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Brandon Barnett

Brandon Barnett is a partner and criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. His law practice is exclusively focused on misdemeanor and felony criminal defense in Tarrant County and surrounding areas. He is also a military judge in the Marine Corps Reserve and a law professor at Texas A&M University School of Law.

Mar 16
Love0

Politically-Incorrect Dissent on Sexual Assault in the Military

By Sex Crimes

This opinion reflects the personal views of the author and should not be attributed to any agency or office.

There has been a lot of media attention recently on rape victims and the prevalence of rape in the military.  As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience.  However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an “epidemic” in our ranks.  Does sexual assault occur in the military?  Absolutely.  But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large?  No.  And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug?  Certainly not!

One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment.  Another major difference is if the grand jury says there isn’t enough evidence, the District Attorney can’t go forward.  Neither of these checks and balances are found in the military justice system.

Instead, unit commanders (called Convening Authorities – usually Colonels and higher) decide whether a case should proceed to trial.  For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.

The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander.  This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial.  The easiest decision is to send it forward.

But can you blame them?  What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for “rapists” in the military?  Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as “hiding rapists” or being “soft on sexual assault?” No way!  They are going to take the easy way out.  The politically palatable way out.  They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting “the military justice system runs its course.”

Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit.  Many do.  But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit?  Not any more.  And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can’t you get the conviction?  The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can’t change the facts of the case, the rules of evidence, or the burden of proof.  These cases are seldom black and white.  And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.

With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused.  What happened to “innocent until proven guilty?” Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court.  This is terrible and antithetical to our criminal justice system.  We can’t simply jettison the Constitution when it is politically appealing.

Many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight.  Sometimes justice means that a person is convicted of sexual assault.  Sometimes it doesn’t.  But this prejudgment of military defendants (or any defendants) has to stop.  By law, an accused is innocent until a verdict of guilty is returned and no sooner.

Mar 15
Love0

An Instruction on Lesser-Included Instructions

By Burglary, Lesser-Included Offenses

Somehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary…

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).

Mar 14
Love0

Improvements in Expunction and Non-Disclosure Law in Texas

By Expunction
Written by Luke A. Williams, Criminal Defense Attorney with Barnett Howard & Williams PLLC, Fort Worth, Texas.
Recently, a client called me to ask about getting his record “sealed”. It was an exciting feeling for me.  Getting asked to evaluate an expunction or non-disclosure is probably not that exciting to most attorneys. But, for me it was exciting because I spent several years evaluating expunctions and non-disclosures wearing the hat of a prosecutor. This was the first time I was being asked to evaluate the possibility of an expunction or non-disclosure as a criminal defense attorney.
After my first semester in law school, I began clerking for a district attorney’s office.  As a clerk, my primary duty was to evaluate the incoming petitions for expunctions and non-disclosures.  At that time, I was eager to dissect any statute put in front of me.  After reading, very slowly and carefully, Art. 55.01 of the Texas Code of Criminal Procedure, I thought I had a handle on it.  Then, a situation with incoming petitions began to pop up.  Petitions were being filed to expunge misdemeanors before the statute of limitations had run.  According to my reading of the statute, this was not allowed.  Without going into more detail (and there is a lot to go into on this issue), I ended up helping an attorney in our civil division write a brief that eventually ended up in the Texas Supreme Court.  The opinion in The State of Texas v. Judy Beam, was handed down by Chief Justice Wallace B. Jefferson supporting my reading of the statute that the statute of limitations had to run on a misdemeanor before an expunction could be ordered. State v. Beam, 226 S.W.3d 392 (Tex. 2007).
The Beam case put a nail in the coffin for misdemeanor expunctions to be granted without having to wait at least two years.  The interesting issue in Beam was that it was clear that the legislative intent was for the statute of limitations not to apply.  The State knew that, but we felt that if they intended that to be the case they should have drafted it to reflect that.  If the wording of the statute is wrong and you have to look to the legislative intent behind every statute, what’s the point of codifying in the first place?  I’m glad we pushed Beam to the Supreme Court and got that ruling.  Even more so on the other side now.  What the Beam decision did was to force the legislature to go back to the drawing board and draft Art. 55.01 to reflect what their intent was.
The 82nd Legislature did just that.  SB 462 and HB 351 amended Art. 55.01 to expand eligibility for expunctions.  In addition to cutting the waiting period for expunctions, the legislature added a provision that states that regardless of the waiting periods, a person is entitled to an expunction if “ the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person.”
The new changes made by the 82nd Legislature make Art. 55.01 a better statute that now more accurately reflects not only the legislature’s intent on expunctions, but also the most just way to handle taking an offense off of someone’s record (that shouldn’t have been there in the first place).
The new changes to Art. 55.01 are a great improvement, but we still must do our best to educate clients about what expunctions are not. When the potential client called me he seemed to be under the impression that there is some magic eraser out there that can get rid of his criminal record. The bottom line is, expunctions never were meant to erase a conviction (unless it’s overturned on appeal or there is a pardon granted).
The potential client’s case was not qualified for either an expunction or a non-disclosure, but in light of the few years I’ve dealt with expunctions and non-disclosures, it was still exciting for me to talk to an actual person and hear their viewpoint on the expunction process.
Mar 13
Love1

A Prescription for Acquittal

By Drug Crimes

What does it mean to use a “Fraudulent Prescription Form” in Texas?

The State of Texas charged and convicted Billie Jean Avery of attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented at trial, however, revealed that the defendant actually used a legitimate prescription form, but that she forged some data on her prescription information in an attempt to obtain stronger pain pills.

In her appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that she could not be convicted of using a “fraudulent prescription form” when the prescription form she used was legitimate.  The Court of Appeals agreed and acquitted her of the offense.

On discretionary review, the Texas Court of Criminal Appeals affirmed Court of Appeals’ affirmed judgment of acquittal. In a unanimous opinion, the CCA explained:

Just as tax information should be recorded on a tax form to create a competed tax return, so too prescription information should be recorded on a prescription form to create a completed prescription.  The information that is written on the form is not the form itself…[W]e hold that “prescription form” refers to a pre-printed form designed to have prescription information written on it.

This was a case of a simple charging error by the District Attorney’s office, but it goes to show that attention to detail can win the day.

Fort Worth Drug Crimes Attorneys | Keller Southlake Drug Possession Defense Attorneys

Mar 12
Love0

CCA Reverses Course on Polygraph Admissibility

By Sex Crimes

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this “opinion is troubling,” as Sarah puts it.  I agree.

Mar 09
Love0
Black v. State, 2012

Trial Court May Reopen a Suppression Hearing

By Suppression

Black v. State, 2012In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, Black v. State, the Appellant, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.

Mar 07
Love0

Tips From High School Students on Persuasive Writing

By Just For Fun

For any of you appellate lawyers out there hammering out legal briefs, here are some helpful pointers from high school students across the nation. (Okay, they are not really pointers, but they are funny to read nonetheless.)

Every year, English teachers from across the country can submit their collections of actual analogies and metaphors found in high school essays. These excerpts are published each year for the amusement of educators nationwide.

Here are some of the winners from last year (I particularly like #7 and #16)….

1. Her face was a perfect oval, like a circle that had its two sides gently compressed by a Thigh Master.

2. His thoughts tumbled in his head, making and breaking alliances like underpants in a dryer without Cling Free.

3. He spoke with the wisdom that can only come from experience, like a guy who went blind because he looked at a solar eclipse without one of those boxes with a pinhole in it and now goes around the country speaking at high schools about the dangers of looking at a solar eclipse without one of those boxes with a pinhole in it.

4. She grew on him like she was a colony of E. Coli, and he was room-temperature Canadian beef.

5. She had a deep, throaty, genuine laugh, like that sound a dog makes just before it throws up.

6. Her vocabulary was as bad as, like, whatever.

7. He was as tall as a six-foot, three-inch tree.

8. The revelation that his marriage of 30 years had disintegrated because of his wife’s infidelity came as a rude shock, like a surcharge at a formerly surcharge-free ATM machine.

9. The little boat gently drifted across the pond exactly the way a bowling ball wouldn’t.

10. McBride fell 12 stories, hitting the pavement like a Hefty bag filled with vegetable soup.

11. From the attic came an unearthly howl. The whole scene had an eerie, surreal quality, like when you’re on vacation in another city and Jeopardy comes on at 7:00 p.m. Instead of 7:30.

12. Her hair glistened in the rain like a nose hair after a sneeze.

13. The hailstones leaped from the pavement, just like maggots when you fry them in hot grease.

14. Long separated by cruel fate, the star-crossed lovers raced across the grassy field toward each other like two freight trains, one having left Cleveland at 6:36 p.m. traveling at 55 mph, the other from Topeka at 4:19 p.m. at a speed of 35 mph.

15. They lived in a typical suburban neighborhood with picket fences that resembled Halle Berry’s teeth.

16. John and Mary had never met. They were like two hummingbirds who had also never met.

17. He fell for her like his heart was a mob informant, and she was the East River.

18. Even in his last years, Granddad had a mind like a steel trap, only one that had been left out so long, it had rusted shut.

19. Shots rang out, as shots are wont to do.

20. The plan was simple, like my brother-in-law Phil. But unlike Phil, this plan just might work.

21. The young fighter had a hungry look, the kind you get from not eating for a while.

22. He was as lame as a duck. Not the metaphorical lame duck, either, but a real duck that was actually lame, maybe from stepping on a land mine or something.

23. The ballerina rose gracefully en pointe and extended one slender leg behind her, like a dog at a fire hydrant.

24. It was an American tradition, like fathers chasing kids around with power tools.

25. He was deeply in love. When she spoke, he thought he heard bells, as if she were a garbage truck backing up.

Surely #19 can be worked into a legal brief at some point.  Talk about the power of persuasion…

Mar 05
Love0

Felon in Possession Even if Felony is Reversed

By Weapons Charges

Under section 46.04 of the Texas Penal Code, it is unlawful for a felon to possess a firearm.  Of course, it’s more complicated than that.  There are nuances.  But for the purpose of this post, I’ll leave it at that.

So here’s our scenario: A person is convicted of a felony.  Check.  Then that same person is caught possessing a firearm in violation of section 46.04.  Check.  He is then convicted for being a felon in possession.  Check.  But here’s the curveball…what if this person later challenges his original felony on appeal and wins?  Now the predicate offense is gone.  Poof!  Can his subsequent conviction for possession of a firearm by a felon still stand when he is no longer a felon?

The Texas Court of Criminal Appeals addressed this scenario in Ex Parte Jimenez.  To paraphrase the CCA’s answer…it depends.  It depends on when the person’s predicate felony was reversed.  If the predicate felony is reversed PRIOR to the conviction for possession of a firearm by a felon (as it was in Cuellar v. State, 70 S.W.3d 815), then the felon in possession conviction should not stand.  It should be reversed.  But if the predicate felony is reversed AFTER the person is convicted for possessing a firearm as a felon (as is the case here), then the conviction should not be disturbed.

The CCA looked to the U.S. Supreme Court’s holding in Lewis v. United States, 445 U.S. 55 (1980) which explained that “to obtain a valid conviction, the prosecution must prove the status of the defendant at the time he possessed the weapon.”

Therefore, if the defendant had the status of a felon at the time he possessed the firearm, a conviction for unlawful possession of a firearm by a felon is not void if the predicate felony is subsequently set aside.

In Jimenez’s case, because his felony conviction was reversed AFTER he was convicted of possession of a firearm, the CCA denied him relief.

Judge Meyers dissented, opining that the facts of the case fit the criteria for an actual innocence claim under the CCA’s opinion in Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

Feb 29
Love0

The Importance of Reading Statutes in Context

By Sex Crimes

Texas Stacking Sentences in Sexual Offenses

Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

Feb 27
Love0

No Duty to Retreat in the Defense of Others

By Duty to Retreat, Self-Defense

In Morales v. State, the Texas Court of Criminal Appeals held that there is NO duty to retreat when you are rightfully defending another person.  The CCA held that:

A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.