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Feb 16
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The Booking-Question Exception: Another Reason to Shut Up

By Miranda

 – (Tex. Crim. App.) Feb. 8, 2012

Cecil Edward Alford was charged with evading arrest and detention.  While being transported to jail, Officers noticed that Mr. Alford was squirming around in the back seat.  Once at the jail, officers got Alford out of the car and searched the back seat.  As was procedure, they had searched the back seat of the squad car before their shift started to confirm that there were no items in the back seat.  After searching the back seat of the squad car following Mr. Alford’s transport to jail, officers located a clear plastic bag with pills inside and, directly under the bag, a computer flash drive (“thumb” drive).  As the jailers were booking Alford in, one of the officers took the thumb drive and held it up to Mr. Alford asking what it was.  The officer then asked, “Is it yours?” Alford claimed that it was.  At the time the jailer asked the question, Alford had not been advised of his Miranda rights.

The legal question arising from this situation is whether Alford’s admission that he owned the flash drive could be used against him at his trial.

The Court of Criminal Appeals first analyzed this case by addressing custodial interrogation and the “booking-question exception” to Miranda.  The Court recognized that questions “normally attendant to arrest and custody” or “routine booking questions” are exempt from Miranda. See South Dakota v. Neville, 459 U.S. 553 (1983); Pennsylvania v. Muniz, 496 U.S. 582 (1990).  The CCA noted that Mr. Alford’s case hinged on whether the question that the officer asked him that night was reasonably related to administrative concerns or if it was a question designed to elicit incriminatory admissions.

The defense presented case law supporting the contention that a question does not necessarily fall within the booking-question exception to Miranda simply because the question was asked during the booking process.  Specifically, the defense cited a footnote at the end of the Supreme Court’s opinion in Muniz that said, “recognizing a ‘booking exception’ to [Miranda] does not mean, of course, that any question asked during the booking process falls within that exception.  Without obtaining a waiver of the suspect’s [Miranda] rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id at 602, n. 14 (Brennan, J., plurality op.)

The CCA conceded that case law actually supported both the State and the appellant in this case.  Ultimately though, the Court held that the booking-question exception applies when the question reasonably relates to a legitimate administrative concern regardless of whether officer should have known that it might elicit an incriminatory admission.  The Court held that the Officer’s question in Alford’s case had the legitimate interest of identification and storage of an inmate’s property and that the questions regarding the thumb drive did fall within the booking exception to Miranda.

Essentially, the court decided that the relationship between the officer and Alford was not the determining factor.  Even though the Officer that asked Alford the questions was primarily responsible for the investigation, the Court still said that his question at the jail was just a booking question.  To me, this case does not provide any clarity to the booking-question exception to Miranda.  In any case, once a suspect is arrested, an officer could claim his questions are for booking purposes only, even when those questions are eliciting incriminatory admissions – and even if those questions are being asked while still in the field or at the scene.

This case just serves to reinforce what I’ve always advised folks – DO NOT SAY ANYTHING TO THE POLICE.  Of course, there are times when talking with a police officer cannot hurt, but if you are under arrest, DO NOT SAY ANYTHING, DO NOT EVEN NOD YOUR HEAD, until you have been provided an attorney.  If you must say something, say this:  “I request an attorney and will not answer any questions until I have been provided an attorney.”

Feb 14
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Defense to sexual assault

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

By Sex Crimes

Defense to sexual assaultTexas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Feb 10
Love0

Lost in Translation: A Defendant’s Right to Counsel

By Miranda, Right to Counsel

Under the Fifth and Sixth Amendments, a criminal suspect is guaranteed the right to counsel.  But there’s a difference between what the two amendments provide.  The Fifth Amendment right to counsel was created by the Supreme Court decision in Miranda v. Arizona, where the Court held that a person has the right to have counsel present during custodial interrogation (interrogation counsel).  The Sixth Amendment guarantees a defendant the assistance of counsel for his defense at trial (trial counsel).

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation (interrogation counsel) and the Sixth Amendment right to counsel at all critical stages of criminal proceedings (trial counsel) had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.

Pecina v. State, a recent Texas Court of Criminal Appeals case, illustrates the confusion that existed between the two rights to counsel.  In Pecina, Arlington Police officers arrested the defendant for the murder of his wife and took him to the hospital rather than the jail because he had suffered significant stab wounds (allegedly self-inflicted).  Because Mr. Pecina could not be transported to see a magistrate within 48 hours as required by the Texas Code of Criminal Procedure, the police officers brought a magistrate to him.  A bilingual magistrate.  The magistrate advised Mr. Pecina (in Spanish) of his Article 15.17 rights including, inter alia, the right to have an attorney present throughout the criminal trial process (i.e. trial counsel – 6th Amendment).

“After reading appellant his rights, [the magistrate] asked if he wanted a court-appointed attorney.  And he stated that he did.” She then asked Mr. Pecina if he “still wanted to talk to [the detectives]?” He said that he did.  The magistrate (as she later testified) believed that, when Mr. Pecina asked for counsel, he was asking for trial counsel, not interrogation counsel.  The two detectives then entered the hospital room and issued Mr. Pecina his Miranda warnings (in Spanish).  Mr. Pecina waived his Miranda rights, did not request an attorney, and gave a statement.  He was later convicted for murder after his statements to the detectives were admitted against him at trial.

These facts raise important questions:

When Mr. Pecina told the magistrate that he wanted a court-appointed attorney, did he invoke his rights under both the 5th and 6th Amendments? Should the police have refrained from initiating further questioning until he had an attorney present?

Prior to the 2009 Supreme Court decision in Montejo v. Louisiana, 556 U.S. 778, the controlling case regarding the two intertwining rights to counsel was Michigan v. Jackson, 475 U.S. 625 (1986). “In Michigan v. Jackson, the Supreme Court had held that ‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.’”

Under Michigan v. Jackson, Mr. Pecina’s assertion of his right to counsel that he made to the magistrate in the hospital would have been enough to preclude the police from initiating further interrogation. Or, if the police did later initiate interrogation, any statement Mr. Pecina made should have been suppressed at trial.

But all of that changed under Montejo in 2009. In Montejo, the Supreme Court disentangled the right to interrogation counsel with the right to trial counsel.

Distilled to its essence, Montejo means that a defendant’s invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation. The magistration hearing is not an interrogation event.

Analyzing the Pecina case in the wake of Montejo, the CCA explained that “[i]n this case, there were two separate events: magistration followed by a custodial interrogation.” The CCA then held that “under the totality of the circumstances…an objective and reasonable police officer, conducting a custodial interrogation would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for the purposes of custodial questioning.”

The CCA went further to clarify the new rule, explaining that under the Supreme Court decisions in Montejo, Miranda, Edwards, and Minnick, a suspect’s Fifth Amendment rights (to interrogation counsel) are only triggered “AFTER THE POLICE INFORM HIM OF HIS RIGHT TO COUNSEL AT THE BEGINNING OF A CUSTODIAL INTERROGATION.” Emphasis added.  Ultimately, the CCA held that the magistration hearing (in which Mr. Pecina requested an attorney) did not trigger any Fifth Amendment right concerning custodial interrogation; that, the CCA explained, was done by the detectives at the beginning of their interrogation.

PRACTICE NOTE: A criminal defendant/suspect must now request an attorney, unequivocally, at every stage of the criminal justice process.  Interrogation.  Arraignment.  Magistration.  Every stage.  This is a significant change in Texas criminal procedure.

Judge Alcala joined the majority opinion but wrote a separate concurring opinion, in which she notes:

The magistrate’s interpretation (that Mr. Pecina only requested trial counsel and not interrogation counsel) misses the whole point of the warning, which is the right to have an attorney present ‘during any interview with peace officers.’ I conclude that the record indisputably shows that appellant’s request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings. …Appellant’s request for an attorney was, at most, a pre-invocation of his right to counsel.

Judge Alcala believes that the “Legislature could easily fix [the confusion between the two rights to counsel] by adding one sentence to the Article 15.17 admonishments: ‘If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.’”

Judge Price dissented, opining that “[a]ny reasonably objective viewer would conclude from the peculiar facts of this case that [the magistrate] was acting as a de facto agent of the interrogating detectives.” He went further:

That the invocation [of Mr. Pecina’s rights] also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes. And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.”

Judge Price believes that Mr. Pecina’s Fifth Amendment right to interrogation counsel was violated.  I agree.

Feb 03
Love0

Prosecutor Post: It’s Not Personal…Really.

By Trial Advocacy

A Contribution From our Texas prosecutor friend:

I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys.  Relationships that, like it or not, become very intricate in the resolution of criminal cases.  This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney.  He started by pointing out how there’s not much to gain by creating a hostile relationship with a prosecutor.  He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.

I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney.  We try and look at the case and defendant separately from the attorney.  He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he’s going to handle a case.  Again, I stressed we try not to behave that way, but then again, I can’t speak for every prosecutor.

Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person.  The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside.  So, they take things personally.  Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away.  And it should!  Criminal cases shouldn’t be taken lightly by either side, but passion doesn’t have to trump professionalism.

There’s not really a how-to on not taking it personal.  Just something you have to practice I suppose.

Feb 01
Love0

Trial Judge Influences (But Does not Compel) a Defendant to Testify

By Uncategorized

The 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment.

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.

Jan 23
Love1
GPS Tracking Device Texas

Supreme Court Strikes Down GPS Tracking Device | US v. Jones (2012)

By Search & Seizure

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

GPS Tracking Device TexasMuch like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it’s a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here’s what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven’t had the time yet to fully digest the opinion, so I’ll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C’Mon.  When you cite U.S. v. Jones, people are going to thing you’re making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

Jan 01
Love0

Limits of the 4th Amendment in an iPhone Culture

By Drug Crimes

Does the 4th Amendment apply to a Cell Phone Search?

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person’s cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

Dec 21
Love0
Outcry Witness Statement

Closing the Loophole on Outcry Witness

By Sex Crimes

The Right to Confrontation and the Outcry Witness

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.

Dec 16
Love0

Vigilant Border Protection

By Drug Crimes

Out near El Paso, the law enforcement folks are pretty anal about boundaries.  Apparently, their “border-protection” mentality applies equally to law enforcement officers from neighboring jurisdictions.  Below is a summary from a federal quarrel between officers of El Paso and Hudspeth Counties.  While it isn’t directly on point for this blog, it is tangentially related to Texas criminal law and it has a little bit of 4th amendment seizure flavor to it.

Short v. West, Fifth Circuit Court of Appeals – November 2, 2011

Appellant was an officer in the El Paso Police Department, (EPPD) assigned to a narcotics task force for the 34th Judicial District. The 34th Judicial District includes both El Paso and Hudspeth counties. While conducting a task force related traffic stop in Hudspeth County, appellant encountered a Hudspeth County Sheriff Department (HCSD) deputy who asked him what he was doing there.  Appellant identified himself to the satisfaction of the deputy and told her that EPPD task force officers were working in Hudspeth County.  The deputy contacted her dispatcher who in turn called Hudspeth County Sheriff West and told him that EPPD officers were performing traffic stops in Hudspeth County.  Sheriff West ordered his deputies and find out whether the EPPD officers were, in fact, law enforcement officers.  Sheriff West also ordered his deputies to round up the EPPD task force officers and escort them to his office.

A lieutenant in the HCSD located appellant’s supervisor, who produced identification showing him to be an officer with the EPPD and the task force.  Appellant’s supervisor ordered him and the other task force members to return to El Paso County.  While on the way back to El Paso County, appellant and several task force members were stopped and surrounded by HCSD deputies.  The HCSD deputies ordered appellant and the other task force members to go to a nearby HCSD substation.  They were told that they would be arrested if they failed to comply.  Appellant and the task force members went to the HCSD substation where Sheriff West complained that he had not been notified of the task activities in his county. He then told the task force officers that they were free to leave.  Appellant sued Sheriff West under 42 U.S.C. § 1983 for violating his rights under the Fourth Amendment.

The court held that Sheriff West was not entitled to qualified immunity.  First, the court found that appellant was seized for Fourth Amendment purposes. The HCSD deputies surrounded the task force officers’ vehicles preventing them from returning to El Paso County.  In addition, appellant was threatened with arrest if he did not accompany the deputies to the HCSD substation.  A reasonable person would not feel free to ignore such a show of force and go about his business.

Second, the court found that such a seizure was objectively unreasonable.  Sheriff West ordered the task force officers to be detained and brought to the HCSD substation so he could personally examine them. This was not likely to quickly confirm or dispel his suspicions as to whether or not the task force officers were legitimate law enforcement officers.  There were less intrusive ways to accomplish this.  Sheriff West could have contacted the EPPD Chief, whom he knew or he could have run the license plates on the task force officers’ vehicles. It was unreasonable to not recognize or pursue these options as alternatives to seizing Short.

Dec 14
Love0

Consummation Optional for Credit Card Abuse

By Theft

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Credit Card Abuse or Debit Card Abuse if that person “presents or uses” a credit/debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a credit/debit card? Can someone “present” a credit/debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for “use.”

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.

The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal significance apart from use.