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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.

Jul29
Love0

Obscure Texas Law #1 | Use of Laser Pointers

ByJust For Fun

Texas has plenty of laws on the books that are obscure to the average Texan (including lawyers like me).  In an effort to educate the general public (since ignorance is no defense), I have decided to post one obscure Texas law (from the Texas Penal Code) every week, until I run out of (what I consider) obscure laws.  Here’s the first one:

Section 42.13 – Use of Laser Pointers

Under Section 42.13 of the Texas Penal Code, it is a Class C misdemeanor to knowingly point the “light from a laser pointer at a uniformed safety officer, including a peace officer, security guard, firefighter, emergency medical service worker, or other uniformed municipal, state, or federal officer.”

So I’ve never violated this law (to the best of my knowledge), but I am definitely guilty of making the family dog run around in circles chasing a laser light.  Perhaps there is another obscure Texas law that covers that.  We’ll find out in the coming weeks.

Jul28
Love1

Fort Bend County Loses the Dog Scent Lineup Issue Again

ByDog Scent Lineup

Last year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a “dog scent lineup” to match a suspect’s body scent to the scent of certain evidence from the crime scene.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in State v. Dominguez, another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect’s scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler’s methodology that the court noted were:

  • He carries around his “blind” non-suspect scent samples (called foil samples) in ziplock bags;
  • His foil samples are old samples, while the scent sample of the suspect is fresh;
  • He does not do negative runs where the sample of the suspect is excluded;
  • He uses multiple dogs during each test rather than allowing the dogs to work alone; and
  • He is mostly self-taught and his methodology is something he created.

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge’s ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler’s “dog scent lineup” evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

Jul15
Love0

Second Amendment Not Written For an Illegal Alien

ByImmigration

The Second Amendment to the United States Constitution provides:

…the right of the people to keep and bear Arms, shall not be infringed.

But who are “the people?”  Does that include everyone, even illegal aliens?  Nope, says the 5th Circuit.

In a recent case, the Appellant argued that his conviction for being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) violated the Second Amendment. The court held that “the people” referenced in the Second Amendment does not include aliens illegally in the United States. The court noted that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens, and between lawful and illegal aliens, and as a result 18 U.S.C. § 922(g)(5) is constitutional under the Second Amendment.

U.S. v. Portillo-Munoz, (5th Circuit) decided June 13, 2011.  See the full opinion in United States v. Portillo-Munoz.

Read about a different case (with a different conclusion) in Breitbart’s article.

Jul14
Love0

Wanna-be Texas Cheerleader’s Lawsuit Falls Off the Pyramid

ByJust For Fun

While the 5th Circuit case linked below has nothing to do with criminal law and procedure, it has everything to do with ridiculous Texas shenanigans.  Volokh linked it first.  I found it too good not to note.  Read the case for yourself.  Don’t pass up the footnotes.  It is utter greatness.

Samantha Sanches v. Carrollton-Farmers Branch ISD (5th Circuit – Civil)

Here a teaser:

Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (“title IX”) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

And it only gets better from there.

Jul13
Love1
Feet of a deceased individual on a morgue table, with a tag labeled "Jane Doe" indicating the body is subject to examination, relevant to discussions on medical examiner testimony in capital murder cases.

CCA Refuses to Grant New Trial in Capital Case After Medical Examiner Recants Trial Testimony and Trial Court Recommends New Trial

ByMurder

Feet of a deceased individual on a morgue table, with a toe tag, relevant to the legal case involving medical examiner testimony and capital murder.Ex Parte Neal Hampton Robbins – Tex. Crim. App. , June 29, 2011

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of “undetermined” is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced. Characterizing Robbins’s application as a “bare innocence claim,” the CCA explained that it must “look to see whether there is ‘clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’”

The CCA concluded that:

[The original medical examiner] did not entirely repudiate her testimony. Although she can no longer stand by her more definite trial testimony, it remains at least possible that [the child’s] death could have occurred as [the medical examiner] originally testified. Thus, [her] re-evaluation does not void her trial testimony. The jury could have considered [her] “undetermined” opinion and still found Applicant guilty, especially in light of all of the other evidence adduced at trial. Applicant has, therefore, failed to make the requisite showing “by clear and convincing evidence that no reasonable juror would have convicted him in light of” [the medical examiner’s] re-evaluation.

Application for writ of habeas corpus is denied.

Judge Price Concurred.

Judge Cochran, joined with Judges Womack and Johnson dissented, stating:

I certainly agree [that]…applicant has not established his actual innocence-not even close. But, given the inexperienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence (or the honest admission that science cannot resolve the critical issue.)

Judge Alcala also dissented in a separate opinion, stating that she would grant relief because Robbins “was denied due process of law by the State’s use of false testimony to obtain his conviction.”

If only Robbins had been tried in Florida by Casey Anthony’s jury, this entire appeal could have been averted.

Jul11
Love1

CCA Upholds DWI Search Warrant, Overturns Lower Courts

BySearch & Seizure

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jed Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a DWI search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the DWI search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

Jul07
Love0

A Simple Truth (Revisited): Expert Testimony on Mental Retardation

BySex Crimes

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It’s been my experience that folks with mental retardation can be painfully honest, really. I mean, it’s like a little kid who looks at somebody and says in the supermarket, ‘You’re really old,’ or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Barshaw v. State (Texas Court of Criminal Appeals 2011)

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

Jun30
Love0

Come and Knock on Our Door | Child Search Authority

ByWarrantless Search

Child Search Authority | Consent to Search Without a Warrant

Investigating a reported shooting, the police knock on the door to a home that is answered by an adolescent (a minor). Can the minor give the police permission to enter the home? Must the police ask whether the minor lives in the home? Should the police ask to speak to an adult? These issues were considered by the Texas Court of Criminal Appeals in Limon v. State, a case that was released a couple of weeks ago and designated for publication.

In an 8-1 decision, with Judge Womack writing for the majority, the CCA held that, while there is no per se rule that a child may or may not give consent to entry, a minor may possess apparent child search authority. The CCA cited the reasoning of the Supreme Court in the case of Georgia v. Randolph, 547 U.S. 103 (2006) and also noted five key facts that contributed to its ultimate conclusion that the minor in this case had the apparent authority to consent to entry:

1) [The minor] opened the door by himself in response to [the officer’s] knock;

2) The trial court could have inferred from [the officer’s] testimony that [the minor] appeared to be a teenager of significant maturity, if not a young adult;

3) [The minor] consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. (The reasoning being that the trial court could have believed that it was reasonable to rely on a teenager’s authority to consent to such a limited scope of entry, while it would not have been reasonable to rely on his authority to consent to a more intrusive search.);

4) The officer’s announced purpose was to conduct an emergency public-safety function; and

5) The time of entry (2 AM) could have led the trial court to believe that an individual opening the door at that hour was a resident rather than a guest.

Judge Meyers dissented, stating:

Nobody gives a teenager permission to allow strangers into their home. Yet, the majority focuses on what apparent authority the child in this case may have had to let the cops into the house a 2 o’clock in the morning. The police should presume that minors have no authority to consent to entry and should ask to speak to an adult. If no adults are available then the officers need to get a warrant (and possibly call CPS).

Jun18
Love0

The “Don’ cha know” Standard | Intent to Commit Theft

ByBurglary

Here’s the scenario – man is caught entering a home through a window that he broke. A female occupant of the home comes face-to-face with him and he then runs away. Is there evidence that the man was attempting to unlawfully enter the woman’s home? Certainly. Is there evidence to support the notion that he intended to commit a theft (or other felony) therein? That’s the question.

In Gear v. State, when posed with this question, the 12th District Court of Appeals (Tyler) held that the evidence was insufficient to prove that the man intended to commit a theft or other felony on the premises. Yes, the man tried to break in and yes the man was poor, but the State simply did not prove that an attempted “burglary” had occurred.

Enter the CCA (and exit the burden of proof). The Texas Court of Criminal Appeals reversed the Court of Appeals, holding:

On this record, we decide that a factfinder could reasonably find beyond a reasonable doubt that the recently unemployed appellant with about one dollar in his pocket intended to commit theft inside the complainant’s home when he attempted to enter the home through the window that he had just broken and where the evidence also shows that appellant ran when interrupted by the complainant and that appellant gave conflicting and implausible explanations for his actions.

If you ask me, who cares what explanations appellant gave for his actions? The State must prove this specific intent crime. The burden doesn’t shift to appellant to prove his innocence. If the State doesn’t prove the specific intent to commit theft, a verdict of acquittal is required.

Judge Cochran dissented from the majority. She writes,

[The majority opinion] seems to me to be a “Don’cha know” standard; appellant broke the window and was about to climb inside, therefore “don’cha know” he intended to commit theft…Looking at all of the evidence in this case, even in the light most favorable to the trial judge’s verdict, I cannot find the evidence sufficient in quality, character, or weight…

While everyone can probably agree that the man intentions were not honorable, if the State is going to charge something, the State must prove up the charge.

Jun17
Love0

What’s Behind Door Number 1? | Knock and Announce

ByDrug Crimes

Supreme Court Case Review –  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.