Skip to main contentIn Abney v. State, the Texas Court of Criminal Appeals considered whether an officer had reasonable suspicion to initiate a traffic stop when a vehicle was driving in the left lane of a road without passing. There was a road sign that prohibited driving in the left lane without passing, but it was located over 20 miles away from where the Appellant was pulled over.
As tends to happen, the police officer found marijuana during the traffic stop. At trial, and on appeal, the Appellant claimed that he did not commit a traffic violation because the road sign was not anywhere near where the stop occurred. The trial court and 5th Court of Appeals (Dallas) overruled this argument. The CCA, on the other hand found it meritorious.
The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a “left lane for passing only” sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.
The CCA reversed the Court of Appeals and held that the officer lack reasonable suspicion to justify the traffic stop. The evidence should have been suppressed at trial.
United States v. Gonzalez-Garcia, 2013 U.S. App. LEXIS 3366 (5th Cir. Tex. Feb. 15, 2013)
A federal agent saw Appellant walk out of a house under surveillance as part of a drug investigation. The agent approached Appellant, handcuffed him and placed him in his police vehicle. Without advising Appellant of his Miranda rights, the agent asked him if he was guarding a drug-house and if there were drugs in the house. Appellant replied, “Yes” to both questions and then requested an attorney. The agent asked Appellant for consent to search the house, which Appellant granted.
The agents found over two thousand kilograms of marijuana in the house. The district court suppressed Appellant’s admissions that he was guarding marijuana in the house because they were obtained in violation of Miranda, which the government conceded on appeal. However, the district court refused to suppress the marijuana recovered from the house.
First, Appellant argued the marijuana should have been suppressed because the agent obtained consent to search from Appellant after he requested an attorney. Second, Appellant claimed the agents’ use of his admissions, which were later suppressed, automatically rendered his consent to search involuntary. The Court disagreed.
In Edwards v. Arizona the Supreme Court held when an accused invokes his right to counsel, he is not subject to further questioning until counsel has been made available to him. However, a violation of the Edwards rule does not require suppression of physical, non-testimonial evidence. Consequently, even if the agent violated Edwards when he asked Appellant for consent to search the house, that violation would not justify suppression of the marijuana, which is physical, non-testimonial evidence.
Next, the court held Appellant’s consent was not automatically rendered involuntary because his Miranda rights were violated. Such a rule is not consistent with the multi-factor approach courts must use when determining voluntariness. Using that approach, and considering the Miranda violation, the district court found Appellant voluntarily consented to the search of the house.
The Court of Criminal Appeals does not like dog scent lineup evidence. While it has not come right out and declared such evidence categorically inadmissible (like polygraph evidence), it seems pretty close. With each new dog scent lineup case, we learn how unreliable this type of evidence can be.
In Winfrey v. State, the CCA overturned a capital murder conviction wherein the evidence included a dog scent lineup. The Court noted that the dog scent lineup along with the remainder of the evidence (all of it circumstantial) was only enough to raise a “suspicion of guilt,” but not enough to prove guilt beyond a reasonable doubt. The CCA overturned the conviction as being legally insufficient.
*Anytime we have a case involving a drug dog, we employ an expert consultant to review the dog handling technique of the officer. One of the best drug dog experts in Steve Scott with Scott’s Police K9 LLC in Flower Mound, Texas.
New Case from the 5th Circuit (Federal): United States v. Andres, 2013 U.S. App. LEXIS 143 (5th Cir. Tex. Jan. 3, 2013)
Synopsis: In December 2009, federal agents conducting an investigation into a large drug trafficking operation installed a GPS device underneath a pick-up truck, with a trailer attached to it, while it was parked on a public street after it had been loaded with twenty kilos of cocaine. Federal agents monitored the truck’s movements as it drove toward Chicago.
The agents contacted the Illinois State Police, gave them information about the truck, and told them they would like to have the drugs discovered during a traffic stop so they would not have to disclose the existence of a federal investigation. After being provided GPS information on the truck, a police officer saw it on an interstate highway and began to follow it.
The officer conducted a traffic stop on the truck for improper lane usage and improper lighting after he saw the trailer was swaying back and forth within its lane and its taillights were flickering. After the officer wrote a warning ticket, he asked Appellant to get out of the truck so he could talk to him about the taillight problem.
After inspecting the electrical connection between the truck and trailer, the officer handed Appellant his clipboard so he could sign the ticket. While Appellant was signing the ticket, the officer asked him where he was coming from. Appellant told the officer he was coming from Joliet, but the officer knew this could not be possible based on the surveillance the officers had been conducting. The officer also noticed that Appellant had begun to fidget and move his feet and arms around very nervously. When the officer asked Appellant if he had any drugs in the truck, he said, “No” and then consented to a search with a drug dog. The drug dog alerted and the officers found twenty kilos of cocaine hidden in the truck.
Appellant argued the drug evidence should have been suppressed because the initial traffic stop was a pretext and not based on any actual traffic offense. Even if the traffic stop was valid, Appellant claimed the officer’s continued questioning and dog search were not reasonably related to the original reasons for the stop.
First, the court held the officer was justified in stopping Appellant based on the traffic violations he saw. Second, the court held the officer’s continued seizure of Appellant after the reason for the initial traffic stop ended was supported by reasonable suspicion. It was reasonable for the officer, who had stopped Appellant for a safety violation concerning his trailer, to ask him to get out of his truck to look at the trailer and discuss the problem. In addition, the officer’s question, asking Appellant where he was coming from, occurred before the officer had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Appellant’s untruthful answer created reasonable suspicion that justified his continued detention, which ultimately led to the officer receiving consent to search the truck.
Appellant also argued the warrantless placement and use of the GPS device to monitor the movements of his truck violated the Fourth Amendment in light of the United States Supreme Court decision in U.S. v. Jones, decided in 2012. The Fifth Circuit Court declined to rule on whether warrantless GPS searches are per se unreasonable. Even assuming a Fourth Amendment violation had occurred, the court held the evidence should not be suppressed in this case because in December 2009, it was objectively reasonable for agents in the Fifth Circuit to believe that warrantless GPS tracking was allowed under circuit precedent.
This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction. We were not defending the case, but I found it interesting, so I went to watch part of the trial. While the defendant was not particularly likable, it didn’t seem to me that she was a criminal. I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense. But that’s the thing about trial. I don’t get to sit on the jury. It only matters what 12 citizens think about the case. I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.
This case reminded me that there is always a risk in going to trial. An inherent uncertainty. Even when you feel pretty confident about your case. Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily. It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands. Even more sobering, however, is the realization that at trial it’s only partly in your hands. All we can do is prepare, prepare, prepare, and put forth our very best effort.
The following cases were reported to me as “interesting cases,” but I would reclassify them as “troubling” (especially the second one). We might just see these again sometime soon if the CCA decides to hear them.
Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to “buy time” until the K-9 dog arrived.
Campbell v. State, 2012 WL 3201923 (Tex.App.-Tyler Aug 08, 2012) (NO. 12-11-00324-CR)
Quoting from the opinion: “Appellant contends that the true purpose of the stop ended when he was cleared of any outstanding warrants at 12:44 a.m. In his brief, Appellant points out that the evidence indicates that (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that Appellant and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]….We initially note that [officer’s] remark concerning [other officer’s] ‘buying time’ is troubling. But the trial court was not required to examine [the] statement in a vacuum. The officers were justified in checking whether there were any outstanding warrants for [passenger]….The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for Appellant and [passenger] at the same time. But the officers were under no obligation to investigate the situation in any particular order.”
D’s consent to house search deemed “voluntary,” despite presence of twenty officers on D’s property and a police helicopter hovering overhead.
Schield v. State, 2012 WL 3228829 (Tex.App.-Hous. (1 Dist.) Aug 09, 2012) (NO. 01-11-00466-CR, 01-11-00467-CR)
Quoting from the opinion: “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’….We find this case distinguishable…Appellant was behind a tall privacy fence on his property when [officer] called and asked him to come to the front of the property….[I]n Lowery, one of the officers had a pistol drawn, and at least five officers were inside the apartment before the seventeen year-old gave verbal consent, but here only two officers, with no guns drawn, approached the middle-aged Appellant at his gate to ask for consent….Appellant further testified that none of the officers yelled at him and that he made small talk with the officers before they asked him to sign the consent form.”
Murder under Section 19.02(b)(2) of the Texas Penal Code provides:
A person commits and offense if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
Because there is no clear mens rea (i.e. culpable state of mind, such as intentionally or knowingly) required under 19.02(b)(2), Texas courts have not allowed a lesser-included instruction on the offense of Manslaughter (which required a mens rea of recklessness).
Not any more.
In Cavazos v. State, the Texas Court of Criminal Appeals held that Manslaughter is an LIO of Murder under 19.02(b)(2). While the CCA could not look to the specific elements of the offenses to come to a conclusion, it used a functional equivalence test, holding that the culpable mental state for Murder under 19.02(b)(2) is the intent to cause serious bodily injury, which can be substituted for recklessness under a Manslaughter theory.
Of course, Mr. Cavazos did not benefit from this holding, because the CCA also held that his particular case did not qualify for the LIO instruction. So while new law emerges, his conviction stands.
You can’t believe anything he says. He tries to sound intelligent and reliable, but falls far short. Did you think I was writing about a political candidate? Nope. A police officer.
The Second District Court of Appeals (Fort Worth) just released State v. Houghton, a Driving While Intoxicated (DWI) case that centered around the testimony of the arresting officer. In this case, the defendant moved to suppress the DWI stop for lack of reasonable suspicion. At the suppression hearing, the police officer testified that he couldn’t remember why the car initially caught his attention. Perhaps it was for speeding, but he couldn’t say for sure. He further testified that the car was driving left of center in a lane, but that it never actually crossed over the line.
Granting the motion to suppress, the trial court commented that the officer lacked any credibility. Affirming the trial court’s suppression ruling, the Court of Appeals, held:
To establish reasonable suspicion, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion. Terry, 392 U.S. at 21-22, 88 S. Ct. 1868, 1880… Generally, law enforcement action can only be supported by facts the officer was “actually aware of at the time of that action.” State v. Ruelas, 327 S.W.3d 321, 326-27 (Tex. App.―El Paso 2010, pet. ref’d). As stated by the court in Ruelas, “The preference for objective standards, however, does not apply to the facts on which officers act.” Id. at 326 (holding officer lacked reasonable suspicion where it was not until suppression hearing when state was questioning motorist defendant that officer learned of facts suggesting he violated traffic code by making left turn into right-hand lane).
Here, because the officer failed to offer any justifiable reason for the traffic stop (a reason that was in his mind at the time of the stop, vice at the suppression hearing), the Court of Appeals affirmed the trial court’s suppression of the traffic stop. A police officer can’t just follow the prosecutor’s lead to justify the stop. He has to be able to articulate what was going through his mind at the time of the stop. If is doesn’t amount to reasonable suspicion, the case needs to get kicked.
Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:
United States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)
A Border Patrol Agent conducted a traffic stop on appellant’s van and eventually arrested him for harboring illegal aliens. The court held the agent did not violate the Fourth Amendment’s prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.
First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times. Second, various characteristics of the van and its passengers added to the agent’s suspicions. The van was a fifteen-passenger model of the kind often used in transporting illegal aliens. There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company. The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company. Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit. Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens. The agent’s 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.
United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012
Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer’s patrol cars too closely. One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it. After the dog alerted to the presence of drugs, the officers searched appellant’s car and found cocaine and two loaded firearms.
The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant’s rate of speed was credible. The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer’s patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers’ probable cause to stop appellant for speeding.
The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation. First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers. Second, during the stop, he kept his foot on the car’s brake pedal instead of shifting the transmission into park. Third, he could not provide details as to his destination or the family member he was going to visit. Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract. All of these circumstances supported the officers’ decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant’s car.
“I want a hamburger…no, a cheeseburger.”
“Spalding!”
Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty to receive a lesser sentence or probation. Sometimes, that is the best advice I can give. In these times, our goal is to mitigate the sentence.
However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing. In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge. This is a tactical choice. Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.
In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone. It is the defendant’s choice alone and no one can interfere with that choice. Seems fair enough, right?
In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it. If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.
That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).
As the appellate court noted:
Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” Tex. Code Crim. Proc. Ann. art. 1.13(a).
The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.
Understanding Criminal Defense and Personal Injury Law in Texas
Criminal defense and personal injury law are critical areas of legal practice, especially in Texas, where unique statutes and case law govern these fields. Individuals facing criminal charges or seeking compensation for personal injuries need to understand their rights and the legal processes involved. This comprehensive overview aims to educate potential clients about their options and the legal landscape.
In Texas, criminal defense encompasses various offenses, from misdemeanors to felonies, and requires a deep understanding of state laws and judicial procedures. Personal injury law, on the other hand, focuses on compensating individuals harmed due to another's negligence, covering a wide range of incidents, including car accidents and workplace injuries. By exploring these areas, clients can make informed decisions when seeking legal representation.
Key Legal Concepts in Criminal Defense
Understanding key legal concepts is essential for anyone navigating the criminal justice system. Terms such as "mens rea," "actus reus," and "reasonable doubt" play significant roles in determining the outcomes of criminal cases. These concepts help define the mental state of the accused and the actions that constitute a crime, which are crucial for building a defense strategy.
For instance, "mens rea," or the mental state required to be found guilty of a crime, varies depending on the offense. In Texas, different levels of intent, such as negligence or recklessness, can affect the severity of charges. Familiarity with these concepts allows defendants to understand their situation better and work closely with their attorneys to formulate effective defenses.
Recent Trends in Personal Injury Litigation
Personal injury litigation in Texas has seen notable trends in recent years, influenced by changes in legislation and societal attitudes towards liability and compensation. For example, the rise of technology and social media has impacted how evidence is gathered and presented in court, making it essential for attorneys to stay updated on these developments.
Additionally, Texas has implemented tort reform measures aimed at reducing frivolous lawsuits, which can affect the strategies employed by personal injury attorneys. Understanding these trends is vital for clients seeking justice and compensation, as they navigate the complexities of their cases in a changing legal environment.
Importance of Legal Representation in Criminal Cases
Having skilled legal representation is crucial for individuals facing criminal charges. An experienced attorney can provide essential guidance, ensuring that defendants understand their rights and the implications of their choices throughout the legal process. Legal representation can significantly influence the outcome of a case, from plea negotiations to trial strategies.
Moreover, an attorney's knowledge of local laws and court procedures can help clients avoid common pitfalls that may jeopardize their defense. By advocating for their rights and interests, legal representatives play a vital role in achieving favorable outcomes for their clients, whether through reduced charges, alternative sentencing, or acquittals.
Understanding Criminal Defense and Personal Injury Law in Texas
Criminal defense and personal injury law are critical areas of legal practice, especially in Texas, where unique statutes and case law govern these fields. Individuals facing criminal charges or seeking compensation for personal injuries need to understand their rights and the legal processes involved. This comprehensive overview aims to educate potential clients about their options and the legal landscape.
In Texas, criminal defense encompasses various offenses, from misdemeanors to felonies, and requires a deep understanding of state laws and judicial procedures. Personal injury law, on the other hand, focuses on compensating individuals harmed due to another's negligence, covering a wide range of incidents, including car accidents and workplace injuries. By exploring these areas, clients can make informed decisions when seeking legal representation.
Key Legal Concepts in Criminal Defense
Understanding key legal concepts is essential for anyone navigating the criminal justice system. Terms such as "mens rea," "actus reus," and "reasonable doubt" play significant roles in determining the outcomes of criminal cases. These concepts help define the mental state of the accused and the actions that constitute a crime, which are crucial for building a defense strategy.
For instance, "mens rea," or the mental state required to be found guilty of a crime, varies depending on the offense. In Texas, different levels of intent, such as negligence or recklessness, can affect the severity of charges. Familiarity with these concepts allows defendants to understand their situation better and work closely with their attorneys to formulate effective defenses.
Recent Trends in Personal Injury Litigation
Personal injury litigation in Texas has seen notable trends in recent years, influenced by changes in legislation and societal attitudes towards liability and compensation. For example, the rise of technology and social media has impacted how evidence is gathered and presented in court, making it essential for attorneys to stay updated on these developments.
Additionally, Texas has implemented tort reform measures aimed at reducing frivolous lawsuits, which can affect the strategies employed by personal injury attorneys. Understanding these trends is vital for clients seeking justice and compensation, as they navigate the complexities of their cases in a changing legal environment.
Importance of Legal Representation in Criminal Cases
Having skilled legal representation is crucial for individuals facing criminal charges. An experienced attorney can provide essential guidance, ensuring that defendants understand their rights and the implications of their choices throughout the legal process. Legal representation can significantly influence the outcome of a case, from plea negotiations to trial strategies.
Moreover, an attorney's knowledge of local laws and court procedures can help clients avoid common pitfalls that may jeopardize their defense. By advocating for their rights and interests, legal representatives play a vital role in achieving favorable outcomes for their clients, whether through reduced charges, alternative sentencing, or acquittals.
