Seal DWI Conviction Texas

Denton County’s First DWI Non-Disclosure Granted

By | DWI | No Comments

Seal DWI Conviction TexasWhen Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

  • He was convicted of Class B DWI
  • He successfully completed all terms of his probation
  • More than 5 years have elapsed since he completed probation
  • He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.

Radar Detector Illegal Texas

Are Radar Detectors Illegal to Use in Texas?

By | Traffic Offenses | No Comments

Radar Detector Illegal TexasLets face it, most of us have received a speeding ticket at some point in our lifetime. As a result, radar detectors have become commonplace for drivers that want to take preventative measures to avoid receiving a ticket. Such preventative measures bring up an important question: are radar detectors illegal? Can I get a ticket for using a radar detector?

In Texas, using a radar detector in a passenger vehicle is legal with certain restrictions.
Under federal law, however, using a radar detector in any commercial vehicle that has a weight of 10,000 pounds or more is strictly prohibited. Commercial drivers are treated as professional drivers, and thus, different laws apply to them. 49 C.F.R. § 392.71(a).

Is it Legal to Mount a Radar Detector on My Windshield?

Although radar detectors are legal in Texas, a person may still be ticketed if they have mounted their radar detector on their windshield, side, or rear window, and that placement obstructs or reduces the operator’s clear view. Whether or not the placement obstructs an operator’s view is up to the officer’s discretion. As such, to avoid the hassle all together, it is best not to mount your radar detector on your windshield.

Radar Detectors on Military Bases

According to the Department of Defense instructions, persons are strictly prohibited from using radar or laser detection devices on military bases. Department of Defense, DoD Instruction 6055.04, DOD TRAFFIC SAFETY PROGRAM pg. 12 (2013).

What is the Difference Between a Radar Detector and a Radar Jammer?

Over the years, many devices have been created to help prevent speeders from being ticketed. The most common device is the radar detector, which is designed to locate radar signals out of the air. However, radar detectors have become less effective due to advances in technology and policing. This has generated the need for LIDAR/RADAR jamming devices. Unlike the traditional radar detector, a jamming device transmits a radio frequency signal that blocks or otherwise interferes with the operation of police LIDAR/RADAR by overloading its receiver with false information. Jamming devices can cause significant damage to police equipment. Moreover, such devices not only prevent police from detecting the speed of the vehicle with the device, but also the vehicles in the surrounding area.

Accordingly, in 2011, Texas passed HB 1116 to prohibit a person from using, attempting to use, installing, operating, or attempting to operate a radar interference device in a motor vehicle operated by the person. A person who commits an offense under this section may be charged with a class C misdemeanor. Tex. Transp. Code § 547.616. A Class C misdemeanor is punishable by a fine not to exceed $500.

Takeaways….

While many people believe radar detectors promote unsafe driving, advocates refute this contention by explaining that radar detectors alert drivers to their speed and remind them to drive the speed limit, and thus, safer.

In conclusion, spending money on a radar detector may help you dodge a speeding ticket and possibly even drive safer, but there are other laws that may be implicated when using such devices.

Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

By | Sex Crimes | No Comments

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

Fraudulent Prescription Forms Texas

Fraudulent Prescription Form Versus Alteration of Legitimate Prescription

By | Drug Crimes | No Comments

Can a Defendant Be Convicted for Using a “Fraudulent Prescription Form” When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

Fraudulent Prescription Forms TexasIn 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a “fraudulent prescription form” when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant’s physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a “fraudulent prescription form” as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.

Self-Defense Jury Charge Texas

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

By | Self-Defense | No Comments

Self-Defense Jury Charge TexasThe Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion

Shoplifting Before Leaving the Store

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By | Theft | No Comments

Shoplifting Before Leaving the StoreThe Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

DWI Jury Instruction Alcohol Burnett

Error to Instruct DWI Jury on Drug Intoxication When Not Supported By Evidence

By | DWI | No Comments

Is it Error to Provide a Jury with Instructions When the Statutory Language is not Supported by the Evidence?

DWI Jury Instruction Alcohol BurnettThe Court of Criminal Appeals recently handed down a case regarding the State’s ability to use the full statutory definition of “intoxicated” in a jury charge for DWI cases. The issue faced by the court was whether the trial court erred in providing the jury with portions of the statutory language that were not supported by evidence presented at trial.

Burnett v. State, Court of Criminal Appeals (2017)

The Facts—What Happened?

Burnett was arrested and charged with DWI after rear-ending a vehicle occupied by Bussey and Chappa. When Burnett exited his vehicle both Bussey and Chappa observed him to be intoxicated. Bussey and Chapa smelled the odor of alcohol on Burnett’s breath and noticed his speech to be slurred. Additionally, the first officer on the scene also noticed Burnett to have slurred speech and the odor of alcohol on his breath. Burnett told officers that he had not been drinking and consented to taking the standard field sobriety tests. Burnett showed signs of intoxication during the all three tests and was subsequently arrested.

In a search incident to arrest, officers found pills in Burnett’s jacket and a prescription pill bottle located in his car. The pills and prescription bottle were not photographed or admitted into evidence.

The State later charged Burnett with a Class B misdemeanor DWI and alleged that he was intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into his body . . .”

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion then Subsequently Admitted the Excluded Evidence as Same-Transaction Evidence.

One of the officers who saw the pills at the scene thought they were hydrocodone and was going to testify regarding such. The defendant filed a motion to suppress arguing that the officers should not be able to testify to what type of pills they found because the officers were not drug recognition experts. The trial court granted the motion to suppress.

Nonetheless, the following day at trial the pill discussion was brought up again. The state advised the Court that there was video evidence from the scene showing officer Coapland, officer Allred, and Burnett talking about the pills. Specifically, it showed that “Coapland found the pills in Burnett’s jacket, he gave them to Allred, who said that the pills looked like hydrocodone. Allred asked Burnett whether he had a prescription for the medication, and Burnett responded that he did.”

The State argued that the evidence of Burnett’s pill possession should be admitted into evidence as same-transaction contextual evidence. Over Burnett’s same objection the trial court admitted the pill evidence.

Then, when the court submitted the instructions to the jury, it included in the full statutory definition of the legal term “intoxicated,” which included not only intoxication by introduction of alcohol, but also by introduction of a drug (or a combination of alcohol and drugs).  Burnett objected to this definition, arguing that the proper instruction should not include language regarding drug intoxication because there was no evidence produced at trial to indicate that he had ingested any drugs at the time of his arrest.

The Court of Appeals Agreed with the Defendant—Holding that it to be Error to Submit the Entire Statutory Language.

On appeal, Burnett argued that the trial court erred in admitting evidence that he was in possession of hydrocodone and further argued that the trial court erroneously instructed the jury that it could convict him if it found that any substance other than alcohol intoxicated him.

The court of appeals agreed and held that the charging instrument must apply the law to the facts. In support they distinguished the facts in Burnett from those in Ouellette, a 2011 court of criminal appeals case.

In Ouellette, the defendant appeared intoxicated. After her arrest, officers found a drug that she expressly identified that was known to produce the same symptoms of intoxication as alcohol. Although there was no direct evidence that she consumed the drug, there was circumstantial evidence from which a rational juror could have found that she did based on her express identification of the drug and the officer’s testimony that the drug would produce similar symptoms. Thus, the jury charge in Ouellette reflected the law as it applied to the evidence.

The Court of Criminal Appeals Affirmed the COA Judgment and Agreed that the Jury Charge was Erroneous Since it did not Apply the Law to the Facts Produced at Trial.

The State appealed the appellate court reversal and argued that the jury charge should include the entire statutory definition regardless of the evidence presented at trial. More specifically, the State argued that the focus is only on whether the defendant is intoxicated, not the intoxicant itself. In support of this argument, the State referred to Judge Cochran’s dissenting opinion in Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).

In response, Burnett argued that while the State only needs to allege that the defendant was “intoxicated” and is permitted to use the language of the entire statutory definition, it would be erroneous to provide the jury with a section of statutory language that is not supported by the evidence at trial. Burnett argued that ruling for the State would allow “such guessing [that] could ensnare thousands of innocent Texans, such as fatigued drivers and those with naturally bad balance, even though they never ingested any substance as required to prove intoxication.” Burnett also claimed that the State misinterpreted Judge Cochran’s dissent and would not apply.

The Court of Criminal Appeals agreed that the State misinterpreted Judge Cochran’s dissent; the dissent discussed pleadings rather than jury charges and thus, was not applicable. Furthermore, the Court declined to follow the State’s argument that in every case the full statutory language should be allowed regardless of evidence. The court reasoned that the trial court is responsible for ensuring the jury instructions set forth the law applicable to the evidence in the case. As such, the jury charge must be tailored to the facts presented during the trial.

The court also noted that a jury will still be permitted to consider whether the defendant is intoxicated by “any other substance” if there is evidence that the defendant ingested a substance that caused intoxication or there is circumstantial evidence for a rational juror to make an inference, like Ouellette.

Here, the Court determined that Burnett only showed signs of intoxication by alcohol—nothing else. The odor of alcohol was present on his breath, he had slurred speech and he failed the field sobriety tests. The fact that police later found pills that may have been hydrocodone was irrelevant because “there was no evidence as to what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the symptoms of intoxication Burnett was experiencing were also indicative of intoxication by hydrocodone.” These criteria were the critical elements that were present in Ouellette but not in Burnett’s case. Accordingly, the court held the jury charge in Burnett’s case to be erroneous because it did not apply the law to the evidence presented at trial and it constituted harmful error.

Takeaways…

In any DWI case, if there is no evidence presented at trial that would suggest intoxication by drugs or vice versa by alcohol, then the defense should ask for the statutory language in the jury charge to be limited to only facts produced. Additionally, the mere fact that drugs are found is not enough, by itself, to have such language in the jury charge. If Burnett had not objected to the full statutory definition of intoxication, he could have been finally convicted based on evidence never presented at trial. (In Judge Richardson’s concurring opinion he also notes that there were no objections made to the evidence in Ouellette).

Judge Richardson Concurring Opinion

Presiding Judge Keller Dissenting Opinion

Judge Yeary Dissenting Opinion

Compelled Testimony Conti Allen

Use of Compelled Testimony from Foreign Trial Violates Fifth Amendment

By | 5th Amendment | No Comments

Is Use of Compelled Testimony of a Defendant in Trial a Violation of the Fifth Amendment Right Against Self Incrimination?

Compelled Testimony Conti AllenThe Second Circuit Court of Appeals recently handed down an opinion concerning the use of compelled testimony in an American trial. In Allen and Conti, the Court was asked to determine whether previous compelled testimony by a foreign government, which was later used against the defendant in a criminal prosecution in the United States, violated the Fifth Amendment.

United States v. Allen, 2017 U.S. App. LEXIS 12942 (2d Cir. July 19, 2017)

The Facts—District Court Found that a Witness’s Review of the Defendant’s Compelled Testimony Did Not Taint the Evidence

In 2013, both U.K. and U.S. law enforcement agencies began investigating wire fraud and bank fraud at the London office of Coöperative Centrale Raiffeisen-Boerenleenbank B.A. (“Rabobank”). Anthony Conti and Anthony Allen, previous employees of Rabobank in London as well as U.K. citizens and residents, were compelled to provide testimony during interviews with the U.K. agency, the Financial Conduct Authority (“FCA”). Although Conti and Allen were provided limited immunity from criminal prosecution, pursuant to U.K. law, refusing to testify would have resulted in imprisonment.

The FCA pursued Conti and Allen’s coworker, Robson; however, without reason, the FCA dropped its case against Robson. Soon thereafter, the Fraud Section of the United States Department of Justice pursued criminal prosecution of Robson. Soon after Robson pled guilty, he became an integral cooperator of the investigation and a grand jury indicted Allen and Conti.

During the 2015 trial, the government used the prior compelled testimony that Conti and Allen had given in the U.K. against them in the American trial. This resulted in convictions for both Conti and Allen with a year-and-a-day’s imprisonment and two years’ imprisonment respectively.

Pursuant to Kastigar v. United States, 406 U.S. 441 (1972), the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against self-incrimination, by providing the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.

During the FCA’s investigation of Robson, the FCA permitted Robson to review and take notes of Allen and Conti’s compelled testimony. Robson’s review of such testimony impacted his personal testimony, which was the sole source of Agent Weeks’ testimony. The District Court concluded looking to Second Circuit precedent, that Robson’s review of the defendants’ compelled testimony did not taint the evidence he later provided.

The Court of Appeals Reversed the District Court’s Decision—Holding the Prosecution Violated the Fifth Amendment Right When it Used a Tainted Witness Against the Defendants

On appeal, the defendant’s argued that the Government violated their Fifth Amendment rights when it used their own compelled testimony against them in the form of tainted evidence by Robson. The defendants specifically alleged that the Government applied the wrong legal standard in analyzing whether the evidence was tainted by Robson’s review of their compelled testimony.

Every individual accused in an American criminal prosecution has a personal trial right to be free from self-incrimination as guaranteed by the Fifth Amendment. Use of compelled testimony against the accused during trial is a violation of this right, including when a foreign government, pursuant to its own law, compels such testimony. The Court exemplified that precedent shows that inculpatory statements obtained overseas must be made voluntarily. The Court explains that even if the testimony was lawfully compelled pursuant to the laws of a foreign power, the Fifth Amendment flatly prohibits the use of compelled testimony to secure a conviction, as it would be a violation of the right against self-incrimination.

Further, when the government uses a witness who has been exposed to the compelled testimony of a defendant, it is required under Kastigar to prove, at a minimum, that this review did not alter or affect the evidence used by the government. Here, the prosecution used evidence of the defendant’s compelled testimony through a tainted witness who acted as an integral part of the prosecution’s investigation.

Here, the court found that law enforcement officers in the U.K. undoubtedly compelled the defendant’s testimony. As a result, the court held that the Fifth Amendment prohibited the government from using the defendants’ compelled testimony—in any way—against them at trial in the United States.

Scholarship Winners BHW 2017

2017 Scholarship Winners | Veteran Law Student & Military Dependent

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Barnett Howard & Williams PLLC Announces the Recipients of the 2017 Scholarship Awards

 

Scholarship Winners BHW 2017This was the second year for our law firm to offer scholarships – one to an undergraduate, and one to a law student. In honor of the sacrifices of our military veterans, we wanted to connect the scholarships to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2017 Winner – Military Veteran Law Student Scholarship

The winner of the 2017 Military Veteran Law Student Scholarship is:

LCDR OMAR HASAN

Omar Hasan is a Navy veteran with over 20 years of active service to our country. LCDR Hasan is set to attend Regent Law School in VA Beach, VA. Congratulations Omar Hasan. Fair winds and following seas and best wishes as you continue toward your law degree.

2017 Winner – Military Dependent Scholarship

The winner of the 2017 Military Dependent Undergraduate Scholarship is:

JESSICA OLMEDO

Jessica Olmedo is a US Army dependent whose father is served, among other places, in Operation Just Cause in 1989. Ms. Olmedo currently attends Texas Christian University in Fort Worth, Texas and is pursuing a degree in Business Information Systems and Supply Chain Management. Congratulations Jessica Olmedo. Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

psychosexual evaluation sex offender risk assessment

Psychosexual Evaluations: A Risk Assessment for Sexual Allegation Cases

By | Sex Crimes | No Comments

psychosexual evaluation sex offender risk assessmentA psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options that will be most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

  1. Clinical interview
  2. Psychometric tests
  3. Physiological assessment of sexual arousal
  4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.