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Apr06
Love1
Locked file folder with chain and padlock, text overlay stating "Defense attorneys may not provide discovery to clients under 39.14" and "In Re Powell (CCA, 2017)", relevant to legal insights on the Michael Morton Act and attorney-client discovery obligations.

Court Rules on Discovery to Clients under the Michael Morton Act (39.14)

ByCriminal Defense

May a Court Order that an Attorney Can Provide Copies of Discovery to a Client Pursuant to the Michael Morton Act?

Defense attorneys may not provide discovery to clients under the Michael Morton Act 39.14, legal document secured with a chain and lock, In re Powell (CCA, 2017), Howard Lotspeich Alexander & Williams, PLLC logo.The Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus in regard to a discovery dispute arising out of Article 39.14 of the Texas Code of Criminal Procedure —otherwise known as the Michael Morton Act. The central issue facing the Court was whether the relator (a party who has standing and on whose behalf a writ of mandamus is petitioned for by the state as plaintiff) satisfied the criteria to justify mandamus relief.

See the full opinion in In re Powell v. Hocker (NO. WR-85,177-01)

The Facts—Trial Judge Granted Defendant’s Motion to Release Discovery.

Ellen Wilson, the real party of interest, was charged with misdemeanor DWI in the County Court at Law in Lubbock, Texas. Wilson’s attorney obtained discovery pursuant to Article 39.14 and filed a motion to “release” Wilson from the prohibition contained in subsection (f) of the statute. Subsection (f) of Article 39.14 permits a defense attorney to “allow a defendant . . . to view the [discovery] information provided under this article,” but the defense attorney “may not allow” the defendant “to have copies of the information provided[.]”

In the brief filed in support of the motion, Wilson’s attorney prayed that the County Court at Law would “permit defense counsel to give her a properly redacted copy of the requested items of the State’s evidence.” The brief did not maintain that Wilson had been unable to “view” the discovery in the attorney’s possession, as the statute expressly permits. Rather, it asserted that it was important for Wilson to be able to obtain her own copies in order to effectively help counsel prepare her defense. The trial judge granted Wilson’s motion, but stayed the effect of his ruling pending the State’s application for writ of mandamus.

The Court of Criminal Appeals Conditionally Granted Mandamus Relief—Directing the County Court at law to Rescind its Order Permitting Defense Counsel to Provide Defendant a Copy of the Discovery Materials that were Provided by the State Pursuant to Article 39.14.

In order for a court to determine whether mandamus relief is appropriate, the relator must establish two criteria. State ex rel. Young v. Court of Appeals for the Sixth Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relator must demonstrate that he has no adequate remedy at law to rectify the alleged harm. Id. Additionally, the relator must have a clear right to the relief sought. Id. In other words, the relator must show that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Id.

The Court determined that the State had no right to appeal Respondent’s order, which permitted trial counsel to provide the real party of interest with a copy of the discovery materials. More notably, Respondent did not seriously contest this issue. As such, the Court held the first criteria to be satisfied for mandamus relief.

Next, the Court determined the act was ministerial in nature. An act may be deemed “ministerial” when “the facts are undisputed and, given those undisputed facts, the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment[,]”—even if a judicial decision is involved. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (citations omitted). Furthermore, the Court determined this rule extends to cases of first impression.

The Court found Article 39.14 to be clear, unambiguous, and indisputable. Subsection (f) of the statute expressly and unequivocally prohibits the attorney, or her agent, to “allow” the defendant “to have copies of the information provided[.]” Respondent argued that Subsection (f) only speaks to whether the defendant’s attorney may supply him with copies of the discovery materials; it does not prohibit a trial court itself from providing copies. The Court rejected this argument because not doing so would circumvent the unqualified prohibition in subsection (f).

Next, Respondent argued that subsection (e) contemplates scenarios when a trial court may order disclosure of such materials. Subsection (e) expressly prohibits “the defendant” from personally disclosing discovery material to a third party. Respondent argued that this prohibition seems to assume that the defendant would have copies of those materials in the first place to disclose. The Court rejected this argument explaining that a defendant could “disclose” the substance of discovery materials to a third party by memory, having been allowed to “view” them pursuant to Subsection (f).

Rejecting all of Respondent’s arguments, the Court determined that the trial court lacked authority to enter an order that effectively abrogated Article 39.14. As such, the Court conditionally granted mandamus relief directing the County Court at Law to rescind its order.

This opinion solidifies what we already knew about Article 39.14 and have been telling clients all along – defense attorneys MAY NOT provide discovery materials to our clients.  And now, not even if the trial court orders it.

Mar30
Love4
How to request your military service records with visible military branch seals and organized file folders in the background.

How to Request a DD-214 or Other Military Service Records

ByVeterans

Getting a DD-214, Service Medical Records, or Other Military Service Information for Your Client

How to request your military service records with military branch insignias and file folders in the background.Once a United States servicemember has been released from active duty, they are issued a DD-214. The DD-214 is a critical document, in that it records the member’s discharge classification (e.g. Honorable, General, Other than Honorable, Bad Conduct, Dishonorable), lists their tours of foreign duty, and assigns a re-entry code. The DD-214 is proof of service, and is used to verify eligibility for government benefits, including the GI Bill, VA loan, and others. Additionally, whether applying for a home loan, renewing a driver’s license, or applying for a college scholarship, the DD-214 is very useful.

In my line of work, I often need to see my client’s DD-214 in order to show the prosecutor that my client is an honorably discharged veteran or to help them apply for a Veteran’s Court program. Additionally, service medical records and other administrative documents contained within an Official Military Personnel File (OMPF) are often useful when defending a criminal case.

Use Standard Form 180 (SF-180) to Apply for Military Service Record Documents

TheStandard Form 180, Request Pertaining to Military Records (SF-180) is used to request information from military records. Certain identifying information is necessary to determine the location of an individual’s record of military service. When filling out the SF 180, you should try to answer each item on the form, if possible. If you do not have and cannot obtain the information for an item, write “NA,” meaning the information is “not available,” but try to include as much of the requested information as you can. Incomplete information on the SF 180 can delay response time. To determine where to mail the request form, look at Page 2 of the SF-180 for record locations and facility addresses.

What Information Do I need in Order to Make a DD214 Request?

The following information is required to request military service records, including a DD-214:

  • Veteran’s complete name used while in service
  • Service number (usually, the Social security number, until recently when the DOD moved to a new DOD ID#)
  • Branch of Service.
  • Dates of entry and Date of release of service
  • Date and place of birth

How Long Does it Take to Receive Military Records and How Much Does it Cost?

I can only speak from experience. Every time I have requested military records from one of my clients, using the SF-180, I have received the requested personnel records within 45 days from the applicable records center. If you fill out as much of the SF-180 as possible, then the chances are that you will receive a response from the records center faster than if you leave items blank. Additionally, if you are request personnel documents on behalf of a military veteran client, then you’ll want to include a Power of Attorney with your request. I typically have the client sign the request form but then use my office address as the place to mail the records. You can check the status of your records request by telephone at NPRC Customer Service Line (314) 801-0800.

There is no cost, typically, for receiving a DD-214, medical records, or a basic OMPF. Some records will involve a fee, but you will be contacted if that is the case, prior to them sending you the records.

Expedited Service for Military Service Records

If you need records immediately, for a funeral, trial, or something urgent, you should try using the service (eVetRecs) from the National Archives. They strive for a 2-day turnaround on urgent requests.  You could also use this service instead of the SF-180 if you choose, even if your request is not urgent.

 

If you are a retired or discharged military member and you do not have several copies (or an e-copy) of you DD-214, you should download the SF-180 and request your records today. You never know when you’ll need them.

*PLEASE NOTE: Our firm only assists current clients in retrieving military service records as needed for their cases. Do to time limitations, we cannot help others in getting their military records. But hopefully, some of the information on this article will help you get your records.

Mar27
Love1
Officer conducting a pat down search on a suspect during a traffic stop, with overlay text discussing the legal implications of "acting suspicious" in relation to Terry stops, referencing United States v. Monsivais (5th Circuit, 2017).

“Acting Suspicious” is Not Enough to Justify a Pat Down Search

BySearch & Seizure

Does an Officer’s Testimony That a Person was “Acting Suspicious” Establish Reasonable Suspicion to Support a Terry Stop?

"Police officer conducting a pat down search on a suspect, with text overlay discussing reasonable suspicion standards from United States v. Monsivais (5th Circuit, 2017), emphasizing that 'acting suspicious' does not justify a Terry search."The Fifth Circuit Court of Appeals recently handed down an opinion concerning the reasonable suspicion standard required for law enforcement officers to conduct a Terry stop—an exception to the warrant requirement. The issue facing the Court was whether merely “acting suspicious” is enough to establish reasonable suspicion to justify a law enforcement officer to initiate a Terry stop.

United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017)

The Facts — District Court Found the Terry Stop to be Lawful Based On the Defendant’s Demeanor, Remarks, and for Officer-safety Reasons

While on patrol in a marked police car, two officers observed Monsivais walking down the side of the I-20 interstate away from an apparently disabled truck. The officers stopped in front of Monsivais and activated the car’s emergency lights in order to ask Monsivais if he needed roadside assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going and if he needed any help. Monsivais told the officers he was heading to Fort Worth (even though his vehicle was pointed towards Abilene). During questioning, Monsivais appeared nervous and repeatedly placed his hands in his pockets; however upon the officer’s request, Monsivais removed his hands. Additionally, Monsivais responded politely to all of the officers’ questions. After approximately four minutes, one of the officers advised Monsivais that he was going to pat Monsivais down for weapons because of his behavior, inconsistent statements and for officer safety reasons. Shortly thereafter, Monsivais told the officer that he had a firearm in his waistband. The officer seized the firearm and Monsivais was later charged with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm and other evidence, arguing that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him. The district court denied Monsivais’ motion to suppress, holding only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer-safety reasons.”

The Court of Appeals Reversed the District Court’s Decision—Holding the Officers Lacked a Basis to Reasonably Suspect Monsivais of a Criminal Act

The Court first determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer converted the roadside assistance “welfare check” into an investigative detention—otherwise known as a Terry stop.

“The Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual.” However, pursuant to a narrow exception announced in Terry v. Ohio, 392 U.S. 1, 88 (1968), police officers may briefly detain a person for investigative purposes if under the totality of relevant circumstance they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).

Here, the Court found that while Monsivais’ behavior might not have been typical of all stranded motorists, the officers could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him.

The court explained that Monsivais’ nervous demeanor alone was insufficient to create reasonable suspicion of criminal activity in order to justify a Terry stop. In fact, the Court gives little or no weight to an officer’s statement that a suspect appeared nervous. United States v. Portillo–Aguirre, 311 F.3d 647, 656 (5th Cir. 2002). Moreover, the Court held that evidence of Monsivais placing his hands in his pocket is of little significance. The Court noted that any number of people walking down the street might have their hands in their pockets. Additionally, the Court determined there were no inconsistencies in Monsivais’ story; and, even if there were, the inconsistencies would not connect Monsivais with any reasonably suspected unlawful conduct. Moreover, Monsivais’ choice to ignore the officers’ presence by merely walking past them, not fleeing, did not give rise to criminal activity.

In conclusion, the officer testified that he never suspected Monsivais was involved in any criminal activity, but rather that Monsivais was just acting “suspicious.” As such, the court found that the officer seized Monsivais without reasonable suspicion and that the evidence obtained from the unlawful seizure should have been suppressed.

Mar13
Love3
Illustration of a police officer arresting a person beside a car, with the text "MAY I RESIST AN UNLAWFUL ARREST?" prominently displayed, related to legal discussions on resisting unlawful arrests in Texas.

May a Person Resist an Unlawful Arrest in Texas?

ByCriminal Defense

Resisting Arrest: How is it defined under Texas law?

Person being arrested by a police officer near a car, with the text "MAY I RESIST AN UNLAWFUL ARREST?" prominently displayed, relevant to Texas law on resisting arrest and legal defense insights from Howard Lotspeich Alexander & Williams, PLLC.In general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from:

  • Effectuating an arrest;
  • Carrying out a search; or
  • Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

  • Preventing a cop from handcuffing you;
  • Struggling against an officer who is trying to arrest you; and
  • Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated – either by statute or by judicial decision – the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically statesit is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.

Mar09
Love5
Pass out or blackout text overlay on image of man lying on couch surrounded by party remnants, illustrating the effects of alcohol on memory in sexual assault contexts.

Passout vs. Blackout: How Alcohol Can Affect Memory (Voice for Defense Article)

BySex Crimes

Alcohol and Memory: An Interview with Texas Forensic Psychologist, Dr. Kelly Goodness, Ph.D

Person lying on a couch surrounded by empty drink containers and party debris, with overlay text "PASS OUT or BLACKOUT HOW ALCOHOL CAN AFFECT MEMORY," relevant to discussions on alcohol's impact on memory in sexual assault cases.As you can probably imagine, many criminal cases involve events that occur when people are intoxicated. This can be especially true for cases involving allegations of sexual offenses. In these alcohol-fueled situations, the issue of memory can play a large part in the case. When we encounter intoxication and memory issues in sexual assault cases, we often employ the assistance of a forensic psychologist to serve as either an expert consultant or expert witness.  One of the best in her field is Dr. Kelly Goodness of Keller, Texas. Dr. Goodness is an expert in alcohol and the brain, including the difference between “pass out” and “blackout” evidence.  She is one of the most highly employed experts for alcohol-related sexual assault cases involving members of the U.S. Military. What follows is an interview that we conducted with Dr. Goodness regarding how alcohol can impact a person’s memory and how it can apply to the sexual assault context.
______________________

Q: Dr. Goodness, How is Alcohol Related to Memory?

A: Alcohol is a potent amnestic agent. Beginning with just one or two drinks, alcohol can produce detectable memory impairments. As the dose increases, so does the potential magnitude of the memory impairments, all the way up to the total inability to recall events during a drinking episode, otherwise known as a blackout.

Q: How does alcohol disrupt memory formation?

A: There are three general processes involved in long-term memory formation, all of which can be impacted by alcohol. First, information must be perceived by one or more of the senses (sight, hearing, taste, smell, and touch) to form a sensory memory which can last a few seconds. Second, if concentrated on for more than about eight seconds, sensory memory can be transferred to short-term memory to be retained. Short-term memory can last from seconds to minutes, depending on distractions and ability to rehearse or repeat the information. Third, once some kind of association or sufficient repetition has occurred; information can be consolidated, encoded and transferred from short-term memory into long-term memory which then makes the information available for later recall.

Alcohol, affects all stages of the memory process, but the primary effect is on the transfer of information from short-term to long-term memory storage. The drinker can recall long-term memories that were established before they became intoxicated, but their ability to transfer information into long-term storage can begin to degrade with just one or two drinks. As the dose of alcohol increases, the impairment increases and can culminate in blackouts. When blackouts occur the individual can participate in complex activities and even very emotionally charged events that they later cannot remember.

Q: You mentioned blackouts. What exactly is a blackout?

A: Blackouts are periods of amnesia, caused by excessive consumption of alcohol, during which a person actively engages in behaviors, but the brain’s ability to create memories for what transpires is impaired or non-existent. This leaves holes in a person’s memory that can range from spotty recall for events of the previous night (or drinking episode) to the utter absence of memory for large portions of an evening. The person is still able to carry on conversations, engage in activities and respond to others. They just will not recall some or all of what occurred.

Q: Are there different types of blackouts that a person can experience?

A: Yes. There are En Bloc Blackouts and Fragmentary Blackouts. Blackouts are classified based on the extent of amnesia. The amnesia can be total (“en bloc”) or partial (“fragmentary”).

En Bloc blackouts are classified by the inability to later recall any memories from the intoxication period, even when prompted or given cues.

  • No matter what happens, you can never recall it.
  • The information was never recorded so recall is not possible.
  • Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed.
  • It is difficult to determine the end of this type of blackout as sleep typically occurs before they end.

Think of a loved one you have known who has Alzheimer’s. They may tell you what they had for dinner and five minutes later tell you the exact same thing. They never recorded the event of initially informing you in the first place, so they tell you again. En Bloc blackouts are essentially the same phenomenon – just with a different cause.

Fragmentary blackouts are characterized by the inability to recall some events from an intoxicated period, but not all events.

  • The person may be unaware that memories are missing until reminded by others of the existence of these “gaps” in memory.
  • Cues can help them remember at least some of what happened because at least some of the information actually was recorded.
  • They may have more snapshot type recall and it may not be in sequential order.
  • Research indicates fragmentary blackouts are far more common than en bloc blackouts and likely involve alcohol-induced deficits in contextual memory.

Q: Is a blackout different from passing out?

A: Yes, they are different. Although many people refer to “passing out” as going to sleep following ingestion of alcohol, when I say “pass out” in my testimony or describing the research, I am referring to the more formal definition as used in the field of alcohol treatment, in which a pass out is a loss of consciousness due to excessive alcohol intake. By definition, blackout and pass out are mutually exclusive: a blackout is amnesia for the events of any part of a drinking episode, without loss of consciousness. A person in blackout continues to interact and perform complex activities, but has amnesia for these events. A person who is passed out is unconscious and is not having any behavioral experiences to record.

Q: Can blackout and pass out co-occur?

A: Yes. Passing out and blacking out can co-occur. Under the right conditions, a person who consumed alcohol to the point of passing out can be awakened from sleep, engage in activities and have a blackout for that time period.

Q: Can you tell if someone is having a blackout?

A: Determining whether someone is in a blackout state from their behavior alone is next-to impossible. To outside observers, the person may appear to be aware and functioning well enough. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or serious aggression, with little or no recall. They can drive a car, have a normal conversation, or engage in sexual relations.

Even loved ones are unlikely to know. We know that the wives of alcoholics who are known to be prone to blackouts may only know their husband was blacked out when he does not recall information the next day.

Research designed to bring about blackouts shows that those who are in the midst of an En Bloc blackout can easily recall things that have occurred within the last 2 minutes, yet they cannot recall anything that occurs during the episode prior to this period.

Q: From your knowledge of the research on this topic, what causes blackouts?

A: Blackouts are caused by the selective effects of alcohol on specific brain systems and involve a breakdown in the production and utilization of proteins and neurotransmitters in the brain. Blackouts can occur from rapid consumption of alcohol, such as guzzling, chugging, or shots and are more likely with consumption of hard alcohol or the combination of hard alcohol and beer, versus beer alone.

Q: Is there a typical Blood-Alcohol Concentration (BAC) at which a blackout is likely to occur?

A: Blackout BAC’s are individual dependent, but we know the blood-alcohol level is typically very high (above 0.25) when a blackout occurs. Some recent studies indicate .28 to .30 as the median BAC at which blackout is likely to occur. Still, a person can experience a fragmentary blackout with a BAC as low as .08 and an en bloc blackout with a BAC of.14 and above. These can only be used as estimates.

Q: Is intoxication level synonymous with blackouts?

A: No. Intoxication depends not only on the blood alcohol level, but on the rate of increase and tolerance of the individual. One may have a blackout without appearing grossly impaired. One may be drunk with poor judgment and control but not blackout. This is why even eye-witnesses may be (and usually are) unaware that a person is having a blackout.

Q: Are there any known risk factors for blackouts?

A: Yes. The following are risk factors typically associated with alcohol blackouts:

  • Drinking on an empty stomach as there is less food to absorb alcohol
  • History of serious head injury
  • Heavy drinker – but to be sure – a blackout can happen with a single drinking episode and naïve drinkers are not immune
  • History of prior alcohol blackouts – past history of blackouts shows the person is vulnerable ad also can produce damage that predisposes the person to future blackouts
  • Genetic predisposition
  • Alcohol in combination with certain common drugs
  • Female

Q: Why are females more vulnerable to memory impairment when drinking?

A: Several reasons.

  • Females typically weigh less.
  • They also have less water in their bodies, which means that they cannot dilute the alcohol as well, which can result in a higher alcohol levels in the brain.
  • Females are more likely to skip meals to save calories when they drink which means there is less food in the stomach to help absorb alcohol.
  • Females are more likely to drink beverages that are higher in alcohol concentration such as wine and mixed drinks rather than beer.
  • Females have less of an enzyme in the gut that breaks down alcohol before it gets into the body. In fact, studies have shown that it takes much less alcohol for women to experience blackouts than for men.

Q: What does research indicate is the prevalence rate of blackouts?

A: Research shows that 50% of college-age drinkers experience blackouts. Further, one in four college students who drink will experience a blackout in a given year. Although blackouts commonly occur with alcoholics, blackouts also occur in 25% of social drinkers.

Q: How can we know if a blackout is real or feigned?

A: It is hard to know. However, we can look at the known risk factors I previously discussed to determine whether the person was at a legitimate risk of experiencing a blackout.

Q: How does a drinker usually know if they passed out or experienced a blackout?

A: The short answer is they often do not know – and they especially do not know for sure given holes in their memory. Passout or blackout experiences are deduced from the circumstances in which the drinker finds themselves once they rouse, or from the information they are provided by others, or a combination of both. Loosing time through passout or a blackout can be very disturbing to an individual.

Once they wake, begin to sober, or are confronted by information from their surroundings or facts alleged by others; the drinker does what we all do all the time – they try to make sense of their situation by filling in the blanks with what seems logical to them. Their efforts may lead them to inaccurate assumptions and conclusions. This can be particularly true when the drinker has personal (i.e., religious, moral, employment) reasons for being distressed by behaviors such as those involving sexual activity.

Q: Can you explain how you would distinguish between a blackout and a pass out?

A: The fact patterns must be considered. If a person is so intoxicated that they are rendered unconscious, it should take significant time to return to normal cognitive and motor functioning. On the other hand, if a drinker was able to get up, communicate generally coherently, engage in physical movement, but later could not recall doing so, a blackout is much more likely.

Q: In a sexual assault allegation, why is it significant that the complainant might have been in a blackout rather than passed out?

A: Many who have experienced a blackout presume they physically and mentally could not have initiated or participated in sexual activity since they have no memory of doing so and may conceptualize themselves as someone who would never engage in sex in that situation or perhaps even with that person. Moreover, the notion they may have engaged in sex may bring them great cognitive dissonance and angst. As such, they may jump to the conclusion that they were passed out which by definition (unconscious) would mean they could not have participated. In reality, those who are in a blackout can, and do, engage in very complex behaviors including initiating and participating in sexual activity they simply will not recall because the memory traces were not encoded. To be sure, a person in a blackout can continue to perform any number of complex behaviors including driving, making purchases, arguing, criminal activity, and importantly – initiating and engaging in sexual activity – making it sometimes vital for fact finders to understand the psychological science related to blackouts.

Q: Thank you for your time, Dr. Goodness. If someone wanted to retain you to review a sexual assault case, how would they go about doing that?

A: They can either email me at kelly.goodness@drgoodness.com or contact my office at (817) 379-4663 and we can go from there.
______________________

As you can see, alcohol can have a significant impact not only in the decisions that a person makes, but also in the way they remember those decisions. In the sexual assault context, this is particularly important because a complaining witness may engage in (and perhaps even initiate) sexual behavior and not remember what he or she did. Without a memory of the night’s events, the complaining witness might mistakenly believe that they were “passed out” when the sexual behavior occurred and that they were taken advantage of by an opportunistic assailant, when in all reality, they were an active and willing participant. Based on their words and actions, others around them, including their sexual partner, would have no idea that the person was experiencing an en bloc or fragmentary blackout.

Thank you to Dr. Kelly Goodness for her time an expertise in preparing this article. Dr. Goodness’s contact information is provided below:

Kelly R. Goodness, Ph.D
Clinical and Forensic Psychology
121 Olive Street
Keller, Texas 76248
www.drgoodness.com
Office: (817) 379-4663

________________

Brandon Barnett is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. He earned his J.D. from Texas Tech University School of Law and his LL.M. from George Washington University Law School. He is also a military judge in the Marine Corps Reserve and an adjunct professor at Texas A&M University Law School. He can be reached at barnett@bhwlawfirm.com.

Kelly Goodness, Ph.D. began her career as a clinical psychologist at the maximum security forensic hospital in Vernon, Texas. She entered private practice after learning lessons that could never be taught in a book and achieving recognition for her ability to identify and treat the factors that led individuals to be labeled the most dangerous and violent psychiatric patients in Texas. Dr. Goodness developed a thriving practice as a criminal litigation consultant and expert witness who feels privileged to offer her expertise in jury selection, case theory, expert testimony, and case presentation to the parties in state, federal and military cases worldwide with a special focus on homicide and sexual assault.

Mar06
Love4
PTD Pre-Trial Diversion program signage, Denton County, Texas, with Howard Lotspeich Alexander & Williams logo.

Denton County Pre-Trial Diversion Program (PTD)

ByDiversion Program

Pre-Trial Diversion (PTD) Denton County, Texas.  A Second Chance for First-time Offenders.

PTD Pre-Trial Diversion Denton County, TX, logo of Howard Lotspeich Alexander & Williams, PLLC, with a courthouse backdrop and landscaped area.When someone is charged with a criminal offense and is experiencing their first encounter with the criminal justice system, the process can be daunting. A first-time offender typically has two primary concerns: 1) Will I go to jail? and 2) Can I keep this offense from going on my record?

While there may be options available to keep a conviction off of a person’s record, the goal for most first-time (and one-time) offenders is to land in a situation making it possible to erase all records related to the arrest from existence. Under State law (Texas Government Code 76.011), counties are allowed to establish pre-trial diversion programs. Upon successful completion, these programs allow for certain first-time offenses to be discharged and ultimately expunged from an individual’s record.

Thankfully many counties across the State take into consideration the fact that a person has no prior history and may have just made a one-time mistake. Denton County, Texas is no different. First-time offenders that have been arrested for certain non-violent offenses may be eligible for a pre-trial diversion program in Denton County.

Eligibility for Pre-Trial Diversion in Denton Texas

To be eligible for a pretrial diversion program in Denton County, Texas an individual’s case must meet the following criteria:

  • The individual must be employed or enrolled in an accredited school
  • The individual charged must admit to guilt of the offense and accept responsibility
  • The individual must have had no prior arrests
  • The individual must report monthly to a probation officer
  • The individual cannot commit any new offenses and must abstain from the use of illegal drugs and alcohol

Also, ultimate discretion to allow a person to participate in a pre-trial
diversion program rests solely with the District Attorney. The District Attorney must approve of each applicant even if all criteria are met.

How Pre-Trial Diversion in Denton County, Texas Operates

Individuals participating in the pre-trial diversion program in Denton County are supervised by the Denton County Community Supervision Department (DCCSD). Individuals must pay a monthly supervision fee. DCCSD can and will tailor each program to each particular individual. A person may be required to participate in additional classes, community service or other rehabilitative programs as a result of his or her participation in the program. In addition, if any restitution has been assessed in favor of the victim in a case, repayment of that restitution could be made a condition of the program as well.  Typically, PTD lasts 12 months, but in some cases, it can be extended to 18 months.

Exceptions for Admission into the Denton County PTD Program

Because the District Attorney has ultimate discretion on allowing a person into the pre-trial diversion program, even a person who does not meet the minimum requirements may be allowed to enter into a pre-trial diversion.

The Final Result of Successfully Completing a Pre-Trial Diversion in Denton County, Texas

Upon successful completion of the Denton County Pre-Trial Diversion program, the District Attorney files a Motion to Dismiss the case and the case becomes eligible for an expunction.

FORT WORTH

Primary Location
930 W. 1st St., Suite 202
Fort Worth, TX 76102
817.993.9249

KELLER

*By Appointment Only
204 S. Main St #195
Keller, Texas 76248
817.482.6770

Feb17
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Clock face with the phrase "On the Clock" and text "Time Requirements on the State's Power to Certify a Juvenile as an Adult," relevant to juvenile law and certification processes in Texas.

On the Clock: Time Limits to Try a Juvenile as an Adult

ByJuvenile

Time Requirements on the State’s Power to Certify a Juvenile as an Adult

On the clock graphic illustrating time requirements for the state's power to certify a juvenile as an adult, featuring clock imagery and the logo of Howard Lotspeich Alexander & Williams, PLLC.Texas Family Code Section 54.02 gives the juvenile court the power to transfer its exclusive jurisdiction over a juvenile case to a district court. This transfer of jurisdiction allows the State to treat a juvenile as an adult for purposes of prosecution. Section 54.02 actually lays out two different processes for transferring juvenile cases to adult court. The first process is used in cases where the juvenile is under the age of 18 at the time of certification. The second, which is laid out in Section 54.02(j), is for those cases in which a person has turned 18 prior to the filing of the case in juvenile court. The Texas Court of Criminal Appeals recently upheld the time requirements placed on the power of the State to pursue post-18 certifications in Moore v. State(Case Opinion – 2017).

Section 54.02(j)’s Time Limits

Section 54.02(j) allows a juvenile court to transfer its jurisdiction to an appropriate district court for criminal proceedings if the person accused is 18 years of age or older at the time the petition is filed but was a juvenile at the time the offense was committed. During the transfer hearing, the State must prove by a preponderance of the evidence that “for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person or after due diligence of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person or the person could not be found.”

This section of the Family Code imposes on the prosecutors a duty to pursue cases in juvenile court whenever possible. In order to retain the power to prosecute cases after a person has aged out of the juvenile system, the State must show that the delay in prosecution was beyond its control. If it is unable to prove this, then the only choice available for a juvenile court in these situations is to dismiss the case.

The Issue in Moore v. State

In Moore, the accused was charged with Aggravated Sexual Assault of a Child. He was alleged to have committed the offense when he was 16 years of age. Due to a heavy caseload and an error in one of the police reports, the detective did not send the case to the District Attorney’s Office until after Moore had turned 18. The prosecutor filed a certification petition in the case over a year later when Moore was 19 years old. The juvenile court transferred the case to district court.

Moore pled in adult court and received 5 years’ probation on a deferred adjudication. He then appealed the case claiming that the juvenile court lacked the jurisdiction to transfer the case because the State did not prove that the delay in filing the case was beyond its control. The State first claimed that law enforcement should not be considered “the State” under Section 54.02(j). The State then argued that the court should consider whether the reasons for the delay were unconstitutional. According to this argument, if the reasons for the delay were not in violation of Moore’s constitutional rights, then the State should be allowed to proceed with the certification regardless of who was to blame for the postponement in filing charges.

The Court’s Ruling

After considering the arguments of both sides, the ruling of the Court of Appeals, and the case law presented by the parties, the Court of Criminal Appeals ruled on the case. First, the Court held that the term “the State” includes law enforcement and prosecutors collectively. The Court pointed out that the law consistently includes law enforcement in its use of this term.

The Court then dismissed the State’s notion that the requirements of Section 54.02(j) be treated like a claim of speedy trial, due process, or statute of limitations. The Court explained that the reason for the requirements in Section 54.02(j) is to limit the power of the State to prosecute a person as an adult for something that happened when he was a juvenile. In order for an exception to be made to this general rule, the State must prove that it was not at fault for the delay in prosecution.

Conclusion

The Court of Criminal Appeals’ decision in Moore is consistent with the Texas Supreme Court’s rulings in other cases involving juvenile certifications. The courts are clear that juvenile cases should be handled in juvenile court when possible. This means that detectives and prosecutors working juvenile cases must be diligent in giving these cases the proper priority so that an accused juvenile does not age out of the system before his case can be heard by the juvenile court. In any case in which prosecution is delayed until after a person’s 18th birthday, the State will be required to prove that the reason for this lag time was beyond its control. And if the State is unable to meet this requirement, then the courts will prevent further prosecution in these cases.

Feb09
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Police interrogation of juveniles with focus on rules for admissibility, featuring a table and chairs in a dimly lit setting, relevant to juvenile justice procedures in Texas.

The Admissibility of Juvenile Statements When Taken By Police

ByJuvenile

Police interrogation of juveniles, rules for admissibility, empty interrogation room with table and chairs, HLAW logo in bottom right corner.The juvenile justice system in Texas is a hybrid system which incorporates major elements of the adult criminal system, while maintaining separate rules and procedures to ensure that juveniles are not treated or labeled as criminals. In keeping with this philosophy, there are some special rules that apply when police officers take statements from juvenile suspects. This article will explain these rules and when they apply.

Two Types of Juvenile Statements

There are two types of statements: those taken as a result of custodial interrogation and those that are taken without custodial interrogation. There are different rules that apply, depending on which type of statement it is.

Voluntariness of the Statement

Historically in America, confessions have been looked at cautiously. This is because the police interrogation process has always been thought to be coercive by its very nature. The primary concern when viewing a statement given by a suspect is voluntariness. Therefore, no statement can be used in court unless it was voluntarily given. This voluntariness requirement applies to juvenile statements too. For noncustodial statements, voluntariness is the only requirement.

When looking at whether a juvenile statement was voluntary, the courts look at the totality of the circumstances. This means that the court will evaluate the situation including a child’s age, experience, background, education, intelligence, and their capacity to understand their rights and the consequences of waiving them. If, after considering all of the relevant factors in a particular case, the court determines that a noncustodial juvenile statement was voluntary, then it will be admissible in court against that juvenile.

Custodial Interrogation

A police officer that takes a juvenile’s statement as a result of custodial interrogation must not only ensure that the statement was voluntarily given, but also must comply with specific rules set out in the Texas Family Code. But first, you must ask two threshold questions: (1) Was the juvenile in custody? and (2) Was the juvenile being interrogated?

(1) Was the Juvenile in Custody?

Texas Family Code Section 51.095(d) considers a child to be in custody if he is in a juvenile detention facility, is in the custody of a police officer, or if he is in CPS custody and suspected of engaging in delinquent conduct. The Texas Court of Criminal Appeals decided that “in custody” means when a reasonable person, under the circumstances, would believe that his freedom was restricted to the point of a formal arrest. SeeDowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). The Texas courts use a “reasonable innocent child” standard when looking at juvenile cases. SeeIn the Matter of L.M., 993 S.W.2d 276 (Tex. App.—Austin 1999). Juveniles are not in custody, in the eyes of the Texas courts, when they are told by police that they are not in custody and are free to leave and at the end of the interview they are actually allowed to leave. See In the Matter of V.M.D., 974 S.W.2d 332 (Tex. App.—San Antonio 1998).

(2) Was the Juvenile Being Interrogated?

If a child is in custody at the time a statement is taken, then you must look to see if the statement was the result of interrogation. The United States Supreme Court ruled that interrogation includes any questioning by a police officer and any speech or actions that are reasonably likely to get an incriminating response. See Rhode Island v. Innis, 446 U.S. 291 (1980).

Special Rules for Custodial Interrogation Written Statements

If a child is in custody and interrogated, then special rules must be followed before his written statement will be admissible in court. These rules are laid out in Texas Family Code Section 51.095(a)(1).

  • Before a juvenile in custody is interrogated, he must first be taken to a magistrate. The magistrate must advise the juvenile of his rights without the police officer being present.
  • After being warned of his rights and agreeing to waive them in front of a magistrate, the child can then be questioned by the police officer outside of the magistrate’s presence.
  • He can write a statement if he chooses. Before the juvenile signs his statement, however, he must be taken back in front of the magistrate.
  • Without the police officer being present, the magistrate will review the statement with the child and determine if he understands the statement, voluntarily gave it, and voluntarily and intelligently waived his rights.
  • Once the magistrate makes these determinations, the child can sign his statement in front of the magistrate.

Special Rules for Custodial Interrogation Oral Statements

The rules for making a juvenile’s custodial interrogation oral statement admissible in court are enumerated in Texas Family Code Section 51.095(a)(5).

  • The statement must be recorded by an electronic recording device by an operator who is competent to use the device.
  • All voices on the recording must be identified.
  • The recording device must be capable of making an accurate recording.
  • The recording of the child’s statement must be accurate and unaltered.
  • Before the child gives the statement, the recording must show the magistrate giving the juvenile his warnings and the juvenile must waive each right on the recording.
  • The magistrate may request that the police officer, after the interrogation is finished, bring the child and the recording back to the magistrate so the magistrate can review the recording with the child to ensure the statement was voluntarily given.

Exceptions for Oral Statements

Texas Family Code Section 51.095(a)(2)-(4) lays out the exceptions to the requirements for oral statements made while a juvenile is the subject of custodial interrogation. If any of these exceptions applies, then the special rules for oral statements listed above do not have to be complied with. These exceptions are: statements of fact made by the juvenile which are found to be true and tend to establish his guilt, res gestae statements, and statements made in open court or before a grand jury.

Conclusion

The juvenile system in Texas is intentionally separate and distinct from the adult criminal system in order to prevent treating children as if they are miniature criminals. Likewise, there are special rules that apply in some circumstances when a police officer takes a statement from a juvenile suspect. If a juvenile gives a statement without being the subject of custodial interrogation, then the courts will look at the totality of the circumstances to determine if that statement was given voluntarily. If so, then it will be admissible in court against the juvenile. If, however, the child was in custody and subject to interrogation, then these special rules must be followed in order for the statement to be admissible. These rules involve taking the child before a magistrate to be informed of his rights as opposed to being warned by the police officer. If these rules are violated, then the statement will be deemed to be inadmissible.

Feb06
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Texas Occupational Drivers Licenses with emphasis on restrictions and requirements, checklist graphic, relevant to DWI legal context, Howard Lotspeich Alexander & Williams branding.

Texas Occupational License Restrictions and Requirements (and why they matter)

ByDWI

What You Can, Should, and Must Do While You are Driving on an Occupational Drivers License in Texas

Texas occupational driver's licenses with emphasis on restrictions and requirements, checklist with checkmarks, and pencil, representing legal guidelines for DWI-related licenses from Howard Lotspeich Alexander & Williams, PLLC.If you’ve received an occupational license related to a DWI ALR suspension (blood or breath test refusal or failure) in Texas, the judge who granted you that license likely included several restrictions and requirements you must follow. Those requirements can be found in the order granting your occupational license. You should have that order handy because Texas Transportation Code Section 521.250 requires you to possess a certified copy of the order when you drive. In fact, it’s a criminal offense not to possess a certified copy (we’ll revisit that below.)

Learn About Your Restrictions and Requirements

It all starts with the order that the judge signed. Review it. When reviewing the order granting your occupational license, you will find various restrictions and requirements. Restrictions typically limit your time, location and purpose of travel. In some scenarios, people are restricted to use an occupational license only when driving a vehicle equipped with an ignition interlock device. Other requirements can vary. They often include (but are not limited to) keeping a travel logbook, no traffic citations, no radar devices, etc. Specifically, however, Texas Transportation Code Section 521.245 requires the judge to require the person attend some form of an alcohol dependency program in the order granting occupational license. The order can also require you to submit proof of attendance to the court.

What Happens if Fail to Follow The Occupational Drivers License Restrictions or Requirements?

Texas Transportation code 521.253 says:
(a) A person who holds an occupational license commits an offense if the person:
…..(1) operates a motor vehicle in violation of a restriction imposed on the license; or
…..(2) fails to have in the person’s possession a certified copy of the court order as required under Section 521.250.
(b) An offense under this section is a Class B misdemeanor.
(c) On conviction of an offense under this section, the occupational license and the order granting that license are revoked.

What about not complying with the requirement for attending an alcohol dependency program? Per Texas Transportation Code Section 521.245, judges have the authority to revoke the occupational license and impose an additional 60-120 day suspension. That additional suspension is costly, too. Unlike the original DWI ALR suspension where you could apply for an occupational license, there is no option for another occupational license if you were granted one and failed to comply with this requirement.

Don’t Run Afoul of the Occupational DL Rules or Restrictions

So, the suggested practice here is simple:

  1. Have a certified copy of the order granting your occupational license.
  2. Read it carefully and educate yourself about the restrictions/requirements involved.
  3. Comply with said restrictions/requirements for the duration of your occupational license.

If you have questions about your occupational license, contact your attorney for assistance. If you don’t have an attorney, the attorneys at Barnett, Howard & Williams, PLLC are only a phone call away.

Jan27
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Community caretaking police function graphic featuring a police car on a highway, with text referencing Byram v. State (2017) and ABA standards for criminal justice.

Community Caretaking Function: Police May Stop without Reasonable Suspicion

ByDWI

Community caretaking police function graphic featuring a police car, case citation for Byram v. State (2017), and quote on police aiding individuals in danger of physical harm, relevant to legal standards in DWI cases.In November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a “hunched over” passenger in a vehicle was not enough to invoke the police “community caretaking” function to allow the police to initiate a traffic stop without reasonable suspicion of a violation.  The 2nd Court reversed the DWI conviction and remanded the case back to the trial court. The State appealed this decision to the Texas Court of Criminal Appeals, which issued its opinion today.

When May the Police Invoke the “Community Caretaking” Function to Make a Stop or Detention Without Reasonable Suspicion?

Byram v. State (Tex.Crim.App. 2017)

In this case, State argued that the police officer was engaged in his “community caretaking” function when he pulled the driver over. The State contends that this was a proper exercise of police authority and that the primary purpose of the stop need not be to investigate any alleged violation.

Reviewing the facts in the light most favorable to the trial court’s ruling (denying the suppression motion), the CCA agreed with the State and explained its view on the Community Caretaking function:

Local police officers frequently engage in “community caretaking functions,” totally divorced from the detection, investigation, and acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). However, because the reasonableness of a community-caretaking seizure sprouts from its dissociation from the competitive enterprise of ferreting out crime, “a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non–community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276-277 (Tex. Crim. App. 2002).

The Court went on to lay out a two-step test for determining whether an officer may properly invoke his community-caretaking function:

  1. whether the officer was primarily motivated by a community-caretaking purpose; and
  2. whether the officer’s belief that the individual needed help was reasonable.”*

*The standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver. Wright, 7 S.W.3d at 151.

In this particular case, the CCA held, “[the officer] saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his
question went unheeded. This is the sort of ‘sound, commonsense police work that reason
commends, rather than condemns.'”