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Mar 21
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When The Police May Search a Home Over Occupant Objection

By Warrantless Search

Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

The Supreme Court said YES in Fernandez v. California.  Read more below to see what happened and when the police can search a home without a warrant over a tenant’s objection.

Fernandez v. California (2014) – Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas answered.  She appeared to be battered and bleeding.  When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search.  Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’s oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search.  The trial court denied Fernandez’s motion to suppress the evidence, and he was convicted.  The California Court of Appeals affirmed the conviction.  It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez’s suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.  Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented.  Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant.  According to the Court, “A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant.” Furthermore, “Denying someone in Rojas’ position the right to allow the police to enter her home would show disrespect for her independence.” The judgment of the Court of Appeals was affirmed.

Jan 22
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CCA Reverses a “Nonconsensual” Police Encounter

By Search & Seizure

Illegal Search and Seizure Defense Attorneys

What exactly is a “Consensual Encounter” between a police officer and a citizen?  The trend in Texas search and seizure law over the past several years seems to indicate that any time a police officer does not have reasonable suspicion to justify a detention of an individual (or probably cause to arrest), the courts label the unreasonable detention as a “consensual encounter,” thereby justifying the illegal search and sustaining the investigative actions that follow.  The courts reason that the citizen was free to leave at any time during the officer’s questioning so the 4th Amendment is not implicated.

My question has always been” “Exactly what do you think the officer would have done if the person tried to leave during this encounter?” In the case that follows, the Texas Court of Criminal Appeals takes a huge step in the right direction against “consensual encounters.”

Johnson v. State – One night, a resident of an apartment complex called 911 to report a suspicious person- an unidentified black male who was sitting out front of the leasing office watching cars.  In response to her call, a Houston Police officer went to the complex.  Although the officer did not see anyone outside the leasing office, he noticed a vehicle that was backed into a parking space with its lights on.  The officer parked his car in a manner in which the appellant would have had to maneuver around the car to leave and shined his high-beam spotlight in the car.  Believing that appellant could be the suspect, the officer approached the driver side door where he smelled an odor of marijuana.  Despite the fact that the appellant’s clothing did not match the description given by the resident, the officer spoke to the appellant using a ‘loud authoritative voice.’  During the officer’s interaction with the appellant, he smelled an odor of marijuana coming from inside the car.  The officer did not see the marijuana until after he asked appellant to step out of the car.  The officer arrested the appellant and charged him with misdemeanor possession of marijuana.

Appellant filed a motion to suppress asserting that his seizure was made without any reasonable suspicion that he was engaged in any criminal activity and that the acquisition of the evidence was not pursuant to a reasonable investigative detention or pursuant to an arrest warrant.  The trial court denied the motion holding that appellant had been detained and that the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention.  The court of appeals affirmed the trial court’s judgment holding that a reasonable person in appellant’s position would have believed that he was free to ignore the officer’s request or terminate the interaction, thus making the initial interaction a consensual encounter rather than a Fourth Amendment seizure.

Police and citizens may engage in three distinct types of interactions: consensual encounters, investigative detentions, and arrests. Consensual police-citizen encounters do not implicate Fourth Amendment protections.  But, when a seizure takes the form of a detention, Fourth Amendment scrutiny is necessary and it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.

On review of the denial of appellant’s motion to suppress evidence that led to his marijuana conviction, the Court of Criminal Appeals held that the court of appeals erred in holding that the officer did not detain the appellant.  Under the totality of the circumstances, a reasonable person would not have felt free to leave.  When the officer (1) shined his high-beam spotlight into appellant’s vehicle, (2) parked his police car in such a way as to at least partially block appellant’s vehicle, (3) used a “loud authoritative voice” in speaking with appellant, (4) asked “what’s going on,” and (5) demanded identification, a detention manifested.  The Court of Criminal Appeals reversed and remanded the case to the court of appeals to consider the trial court’s determination that the officer had reasonable suspicion to detain the appellant and to decide whether that detention was valid.

Jan 10
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Reliable Enough for Probable Cause

By Probable Cause

When a probable-cause affidavit describes a “controlled purchase” that was performed by an individual whose credibility or reliability were unknown, is that (or can it be) sufficient to sustain a probable-cause determination?  The Court of Criminal Appeals said YES in Moreno v. State.

Moreno v. State: After receiving a tip from the Clovis, New Mexico Police Department that Appellant, Dimas Moreno, was distributing narcotics from his home, the Lubbock police department orchestrated a controlled purchase of drugs from Appellant. Officers enlisted the help of a confidential informant (“CI”), who was familiar with cocaine deals, to purchase crack cocaine from Appellant. The CI approached an unknowing participant in an effort to purchase the crack cocaine. The individual told the CI that he would go to Appellant’s house to pick up the crack cocaine. Police observed the individual go to Appellant’s house, enter, and exit a few minutes later. The unknowing participant then drove to the predesignated location and delivered the crack cocaine to the CI.

On the basis of these facts, a magistrate issued a warrant to search Appellant’s residence for crack cocaine and any other related contraband. After executing a warrant, police found the drugs and arrested Appellant. Appellant was subsequently charged with possession with intent to deliver a controlled substance in an amount of four or more but less than 200 grams. Appellant filed a motion to suppress, challenging the sufficiency of the affidavit. He claimed that there could be no probable cause when an affidavit describes a controlled purchase in which an unidentified individual of unknown credibility and reliability purchased the drugs.

The trial court held a hearing and denied Appellant’s motion. Appellant preserved his right to appeal, pled guilty and was sentenced to fifteen years’ confinement. The court of appeals affirmed, concluding that the affidavit was sufficient because probable cause was based upon police observations rather than upon any statements made by the unknowing participant.

To issue a search warrant, a magistrate must first find probable cause that a particular item will be found in a particular location. The magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

In this case, the court of criminal appeals held that the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause. It was reasonable for the magistrate to infer that the unknowing participant obtained the crack cocaine from Appellant’s house based on “common-sense conclusions about human behavior.” While it was possible that the third party obtained the cocaine from another source, Appellant presented no persuasive argument as to why the magistrate’s inference was unreasonable or whether the unknown participant had a motive to mislead the police. Therefore, the judgment of the court of appeals was affirmed.

Search & Seizure Defense Lawyers | Fort Worth, Texas

If you or a loved one were the subject of an unconstitutional and illegal search, seizure, or arrest, please contact us today for a free consultation of your case.

Jan 07
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Parole by Mistake: No Credit Toward Sentence

By Parole

If a person convicted of aggravated rape is paroled by mistake, is that person entitled to street-time credit for the period between his release and the revocation of his release?

The 5th Circuit said NO in Rhodes v. Thaler.

Rhodes v. Thaler, 713 F.3d 264 (5th Cir. 2013): Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. He was paroled in 2004, but returned to prison in 2006 after violating a condition of his release. Rhodes claimed that he was denied street-time credit for the two years that he was on parole which “could have been used to accelerate his automatic release to mandatory supervision.”

According to Rhodes, Texas law required that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he argued, was a violation of due process.

Rhodes sought habeas relief in federal district court. The district court denied his petition. Through a Certificate of Appealability, the 5th Circuit was granted jurisdiction to decide the appeal and consider Rhodes’s argument that his street time should have been restored because he was erroneously released to parole. According to the 5th Circuit, Rhodes’s petition could only be granted if one of his constitutional rights had been violated.

In order to prevail under due process, Rhodes must have had a “liberty interest” in his claimed street-time credit. If he did not have a liberty interest in that street-time credit, he was due no more process than he received. In determining whether Rhodes had a liberty interest in the street-time credit he demanded, the 5th Circuit looked to Texas’ law of releasees that was in effect when his release was revoked.

At the time Rhodes’s parole was revoked, Texas’ “street-time credit statute,” Tex. Gov’t Code §508.283, controlled. According to §508.283, “if the parole, mandatory supervision, or conditional pardon of a person described by §508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person’s release to the date of revocation.” According to the Court of Criminal Appeals, §508.149(a) includes persons- like Rhodes- who have been convicted of aggravated rape.

Therefore, because Rhodes was not entitled to street-time credit for that period, he had no protected liberty interest that was subject to due-process protection. Rhodes was only entitled to federal habeas relief if he was deprived of street time credit without due process. Because Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Therefore, the district court’s denial of Rhodes’s habeas petition was affirmed.

Nov 22
Love1

Supreme Court Decision Watch: Conflicting Consent to Search

By Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

Nov 15
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Stepmother Acquitted on Appeal for Appendicitis-related Death of Stepdaughter

By Manslaughter

Having a sick child can be a scary thing. Especially when you can’t figure out why they are sick. In this case, neither the school nurse nor the stepmother could figure out why the child was complaining. Read what happened.

In Britain v. State, the complainant, eight-year-old Sarah Brasse, went to her school nurse’s office complaining of a stomachache.  During her first visit, the nurse had her lie down for a little while and then sent her back to class.  Sarah returned two more times to the nurse’s office, visibly uncomfortable and crying.  After conducting a physical exam, which showed no abnormalities, the nurse decided to send her home.

The appellant, Sarah’s stepmother, picked her up. Later that evening, Sarah began vomiting and developed diarrhea.  Around six p.m. the next day, the appellant found Sarah dead.  Rigor had already set in by the time paramedics arrived, but appellant reported having checked on her only fifteen or twenty minutes before.  The emergency-room doctor estimated that the time of death was around three p.m.  Acute appendicitis was the cause of death.

A jury convicted appellant of manslaughter and injury to a child for recklessly causing the death of her stepdaughter.  The Court of Appeals held there was insufficient evidence that the appellant was “aware of but consciously disregarded a substantial and unjustifiable risk” as required to prove recklessness.  The Court of Appeals reversed the trial court’s decision and acquitted appellant on both counts.

The Texas Court of Criminal Appeals granted the State’s petition for discretionary review to answer one question: Should the Court of Appeals have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal?

The CCA affirmed the Court of Appeal’s rendering. To prove that the appellant acted negligently, the State would have had to show beyond a reasonable doubt that the appellant ought to have been aware of the substantial and unjustifiable risk posed by not taking Sarah to a doctor and that such a failure was a gross deviation from the standard of care than any ordinary person would have exercised.  The State failed to meet this burden.  Because there was no evidence concerning the standard of care an ordinary person should be held to or that showed the appellant should have been aware of the risk to Sarah, the State failed to prove beyond a reasonable doubt that the appellant acted with negligence.  Therefore, the Court of Appeals did not err in rendering a judgment of acquittal.

While many parents would have probably taken the child to the doctor, the Court of Appeals simply could not hold that the stepmother committed a crime by not doing so.

Nov 11
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No Solicitors or Drug-Sniffing Dog!

By Warrantless Search

The Legality of Drug-Sniffing Dog Searches

Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Oct 24
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Deadly Weapon Law in Texas

When is a Deadly Weapon Not a “Deadly Weapon?”

By Deadly Weapon

The Frustrating “Deadly Weapon” Issue

Deadly Weapon Law in TexasThe “deadly weapon finding” under Texas criminal law is an issue that leads most criminal defense lawyers to bang their collective heads against the courthouse wall. It seems that just about anything and everything is, has been, or will soon be, designated as a “deadly weapon” when the prosecution deems it helpful to securing a conviction and lengthier sentence. Here are some deadly weapons that we’ve seen recently: car, fist, baseball bat, walking stick, STDs, fire, fake gun, etc.

In the case below, the Texas Court of Criminal Appeals finally ratcheted back the power of the State to enhance a case with a deadly weapon finding.  Kudos to the 1st Court of Appeals (Houston) for stepping out on this issue.

Question Presented:  To support a deadly-weapon finding, must the “exhibition” of the deadly weapon facilitate, in some manner, the felony offense? Or is it sufficient that the exhibition of the deadly weapon occurs simultaneously with the felony but is unrelated to its commission?

In Plummer v. State, the Houston Court of Appeals, First Judicial District, held that there “must be some facilitation purpose between the weapon and the associated offense to support a deadly-weapon finding.”

Sep 17
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A Terry Stop With Guns Drawn, Unlawful Wiretapping, and Other 5th Circuit Fun

By Search & Seizure

Below are some case summaries from recent 5th Circuit (Federal) opinions.  Enjoy.

United States v. Abdo, 2013 U.S. App. LEXIS 17251 (5th Cir. Tex. Aug. 19, 2013)

After receiving information from employees at a gun store and an army/navy surplus store, police officers believed Appellant planned to detonate a bomb and shoot service members stationed at Fort Hood, Texas.  When the officers encountered Appellant they drew their firearms, separated Appellant from the backpack he was carrying, handcuffed him and then placed him in the back of a police car.  Appellant admitted to the officers that he planned to attack soldiers at Fort Hood.  Appellant was then formally arrested and transported to the jail.

Appellant argued the district court should have suppressed evidence found at the time of his arrest and statements he made to the police.  Appellant claimed his detention at gunpoint and placement in a police car in handcuffs was a full arrest rather than a Terry stop, which was not supported by probable cause. The court disagreed.

Pointing a firearm and handcuffing a suspect does not automatically convert a Terry stop into an arrest.  Here, when the officers encountered Abdo, they knew he had purchased shotgun shells, an extended magazine for a handgun and a large amount of gunpowder in a manner that was not consistent with its normal use.  The officers also knew Appellant purchased an army uniform and asked for the kind of patches used at Fort Hood.

In addition, Appellant was carrying a large, overstuffed backpack on a very hot day and one of the officers had experience with terrorists using similar tactics of concealing explosives in backpacks and obtaining fake uniforms to facilitate an attack.  Under these circumstances, the officers acted reasonably in drawing their firearms and handcuffing Appellant while they effected a valid Terry stop, which was supported by reasonable suspicion. 

United States v. Garza, 2013 U.S. App. LEXIS 17515 (5th Cir. Tex. Aug. 21, 2013)

While on roving patrol, a Border Patrol agent received a radio broadcast to be on the lookout (BOLO) for a suspicious looking older model pickup truck carrying plywood in the bed, parked at a gas station at the corner of FM 650 and Highway 83 near Fronton, Texas.  When the agent arrived at the gas station, he saw a pickup truck matching the BOLO description and got out of his vehicle to talk to the driver, later identified as Appellant.  As the agent approached, Appellant acted nervously, moving fast to replace the gas cap, tensing up and shaking while doing so and then quickly entered the pickup truck. Appellant attempted to drive away, but stopped when the agent activated the lights of his patrol car.

Appellant gave the agent consent to search the pickup truck and the agent found several people concealed underneath the plywood in the back of the truck who admitted they were in the United States unlawfully.  The agent arrested Appellant.

Based on the totality of the circumstances, the court held the agent had reasonable suspicion to stop of Appellant’s truck. First, FM 650 is a well-known smuggling road for narcotics and aliens because it is the only route in an out of Fronton, as this court has noted in the past.  Second, the agent had patrolled the border area regularly for over two and a half years and had investigated tips and made arrests in that same area for narcotics violations and alien smuggling.  Third, the agent encountered Appellant’s truck five miles from the border between the United States and Mexico, which supported the reasonable belief the vehicle had recently crossed the border. Fourth, upon arriving at the gas station, the agent knew Appellant’s vehicle did not belong to a Fronton resident and Appellant’s nervous, erratic behavior and unprovoked flight supported a finding of reasonable suspicion. Finally, based on his experience, the agent knew smugglers often used plywood to conceal contraband in their trucks.

United States v. North, 2013 U.S. App. LEXIS 17808 (5th Cir. Miss. Aug. 26, 2013)

As part of a drug trafficking investigation, federal agents obtained a wiretap order on Appellant’s cell phone from a federal judge in the Southern District of Mississippi.  Information obtained from the interception of Appellant’s cell phone on May 9 and 16, 2009, led to Appellant’s arrest for possession of cocaine. Title III of the Omnibus Crime Control and Safe Streets Act of 1986 authorizes the use of wiretap surveillance in criminal investigations.  Under Title III, a federal judge may enter an order authorizing the interception of cell phone communications within the territorial jurisdiction of the court in which the judge is sitting.  The Fifth Circuit Court of Appeals has held the “interception” includes both the location of a tapped telephone and the original listening post, and that a judge in either jurisdiction has authority under Title III to issue wiretap orders.

Appellant argued the district court in Mississippi lacked territorial jurisdiction to authorize the interception of the cell phone call on May 9, 2009, because when the agents intercepted the call his phone was located in Texas and the government’s listening post was located in Louisiana.  The court agreed.

The district court located in the Southern District of Mississippi lacked the authority to permit interception of cell phone calls made from Texas at a listening post in Louisiana. In addition, the court held suppression of the information obtained from the May 9, 2009, wiretap was warranted. Appellant further argued the agents failed to follow the minimization protocols during interception of the May 16, 2009, phone call between Appellant and a female friend who was not under investigation.  Appellant claimed the agents conducted uninterrupted monitoring of a one-hour telephone conversation that had no connection to the drug smuggling investigation.

The court agreed and suppressed the evidence obtained from the interception of the phone conversation.  The agents were authorized to spot-monitor Appellant’s cell phone conversations for no more than two minutes at a time.  However, the agents were authorized to continue monitoring if the conversation related to the drug smuggling investigation.  The court found the agents did not stop listening when it was made clear the conversation was not criminal in nature and they did not conduct subsequent spot checks by checking on the conversation to determine if it had turned to criminal matters.  Rather, the agents listened to the conversation for several minutes before dropping out for less than one minute at a time before resuming their near continuous listening.  Under these circumstances, the court held it was not objectively reasonable for the agents to listen for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes.

Sep 16
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Criminal Law Legislative Updates 2013

By Legislative Update

Below is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

– In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment.”

– Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

– Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

– House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

– Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

– In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

– Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

– Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

– In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

– If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

– Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. – Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

– House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

– Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

– Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

– House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

– House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

– Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.