTUS is hell bent on destroying the 4th Amendment.

Art. 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.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

How will the San Antonio Court of Appeals save this pot conviction? Simple, just expand the definition of "warrant" to include recalled warrants. Remember, it's only legislating from the bench if you further a liberal cause, this is strict constructionism.

Holding- A recalled warrant is still a warrant under 38.23(b) so the good faith provisions apply. If Deputy Dingdong at the Sheriff's office doesn't update the warrant database, and the arresting officer doesn't know the warrant is recalled, then the defendant has no recourse for a wrongful arrest. No suppression despite the illegal arrest.

I propose altering 38.23 to better inform the public how limited their protection is against illegal arrest. There is an distinct danger that Texans could read 38.23 and believe the law provides some degree of protection from such malfeasance.

Therefore, I propose a new subsection (c) for 38.23 as follows-

(c) It is an exception to the provisions of subsection (a) if drugs are found. The court shall consider the thousands of government employees who rely on petty drug arrests for their livelihood and sanction any police conduct that results in another triumphant dope arrest!

SCOTUS has a sorry history of eviscerating constitutional protections to save dope cases. Today's case, Herring vs. US, is textbook SCOTUS drug war/police apologetics.

Facts-
The police really wanted to arrest Herring because they had arrested him before. Once a criminal always a criminal right? The police knew that Herring was going to the impound lot to visit his car and wanted to arrest him before he left. Herring wasn't breaking any law. How could these cops arrest Herring without evidence of any crime?

These resourceful cops frantically called into the local sheriff to check for warrants on Herring. No warrants existed. So the cops called a neighboring county. Touchdown! There was a warrant. The police quickly arrested Herring and found some meth and a gun.

Problem- The warrant had been recalled 5 months earlier. There was no warrant. Some bureaucrat was too busy reading Perez Hilton to update the warrant database.

Issue- Shouldn't evidence (meth/gun) from an illegal warrantless arrest be suppressed?

Holding- Suppression denied, another useless meth conviction saved. Arresting someone on a non existent warrant is mere administrative negligence.

Notice how SCOTUS framed the issue. This wasn't a warrantless arrest, it was attenuated isolated negligence. Obviously. From the opinion-

Held: When police mistakes leading to an unlawful search are the re-sult of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements,the exclusionary rule does not apply.

If a recalled warrant is still in the system after 5 months, isn't that evidence of "reckless disregard" or "systemic error"? What is the harm in holding the government accountable for their own mistakes? Especially mistakes that lead to wrongful illegal arrests.

In our world turned upside down the 4th amendment ends up protecting the government, not the people. SCOTUS has created another impossible standard for defendants who wish to challenge malfeasance. "Systemic error" is the new "bad faith."

Hat tip to the TDCAA website for highlighting this recent COCA DWI opinion. In a remarkable decision the Court of Criminal Appeals actually upheld the rights of a DWI defendant. Unbelievable.

Case-Roy Bob Bartlett vs. The State of Texas

Facts- Roy Bob was charged with DWI. Roy Bob refused a breath test. The State wanted the jury charge to include language that refusing a breath test is evidence of guilt. The jury charge addressed the refusal and what the jury could think about said refusal.

Problem 1- Judges are not allowed to comment on the evidence. Juries decide what the facts are. You can't tell the jury what the facts are, or even what facts are important, in the jury charge.

Problem 2- The prosecution in this case was flat wrong. The law creates no presumption that a breath test refusal is evidence of guilt. That may be what most prosecutors and cops think, but it's not the law in Texas.

What is the law? Transportation Code section 724.061 allows evidence of a refusal to be introduced in a DWI trial. It doesn't say what the refusal means.

Holding- The case is sent back for a "harm analysis". Translation- sure this jury charge was illegal, but maybe we can still save this conviction by calling said error "harmless".

From the opinion-

Section 724.061 of the Transportation Code does not establish a legally recognized presumption of consciousness of guilt that follows from the fact of refusal. We are aware of no other statutory language that expressly authorizes the jury to presume a consciousness of guilt from the refusal to take a breath test. In the absence of such a legal presumption, it is improper for the trial court to instruct the jury with respect to inferences that may or may not be drawn from evidentiary facts to ultimate or elemental facts. Because a presumption of consciousness of guilt from the refusal to submit to a breath test "is not an explicit legal tool for the jury[,]" (22) it was error for the trial court to have instructed the jury with respect to available inferences that may derive from that evidence.

Finally, the admission of the appellant's refusal to take the breath test was not contingent on any other fact which a jury is charged by law to decide. Indeed, the law typically assigns to the judge, not the jury, the role of determining the admissibility of evidence. (23) Absent some express legal provision that does assign some role to the jury in the determination of what evidence may be considered, such as Article 38.22, Section 6, or Article 38.23(a) of the Code of Criminal Procedure, (24) to simply instruct the jury that certain evidence may be considered serves no legitimate purpose and needlessly calls its attention to that particular evidence to the derogation of all other evidence in the case. On its face, Section 724.061 of the Transportation Code does not involve the jury in the decision whether evidence of the refusal to take a breath test may be admitted for its consideration, and there was no call for the trial court in this case to give a jury instruction on that account.

First, a capital murder primer. Capital murder cases are those in which the death penalty is available, but not required. If the State waives the death penalty and a defendant is convicted of capital murder, the sentence is automatic life in prison.

On capital appeals it too often seems that the goal is to save the conviction and find/make law to effect that purpose. That's why this decision was so remarkable. Roberts vs. State involves a bad person, who did a bad thing, has no friends or connections politically, and no reason to expect sympathy from our highest criminal court. All Roberts had is dedicated defense lawyers, including an assistant Dallas Public Defender who represented him in the Court of Criminal Appeals, Chris Souza. Mr. Souza wrote an excellent brief with a simple request- uphold the law.

Facts- Roberts shot and killed a woman in her apartment. The woman was pregnant with an embryo. The embryo died. The state's medical witness testified that you could not tell this woman was pregnant by looking at her. The defendant did not know the woman was pregnant. Roberts was convicted of capital murder for the intentional killing of two people.

Issue- There are many ways to commit capital murder. In this case capital murder required, inter alia, the intentional killing of two people. The problem, Robert's didn't know the other person (embryo) existed.

What I expected- An "intent follows the bullet"/assumption of risk harmless error holding. That is, by shooting one person intentionally then you intend to kill whatever persons are inside that person. Or this error doesn't matter because the defendant is a piece of shit.

The actual holding- The law means what it says. You must actually intend to kill two people. This can't be capital murder. The case is sent back to the trial court for sentencing as a regular non-capital murder with a range of punishment 5-99 years. Probation, even deferred is available, but not likely.

What this doesn't mean- That Roberts is let go, or freed, or found not guilty. The court simply reformed the judgment from capital murder, to murder and reset the case for sentencing.

Why should you care? The law was followed. The law applies equally to everyone, even the least/worst among us.

I check the fresh opinions from the Dallas Court of Appeals almost daily. TCDLA helps me stay on top of opinions from across the State. Today, a TCDLA member shared an interesting DWI case with the defense bar.

Kurt Wells vs. The State of Texas- This opinion was handed down on 11/25 from the Amarillo court of appeals.

Facts -Kurt was convicted of DWI. Kurt performed the Horizontal Gaze Nystagmus test. (Personally, I would never take the HGN test, because, inter alia, the results are not confirmed on the in dash video tape.) At trial the State offered a statement from the American Optometrist Association declaring that HGN testing was valid and useful in DWI cases.

The Problem- The State offered this evidence through the arresting offer. The officer is not an optometrist, or a member of AOA. The officer had no knowledge of how the AOA came to its conclusion. We call such evidence, hearsay. Also, allowing these statements violates your right to confront the witnesses against you (Crawford).

State's Argument on Appeal- Sure it was hearsay, and it did violate the 6th Amendment right to confrontation; but it was merely a harmless error. Please uphold the conviction.

Holding- Conviction Reversed. Here is a great quote from a justice (Brian Quinn) who gets it.

While it is laudable for the State to concede error, it seems somewhat incongruous to invite like conduct in the future by simply holding that its actions were harmless. Indeed, experience teaches that in the heat of battle litigants often push the envelope of propriety until they are told to stop. As the old cliche goes, "give 'em an inch and they'll take a mile." So, care should be taken to dissuade litigants from attempting to take the mile when given the inch inherent in the harmless error rule. This seems especially so in those situations were there exists a quantum of admissible evidence indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the State as a way to slip into the record evidence of dubious legitimacy.

Harmless error holdings are dangerous because they encourage the State to continue violating your rights. It's only by reversing convictions that conduct is changed.

Harmless error findings also discourage future appellants from asserting their rights on appeal. Many defendants can't afford to appeal their conviction. Those who can afford an appeal may choose to forgo an appeal if they think the court will rule that error is harmless.

Speaking of harmless error. There is no harm in requiring a new trial. If we are going to err, it should be on the side of upholding the constitution and granting new trials. Mr. Wells might very well be convicted again. If he is, at least it is without violating his constitutional protections.