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Aug 09
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2016 Scholarship Winners BHW

2016 Scholarship Winners | Veteran Law Student & Military Dependent

By Scholarship

Texas Dog Bite Laws: Criminal Penalties for Dog Owners

2016 Scholarship Winners BHW

This was the first year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected 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.

2016 Winner – Military Veteran Law Student Scholarship

The winner of the 2016 Military Veteran Law Student Scholarship is:

JAMES CROWDER

James Crowder is a Marine Corps veteran that served in Operation Enduring Freedom. Mr. Crowder currently attends University of Houston Law Center. Congratulations James Crowder. Best wishes as you continue toward your law degree.

2016 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

AMANDA OBLANDER

Amanda Oblander is a US Navy dependent whose husband is currently serving in Coronado, CA. Mrs. Oblander currently attends the University of Phoenix and is pursuing a degree in marketing. Congratulations Amanda Oblander. 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

Aug 04
Love2
Deportation Crime Enhancement

Enhancement for Crimes Committed Deportation Illegal Reentry into the US

By Sentencing

Deportation Crime EnhancementWhat happens when someone who illegally enters the country commits a crime? Further, does it matter is that person was previously deported from the United States? Does federal law provide for sentencing enhancements to extend the prison terms for wrongdoers in this position? The answer is yes—and no. Read on to see how the Fifth Circuit Court of Appeals analyzes federal statutes and sentencing guidelines that could support such an enhancement for the defendant, but decides against doing so.

US v. Rodriguez (5th Circuit, 2016)

A 2002 Theft and Deportation Set the Stage

In 2002, Benito Sanchez-Rodriguez, an “undocumented immigrant,” was convicted in Florida for “Dealing in Stolen Property,” a violation of a state law. Pleading guilty at trial, Rodriguez was sentenced to three years’ imprisonment, which was suspended for three years’ probation. Six months later, he was deported to Mexico because he had no legal status to remain in the US. Over a decade later, in 2014, Rodriguez was arrested for DWI in Texas. While under arrest, the federal government charged him will illegal entry into the US. Ultimately, Rodriguez was indicted on one count of illegal reentry into the US, a violation of federal statute 8 U.S.C. § 1326(a) and (b)(1).

Rodriguez Faces Criminal Charges, Again

In August of 2015, Rodriguez plead guilty to the illegal entry indictment and the district court accepted his plea. Before the sentencing phase, a US Probation Officer prepared a “pre-sentence investigation report” (“PSR”), relying upon the United States Sentencing Guidelines (“USSG”). The PSR assigned Rodriguez base offense level of 8, which was raised by 8 additional levels because of the 2002 “Dealing in Stolen Property” conviction (an aggravated felony qualifier), for a total base offense level of 16. U.S.C. § 2LI.2(b)(1)(C). The PSR added that because Rodriguez took responsibility by entering a guilty plea, the total base offense level was reduced by 3, for a final total of 13. The PSR recommended that with a base offense level of 13, Rodriguez should face between 24 to 30 months in federal prison. Rodriguez objected both on the record and in writing, arguing that the 2002 conviction was not an aggravated felony qualifier, however, the district court adopted the PSR’s recommendations. Accordingly, he was sentenced to 27 months’ imprisonment.

Rodriguez Appeals to the Fifth Circuit, Argues Florida Statute Overbroad

Rodriguez now appeals to the Fifth Circuit for relief, arguing, that the 2002 conviction is not an aggravated felony qualifier for sentencing purposes because the Florida law “Dealing in Stolen Property” is overly broad. The Fifth Circuit must determine whether Rodriguez’s prior 2002 conviction qualifies as an “aggravating felony offense” under the USSG, because if so, he faces a longer prison term and could potentially set a precedent for the federal “aggravated felony qualifier” status of this Florida law.

Federal Law: Sentencing Enhancements

A defendant’s base offense level will be increased by 8 levels if the defendant previously was deported, or unlawfully remained in the US after conviction for an aggravated felony, without regard to the date of the conviction for the aggravated felony. U.S.S.G. § 2LI.2(b)(1)(C); U.S.S.G. § 2LI.2 cmt. N.3(A); United States v. McKinney, 520 F.3d 425, 429 (5th Cir. 2008). An aggravated felony is defined as a “theft offense, including receipt of stolen property, or burglary offense, for which the prison term is at least one year.” 8 U.S.C. § 1101(a)(43)(G).

Federal Cases: Determining Aggravated Felony Qualifiers

A “categorical approach” is used to determine whether a prior conviction is an offense under the USSG. Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Rodriguez-Negrete, 772 F.3d 221, 224-25 (5th Cir. 2014). Courts compare the elements of a statute forming the basis of the defendant’s conviction with the elements of the generic crime (the offense as it is commonly understood). United States v. Schofield, 802 F.3d 722, 727-28 (5th Cir. 2015). If the offense of conviction has the same elements as the generic crime, then the prior conviction may serve as the predicate, because anyone convicted under that law is guilty of all of the elements. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013).

Similarly, a “modified categorical approach” is used by courts to analyze the elements of a divisible statute (a criminal statute that is comprised of several varied offenses). In a two-step “modified categorical approach,” the court first reviews indictments and jury instructions, among other documents, to determine which part of a statute formed the basis of a defendant’s prior conviction. Next, the court compares the elements of the crime of conviction with the element of the general crime.

The Fifth Circuit Weighs In

Here, the Fifth Circuit adopted the modified categorical approach to analyze the case. Here, the “generic crime” is a theft offense—the “Dealing in Stolen Property” conviction from 2002. Because the provision does not clearly define “theft offense,” the Fifth Circuit applied the generic definition of theft, “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership.” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)(per curiam). Burke v. MuKasey, 509 F.3d 695, 697 (5th Cir. 2007).

The court examined the Florida statute reads, “Traffic means to (a) sell, transfer, distribute, dispense or otherwise dispose of property; (b) to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of property.” Fla. Stat. § 812.012(8). Next, the Court reviewed Rodriguez’s charging document, which read, “Rodriguez knew or should have known that the property was stolen.” The Court examined Florida case law that showed that Florida applies the statute to conduct outside of the generic definition of theft—which created a problem when applying this conviction to the sentencing enhancement provision as outlined in the PSR. Without the enhancement provision, Rodriguez’s sentence would likely not have been as long with a lower base offense level. Accordingly the Fifth Circuit vacates the 27-month prison term and remands the case for resentencing only.

Jul 28
Love7
License to Carry Handgun LTC CHL

License to Carry a Handgun After Arrest or Criminal Charge in Texas

By Weapons Charges

License to Carry Handgun LTC CHLThere are many consequences for persons arrested and charged with a crime in Texas.  One of the often overlooked considerations is whether and to what extent a criminal accusation impacts one’s authorization to carry a weapon with a License to Carry (LTC), formerly a Concealed Handgun License (CHL). The reality of gun possession in today’s political climate is that the restrictions are many and increasing.

Texas has very specific guidelines regarding qualifications for obtaining a License to Carry a Handgun. But, what most do not realize is that there are also strict regulations in place while a person possesses that license – especially if a person is arrested and charged with a crime.

What happens to my License to Carry or CHL if I’m arrested and charged with a crime?

Texas Government Code 411.187 spells out the scenarios that require the Texas Department of Public Safety (DPS) to suspend one’s LTC or CHL. In regards to criminal charges, the department SHALL suspend an LTC if the license holder is charged with the commission of:

  • a Class A or Class B Misdemeanor;
  • an offense under Section 42.01 of the Texas Penal Code (Disorderly Conduct); or
  • any Felony offense.

In addition, a person’s LTC or CHL will be suspended if a person is arrested for any offense involving family violence or disorderly conduct and is subject to an active protective order.

How long will my License to Carry be suspended if I’m arrested and charged with a crime?

Unfortunately, the law is clear that the suspension will remain in place until the dismissal of the charges or for the duration of the protective order (in a family violence case.) Texas Government Code 411.187(c)(3).

What happens to my LTC or CHL if I’m convicted of the charge?

If you are convicted of any felony or of the offense of “Unlawful Carrying of a Handgun by a License Holder,” your license to carry a handgun will be revoked permanently. Texas Government Code 411.186 (3) & (4).

If you are convicted of a class A or class B misdemeanor, your license will remain suspended and you will only be able to re-apply for a new LTC when you once again meet the initial eligibility requirements.

A person is eligible for a LTC if they have not, in the five years preceding the application, been convicted of a Class A or Class B misdemeanor or disorderly conduct. What this essentially establishes is a 5-year waiting period from the time of your conviction to the time when you can apply again for your handgun license.

What about being convicted of offenses involving family violence?

Offenses involving family violence carry more significant consequences. If you are convicted of a Class C, Class B or Class A misdemeanor involving family violence, then Federal Law prohibits you from owning or possessing a firearm. Also, under Federal Law, even a plea to deferred adjudication constitutes a conviction and bars a person from owning or possessing a firearm. Because of this, a conviction for any misdemeanor involving family violence would prohibit you from ever being eligible to obtain your concealed handgun license in Texas. See Texas Government Code 411.172 (a) (9).

Jul 27
Love3
Possesion of a Firearm by a Felon

Defining “Felon in Possession (of a Firearm) in Furtherance of a Crime”

By Weapons Charges

5th Circuit Holds that Prosecutors need not provide evidence for each one of the Ceballos-Torres ‘Felon in Possession in Furtherance of a Crime’ factors.

Possesion of a Firearm by a FelonUS v Walker (5th Circuit 2016)

At trial, Henry David Walker pleaded guilty to conspiracy to possess with intent to distribute meth and possession of a firearm in furtherance of a drug-trafficking crime, violations of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). On record at the arraignment hearing and post-plea, Walker admitted to possessing nine firearms, including a 32-caliber firearm, two 22-caliber rifles, two 20-gauge shotguns, two revolvers, and a 9-millimeter semiautomatic gun—all of which were found at the scene of the arrest. US v. Walker, 218 F.3d 415. The district court sentenced Walker to concurrent terms of 151 months in prison for the conspiracy charge, and an additional 60 month statutorily-imposed mandatory sentence for the possession of a firearm in furtherance of a drug-trafficking crime. Walker appeals to the Fifth Circuit Court of Appeals, arguing that “factual basis” established after the guilty plea was insufficient to prove that he possessed the firearms in furtherance of a drug-trafficking crime.

The Big Issues before the Fifth Circuit: Did the Government Satisfy the “Felon in Possession” Requirements?

Walker’s plea came before the factual basis for the charge was established on record—was the apple put before the cart? The Court must determine whether a factual basis can be established after a guilty plea, and if so, whether the factual basis for Walker’s conviction was sufficient. The Court must also determine whether prosecutors need to provide evidence for each “felon in possession” factors.

Federal Law Regarding Felon in Possession in Furtherance of a Crime

A guilty plea is insufficient in itself to support a criminal conviction—the court must satisfy itself, through an inquiry of the defendant or examination of the relevant materials in the record, than an adequate factual basis exists for the elements of the offense.” Fed. R. Crim. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992).

Any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime …be sentenced to a term of imprisonment of not less than 5 years…” 18 U.S.C. § 924(c)(1)(A)(i).

The mere presence of a firearm is not enough—possession of a firearm is ‘in furtherance’ of the drug trafficking offense when it furthers, advances, or helps forward that offense. United States v. Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006); United States v. Ceballos-Torres, 218 F.3d 409, 410-411.

Factors that help courts determine whether the possession of the firearm was in furtherance of a drug-trafficking crime include: (1) type of drug activity; (2) accessibility of the firearm; (3) type of weapon; (4) whether weapons are stolen; (5) whether the possession is legitimate or illegal; (6) whether the gun is loaded; (7) proximity to the drugs or money; and, (8) the time and circumstances under which the weapons are found. Ceballos-Torres at 414.
The Fifth Circuit Analyzes the Ceballos-Torres Factors to Determine Walker’s Fate

Walker appeals to the Fifth Circuit, arguing that his case more closely aligns with United States v. Palmer, a case in which the Fifth Circuit reversed a defendant’s conviction based on lack of support under the Ceballos-Torres factors. The Fifth Circuit compares the three cases to analyze the factors.

 
WALKER PALMER CEBALLOS-TORRES
 Claiming no evidence of proximity of guns to the drugs.  Gun was locked in a safe.  Guns found alongside a substantial amount of drugs.
 Ammo matched the guns; most guns loaded.  Gun was not loaded.  Weapons loaded.
 Claiming no evidence of accessibility of the gun (no easy access). Ammo in the house did not match the gun. Ammo present that matched the guns.
 Walker is not a meth supplier.  Defense claimed he bought the gun for self-defense. Convicted felon in possession of a firearm.
 Nine firearms.  One unloaded firearm.  Multiple firearms.
 Denies weapons used in the furtherance of drug-related activity.  Denied the gun was used in relation to drug trafficking.  Court found weapons were in furtherance of drug-related crimes.

Here, the Fifth Circuit say that “the factual basis need not provide evidence for every single one of the Ceballos-Torres factors for a court to conclude that the defendant possessed a firearm in furtherance of a drug-trafficking crime,” rather, they are examples a court “might include” in its analysis “to help determine” a judgment. Further, the government need not provide evidence supporting each and every factor to determine guilt.

Because Walker possessed the firearms at his residence alongside the meth he supplied to dealers, he was a convicted felon at the time of the possession of the firearms, and because there were so many weapons present at the scene, the Fifth Circuit affirmed the district court’s conviction and sentence.

Jul 19
Love2
Texas Police Protection Act

New Law To Increase Penalties for Violence Against Police Officers

By Legislative Update, Police Violence

Texas Governor, Greg Abbott, Proposes Police Protection Act, Which Would Stiffen the Punishment for Violence Against Law Enforcement

Texas Police Protection ActOn Monday, Governor Greg Abbott called on both citizens and Texas lawmakers to get behind his proposed Police Protection Act in the 2017 legislative session. “While our state and the nation continue to mourn the heroes lost in Dallas, it is time for us to unite as Texans to say no more,” says Governor Abbott. The proposed legislation will strengthen penalties against those who are convicted of crimes where police officers are the target. Just this month alone, five Dallas police officers have been fatally shot and nine others injured when a shooter targeted police following a public demonstration. This past weekend, three Baton Rouge police officers were gunned down by a shooter who was also targeting law enforcement officers.

The purpose of the Police Protection Act (the “Act”) is to “make clear to anyone targeting law enforcement officials that their actions will be met with severe justice.” Under the proposed Act, Governor Abbott will extend hate crime protections to law enforcement officers, increase criminal penalties for any crime in which the victim is a law enforcement officer, whether or not the crime qualifies as a hate crime, and create a culture of respect for law enforcement by organizing a campaign to educate young Texans on the value that law enforcement officers bring to their communities, among other provisions. “At a time when law enforcement officers increasingly come under assault simply because of the job they hold, Texas must send a resolute message that the State will stand by the men and women who serve and protect our communities,” says Governor Abbott.

Governor Abbott’s proposed Act would make the police a protected class, where penalties for those perpetrating crimes against law enforcement would be increased incrementally. For example, assaults on police officers could be reclassified from Class C felonies to Class B felonies, and so on. Further, the Act will support efforts by Texas State Senator, John Coryn, and his proposed “Back the Blue Act,” which makes it a federal crime to kill, attempt to kill, or aspire to kill a police officer.

In recent weeks, lawmakers in other states have also made legislative provisions that protect police in the wake of the officer-targeted shootings. In North Carolina, Governor Pat McCrory signed a bill into law this week that makes dashcam video and bodycam footage exempt from public record, except under narrow sets of circumstances. In May, Louisiana Governor John Bel Edwards signed the “Blue Lives Matter” bill into law that makes an assault on veterans, police officers, emergency responders, and firefighters a possible hate crime. Louisianans convicted of misdemeanor hate crimes against officers will be fined $500 and face an additional sentence of up to six months.

In Texas, word of Governor Abbott’s proposed Act is already gaining favorable ground. Grimes County Sheriff Donald Sewell emphatically states, “The Sheriff’s Association of Texas is very pleased to hear our Governor is behind an effort to protect peace officers across our state…and we support our Governor. We look forward to working with the Governor during the 2017 legislative session to pass these important protections.” Dallas Police Association President, Rob Pinkston, echoes Sewell, saying “The Dallas Police Association applauds Governor Abbott’s bold plan in response to the recent wave of attacks on police officers.”

About the violence on law enforcement, Governor Abbott tweeted, “Texas is saying no more,” and, “We must unite and strengthen our commitment to protect law enforcement.” Ray Hunt, President of the Houston Police Officer’s Association says, “Governor Abbott’s solution is the right approach for Texas law enforcement officers and the people of Texas who support them.” Texas lawmakers will review the Police Protection Act in the 2017 legislative session, which begins January 10, 2017.

 

 

Jul 14
Love5
THC Controlled Substance Analogue Designer Drug

Controlled Substance Analogue Ratio Equates to Higher Federal Sentence

By Drug Crimes

THC Controlled Substance Analogue Designer DrugSynthetic Cannabinoids became popular in the 2000’s when they were first marketed as “legal herbs.” In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000’s, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals – 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Jul 07
Love3
Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

By DWI

In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Exigent Circumstances Warrantless Blood DrawBonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

Jul 03
Love5
Voisine Reckless Assault Firearm Ban

“Reckless” Domestic Assault Now Qualifies for Federal Firearm Restrictions

By Domestic Violence

“Firearms and Domestic Strife are a Potentially Deadly Combination,” says the Supreme Court

Voisine Reckless Assault Firearm BanVoisine v. United States (US Supreme Court, 2016)

Voisine v. United States consolidates two domestic violence-related cases from Maine. In both cases, the petitioner-defendants were previously charged with “reckless” misdemeanor assaults, and both were found later to own guns in violation of a federal statute prohibiting gun ownership by those convicted of domestic violence. The Supreme Court weighed the differences between intentional and knowing domestic assaults versus a reckless “heat of passion” type assault to reach it’s conclusion.

Voisine’s Domestic Violence Case

In 2004, Stephen Voisine was charged with and convicted of a domestic violence assault of his girlfriend, in violation of §207 of the Maine Criminal Code, which penalizes “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann. Tit. 17-A, §207(1)(A). A few years later, Voisine killed a bald eagle—a federal offense. During the investigation of the bald eagle crime, investigators discovered Voisine owned a rifle. Background checks reflected his prior domestic violence conviction, so prosecutors charged him with violating 18 U.S.C. §922(g)(9).

Armstrong’s Domestic Violence Case

In 2008, William Armstrong pleaded guilty to a domestic violence assault of his wife, in violation of the Maine Criminal Code. A few years later, law enforcement was investigating a narcotics ring, and discovered six guns and ammunition on Armstrong’s property. Like Voisine, Armstrong was charged with violating 18 U.S.C. §922(g)(9), unlawfully possessing firearms.

The Big Issue before the Supreme Court – Is there a difference between “Reckless” domestic violence and “Intentional” domestic violence for 922(g)(9)?

Both Voisine and Armstrong appealed their respective cases to the First Circuit, arguing that they were “not subject to the federal firearm prohibition described in §922(g)(9) because their prior convictions could have been based on reckless, rather than knowing and intentional, conduct.” United States v. Armstrong, 706 F.3d 1, 4 (2013); United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam).

After several appeals in Maine, both Voisine and Armstrong filed a petition to the Supreme Court. The Supreme Court granted the petition for review, specifically to resolve a circuit split over the issue at hand.

The Supreme Court must determine whether misdemeanor assault convictions for reckless domestic assaults invoke the federal firearms ban. What difference, if any, is there between intentional and knowing assaults versus a reckless assault? Does the type of assault even matter?

What is the current law regarding Federal firearm restrictions after a conviction for a domestic violence incident?

Under Federal law, any person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm. 18 U.S.C. §922(g)(9). This includes any misdemeanor that involves the “use of physical force.” §921(a)(33)(A).

The Supreme Court Weighs In

In the opinion released Tuesday, the Supreme Court discusses the mens rea (state of mind) for a reckless domestic violence assault, which a is “conscious disregard of a substantial risk that the conduct will cause harm to another.” ALI, Model Penal Code §2.02(2)(c) (1962). Reckless conduct, the Court says, is not an accident. Reckless conduct involves a deliberate decision to endanger others. Reckless conduct involves making a decision—it is a purposeful act.

Here, the Supreme Court holds that yes, misdemeanor assault convictions for reckless domestic assaults do trigger the federal firearms ban, for two main reasons.

I. It’s Common Sense–Plain Language Read of the Statute Renders this Result

Both Voisine and Armstrong took issue with the phrase “use of force”—namely the word “use.” However, “nothing in the word “use” indicated that the federal firearm ban applies exclusively to misdemeanor assaults that are knowingly or intentionally committed,” says the Supreme Court. Further, “dictionaries consistently define the noun “use” to mean the act of employing something.” Webster’s New Int’l. Dictionary 2806 (2d ed. 1954); Random House Dictionary of the English Lang. 2097 (2d ed. 1987); Black’s Law Dictionary 1541 (6th ed. 1990). “On that common understanding, the force used [in an assault] must be volitional.” In sum, a person who “assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally.”

II. Congress Intended to Include All Types of Misdemeanor Domestic Assaults in §922(g)(1).

The federal firearm ban for those convicted of misdemeanor domestic assaults was enacted by Congress in the late 90s to “close a dangerous loophole in gun control laws.” United States v. Castleman, 572 U.S. __, __ (2014)(slip op., at 2)(quoting United States v. Hayes, 555 U.S. 415, 426 (2009)). At the time, a law prohibiting those with felony domestic violence convictions was already on the books. §922(g)(1)(1994 ed.).

Unfortunately, says the Court, many domestic violence assaults are prosecuted as misdemeanor crimes or have a statutory penalty that results in misdemeanor convictions, “notwithstanding the harmfulness of their conduct.” Castleman, 572 U.S. at __(slip op. at 2). Using the Commerce Clause of the US Constitution as a hook for the law, Congress added the federal firearm ban for any person “convicted of a misdemeanor crime of domestic violence…from possessing any gun or ammunition with a connection to interstate commerce.”

Further, Congress defined “misdemeanor crime” as any misdemeanor under federal, state, or tribal law, committed by a person with a…domestic relationship with the victim that has…physical force.” In sum, the “statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence” under federal statutes.

Dissenters in the Crowd

Supreme Court Justices Thomas and Sotomayor disagreed with the majority. Both Justices aver that mere recklessness should not invoke a firearm ban because “recklessness does not necessarily involve the use of physical force.” [The Supreme Court] has routinely defined “use” in a way that makes clear the conduct must be intentional. Bailey v. United States, 516 U.S. 137 (1995). “The use of physical force against a family member refers to intentional acts of violence against a family member.”

Jun 30
Love3
Defense of Third Party Defense of Others

Defense of Third Party Not Allowed in Fort Worth Domestic Violence Case

By Domestic Violence

Defense of Third Party Defense of OthersThis week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of a third party” as a legal argument in his assault case, because it “was not material to, nor probative of, any fact that was of consequence to the determination of this action.”

Henley v. State (Tex. Crim. App. 2016)

Henley was Charged with Domestic Violence in Tarrant County and Offered a “Defense of Others” Argument at Trial

Mr. Henley was charged with misdemeanor assault causing bodily injury to a family member (domestic violence). Henley was alleged to have pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the concrete driveway.

At trial, Henley asserted a “defense of others” defense, which is an extension of the traditional self-defense argument. The rationale he provided for this defense was that he did not think his ex-wife was a fit parent because her new husband had sexually and possibly physically assaulted the children. The mother’s new husband was not present during the altercation and did not pose any immediate threat, but Henley tried to argue nonetheless that he was defending his children from being exposed to a physically and sexually abusive environment.

The trial judge did not allow Henley to present the defense of others claim and he was convicted. The 2nd District Court of Appeal (Fort Worth) reversed the trial court, holding that Henley should have been allowed to present his defense. The State appealed to the Court of Criminal Appeals.

What is the Standard to Assert Defense of a Third Party?

To claim defense of a third person, a defendant must reasonably believe his intervention was immediately necessary to protect the third person from the threat of force.

The question in this case was not, “is defense of a third person an effective defense when considered by the jury?” Rather the question was “should the defendant be allowed to bring that defense at all under these facts?”

A Divided CCA Holds that the Trial Judge Did Not Err in Denying Henley the Ability to Raise Defense of a Third Person

The slim majority said no,. Henley should not be able to bring this defense because his aim was not to offer material or probative evidence, but rather to introduce evidence of how bad of a mother. Henley’s ex-wife is, and perhaps try to finagle a jury nullification. The majority saw Henley’s attempted defense as nothing more than an attempt to circumvent the judicial and evidentiary process and try to make an emotional appeal to the jury rather than a factual one.

The dissenting judges (Keller, Hervey, and Newell) argued that the defense should have been allowed because anything thing that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be deemed relevant and therefore admissible. Further, the question of whether Henley’s defense claims were reasonable belonged to the jury not the judge. It was the jury who should decide if Henley, in fact, acted reasonably on that day in question.

What are the Implications of this Holding for the Defense of Third Person Claim in Texas?

This case demonstrates that Defense of a Third Person is not as easy as simply claiming it. There must be evidence to show that the defense is reasonable. The evidence must show that the “intervention was immediately necessary to protect the third person from the threat of force” or it could be disallowed by the trial judge. The valid defense of others is still viable; as viable as it ever was. It simply must fit the facts.

Jun 28
Love6
Movie Plot Defense Opens Door 404b

Movie Plot Defense Opens the Door to Evidence of Other Crimes

By Drug Crimes

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Movie Plot Defense Opens Door 404bDabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant’s Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.