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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.

Sep06
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The Importance of a Waiver to a Potential Conflict of Interest

ByMurder

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the “end-all, be-all,” but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

Sep02
Love0

Homeless Thief Trades Laptop and iPhone for Egg McMuffin

ByJust For Fun

In lieu of a post on an obscure Texas law this week, I have a bizarre story for you. This is a true story about something that happened to a coworker of mine in Washington DC this past week. I’m trying to convince her to write something about it for the Washington Post, but she doesn’t think it’s newsworthy. I disagree simply because it is so crazy and bizarre (and funny to everyone but her). So here goes.

My coworker, we’ll call her Lindsay, is a Marine officer and lawyer. Lindsay lives alone in a basement apartment in a, how should we say it, not-so-well-to-do section of Washington DC. She calls it a “transitional community.” On Monday morning, Lindsay woke up, got dressed, put on a pot of coffee and plugged her cell phone into her computer that was on the coffee table in the living room. Then she noticed a package waiting for her outside her front door. Lindsay went outside to get the package and did not lock the front door when she came back in. After all, who needs to lock the front door when they are about to walk right back out of it in 10 minutes to go to work?

Lindsay then went back to her bathroom to tie her hair into a neatly shaped bun, a daily requirement for female Marines (those with long hair at least). When she returned to her living room (only 10 minutes later) to retrieve her piping hot cup of Joe she went to grab her cell phone and found that it was missing. Not only that, the computer to which she had just plugged it in was also missing. Knowing good and well that her coffee had not yet begun to take the desired effect, Lindsay began questioning whether she had actually plugged her phone into her computer 10 minutes ago. “Was this the early onset of Alzheimer’s?” she thought as she checked the refrigerator and freezer for her computer and phone. Finally, after scouring the house, she gave up and went to work.

Lindsay told me about her troubles as soon as she walked in the door to our Pentagon office and then she called her bank and credit card company. Believing now that someone had entered her house and stolen her laptop and phone, she also tried to report the incident to the DC police, but they refused to take the complaint. “You have to be calling us from inside your home or we cannot do anything.” She protested by kindly pointing out that the perpetrator had stolen her phone, but they weren’t convinced.

Right about now you might be thinking, “Okay, so what? She was burglarized. What’s so crazy about that?” Well here’s the crazy (and ridiculously lucky) part of the story. About an hour after she got to work, Lindsay received an odd message. Someone had called our office to report that she was in possession of Lindsay’s computer and cell phone. Lindsay called the woman who confirmed that she indeed had the laptop and cell phone and they arranged a time and place to meet up. When Lindsay met the woman she received the rest of the story.

This woman (the one that found the laptop and phone) was walking to work near the Washington Navy Yard when she saw a little homeless man walking down the street carrying a laptop and an iPhone. In fact, the iPhone was still plugged into the computer.  Finding the Apple-laden homeless man a bit out of place, the woman approached the him and said “Hey, I don’t think that laptop and cell phone belong to you. How about I buy you some breakfast at McDonald’s and you give me the laptop and cell phone so that I can return them to their rightful owner.” (After all, what’s a MacBook Pro when you can have a tasty egg McMuffin, right?) The homeless man agreed, enjoyed a McDonald’s breakfast and promptly relinquished the contraband items.

Later Lindsay paid the kind woman back for the homeless man’s breakfast and thanked her for stepping in. She is still pretty “creeped-out” as she puts it, that a random homeless man just let himself into her apartment while she was in the back room, but she has learned a valuable lesson about locking the door behind her. As Lindsay told us the story while we went for a jog around Capitol Hill, we wondered whether we would stop a homeless man to ask where he got a laptop/phone. We’re not sure we would have done that, but Lindsay sure is glad someone did.

Aug30
Love0

Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

ByJury Trial

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

Aug30
Love0

The Facebook Jury Instruction

ByJury Trial

As I was perusing my typical news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to “friend” the defendant in the case on Facebook.  That’s the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.  It is probably prudent to have a standard Facebook jury instruction.

Aug19
Love0

Obscure Texas Law #4 – Illegal Recruitment of an Athlete

ByJust For Fun

Here’s our weekly review of obscure Texas laws.  Although enacted in 1989, this harkens back to the era when SMU football was a powerhouse (before they received the death penalty).  I don’t know whether they have a similar law in Florida, but from the looks of things the Miami Hurricanes may be finding out real soon.

Section 32.441 – Illegal Recruitment of an Athlete

Under this law, “[a] person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.”

Of course there is an exception if the person providing the benefit is related to the athlete.

Violations of this law are broken down as follows:
(1) Class C misdemeanor if the value of the benefit is less than $20;
(2) Class B misdemeanor if the value of the benefit is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the benefit is $500 or more but less than $1,500;
(4) state jail felony if the value of the benefit is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the benefit is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the benefit is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the benefit is $200,000 or more.

This is one of those laws, however, in which you might see a lot of prosecutorial discretion.  After all, the elected district attorney might not position himself well for reelection if he goes around prosecuting the local cattle barons and oil tycoons.

Aug17
Love0

The Evils of Technology | GPS Search

ByWarrantless Search

I love technology – from tablet computers to smartphones to flat-screen televisions.  If it’s shiny and new and guaranteed to make me the envy of my friends and family, I’ll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we’ve lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother’s truck to track its movements.  Hernandez was arrested while driving his brother’s truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother’s vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents’ use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80’s and 90’s.  Accordingly, the Court upheld the trial court’s denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

Aug12
Love0

Obscure Texas Law #3 | Leaving a Child in a Vehicle

ByJust For Fun

Before my wife and I had children, I was used to running quick errands to the store in a matter of minutes.  When the rugrats arrived, the quick errands required carseats, strollers, diaper bags, etc.  While I am now somewhat of a pro at running errands with children, I didn’t adapt all that quickly.  The first time I took my son to the store with me it was dark outside and he was asleep in his car seat.  I pulled up to Best Buy and completely forgot that I had him with me.  About 5 minutes after walking through the aisles I realized what I had done.  I’m sure I resembled the mother from the movie Home Alone as I darted out of the store to get my baby and bring him back in with me.  I can only imagine what the employees that guard the doors must have thought.  Well, Texas doesn’t take kindly to idiot parents like me (correction: like I used to be).

Here’s obscure Texas law #3.

Section 22.10 – Leaving a Child in a Vehicle

Under this law, it is a class C misdemeanor for intentionally or knowingly leaving a child in a vehicle for longer than five minutes if that the child is younger than seven years of age; and not attended by an individual in the vehicle who is 14 years of age or older.

Okay, so I might not have been in trouble because (a) I did not intentionally leave my child in the car and (b) there is a decent argument that as a stupid new parent I also did not knowingly leave him in there, and (c) I didn’t leave him in there for more than 5 minutes, but others may not be so lucky.  In all seriousness, however, if you ever see a small child locked in a vehicle (especially in the Texas summer heat), call the authorities immediately.  This law exists because children have died from the heat or cold of being locked in a car.

Aug04
Love0

Obscure Texas Law #2 | Purchase and Sale of Human Organs

ByJust For Fun

Continuing our weekly look at obscure Texas laws (in no particular order), here is one that gives a whole new meaning to the phase “Give me a hand.”

Section 48.02 – Prohibition of the Purchase and Sale of Human Organs

Under this law, it is a Class A mismedeanor if a person “knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ.”

Of course, there are exceptions for blood and plasma, and more exceptions for medical transplants.  I cannot imagine that this law is charged very often, but it would not be on the books if it hadn’t been a problem at some point in time.  Perhaps the lawmakers were concerned with the urban legend in which the person wakes up in the bathtub of ice and both kidneys missing.

Aug03
Love0

Revisiting Michigan v. Bryant

ByConfrontation Clause

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Aug01
Love0

Use Caution When Arguing Ineffective Assistance of Counsel

ByIneffective Assistance

Last week, Justice Quinn of the 7th District Court of Appeals (Amarillo) very thinly masked his disgust in a three-page opinion (designated for publication) aimed at an appellant and his attorney who claimed that the trial defense counsel had been ineffective.  A shot across the bow to other would-be appellate attorneys who might be considering an ineffective assistance challenge, Justice Quinn warns “It ain’t a game folks; it’s real lives we are dealing with.”

The opinion (Nanez v. State) is short enough to read in about two minutes so I won’t reprint much of it, but here is, IMO, the best paragraph:

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done. Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact. Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective. Those before us today should heed that admonishment when next they think about invoking the theory. Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are dealing with.