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Sep 30
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Self-Defense and Reckless Offenses

By Self-Defense

Under Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Presiding Judge Keller concurred. Alonzo Concurrence

Sep 21
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Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

By Sex Crimes

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State.

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation…

The case involved a six year-old child sexual abuse victim (who was three years-old when the abuse began) that the trial court determined was “unavailable” to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the videotaped testimony of the child was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court’s decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation…There was no “rigorous adversarial testing” of [the child victim’s] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA’s reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, “On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.”

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant’s right to confrontation should be balanced with the societal interest in protecting child sexual abuse victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a “close case,” but she would have affirmed.

Sep 20
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Show Me Your Green Card | 5th Circuit Immigration Case

By Immigration

In United States v. Soto, a case decided last month, the 5th Circuit Court of Appeals (Federal) affirmed appellant’s conviction for unlawfully transporting an illegal alien.  The court admitted that this was a close case, but ultimately affirmed the ruling of the trial court denying the appellant’s motion to suppress.

Facts:  Immigration case.  Upon seeing Border Patrol agents, a passenger in appellant’s vehicle, exhibited a look of shock and immediately ducked down and slumped back, out of the agents’ sight. (The Court held that the only plausible explanation for this behavior is that the passenger was attempting to hide from the agents.)  Adding to the agents’ suspicion, when they pulled up alongside appellant’s vehicle, the passenger’s darkly tinted rear window, which was halfway down when the agents first saw it, had been completely rolled up.  Finally, the agents made their observations sixty miles from the border on a route known for illegal alien trafficking.
The 5th Circuit applied the Supreme Court standard for reasonable suspicion that was laid out in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), wherein the Court held,

factors that may be considered in determining reasonable suspicion include: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.

Explaining that no single factor is determinative in this test, the court held that under the totality of the circumstances, the court held that the conduct witnessed by the Border Patrol agents was sufficient to create reasonable suspicion of illegal activity to justify the traffic stop.

Sep 19
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New Criminal Laws in Texas 2011

By Legislative Update

This month’s Texas Bar Journal alerts us to a few new criminal laws in Texas that our elected officials have just added to the books.  Below are some of the more interesting (imo) additions:

Bath Salts – House Bill 2118 outlaws the possession of bath salts, or the chemicals contained in bath salts.  Apparently, folks were using bath salts as alternatives to cocaine, LSD, ecstasy, and methamphetamine.  This is now a felony offense.

Spice – Senate Bill 331similarly bans the possession of synthetic marijuana (i.e. “K2” or “Spice”).  Depending on the quantity of the substance possessed, this new offense will be a Class B misdemeanor up to a first-degree felony.

Sexting for Minors – Under Senate Bill 407, Texas teenagers that send naked photographs via text message will no longer be deemed to have sent “child pornography.”  Sexting will now be considered a Class C misdemeanor for a first offense.

Sep 17
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Discovery Violation…Now What?

By Uncategorized

In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State.  The opinion addresses a key issue: what does a court do to remedy a discovery violation?  Often, the primary consideration is not whether a violation occurred, but what a court should do about it.

Let’s review the law on discovery:

Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment. Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).

Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.

See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).

As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it.  In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile.  The appellate court did not focus on whether a discovery violation had occurred – it technically had.  The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation.  The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent.  State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997).  In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).

Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.

Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.

Sep 06
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The Importance of a Waiver to a Potential Conflict of Interest

By Murder

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the “end-all, be-all,” but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

Sep 02
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Homeless Thief Trades Laptop and iPhone for Egg McMuffin

By Just For Fun

In lieu of a post on an obscure Texas law this week, I have a bizarre story for you. This is a true story about something that happened to a coworker of mine in Washington DC this past week. I’m trying to convince her to write something about it for the Washington Post, but she doesn’t think it’s newsworthy. I disagree simply because it is so crazy and bizarre (and funny to everyone but her). So here goes.

My coworker, we’ll call her Lindsay, is a Marine officer and lawyer. Lindsay lives alone in a basement apartment in a, how should we say it, not-so-well-to-do section of Washington DC. She calls it a “transitional community.” On Monday morning, Lindsay woke up, got dressed, put on a pot of coffee and plugged her cell phone into her computer that was on the coffee table in the living room. Then she noticed a package waiting for her outside her front door. Lindsay went outside to get the package and did not lock the front door when she came back in. After all, who needs to lock the front door when they are about to walk right back out of it in 10 minutes to go to work?

Lindsay then went back to her bathroom to tie her hair into a neatly shaped bun, a daily requirement for female Marines (those with long hair at least). When she returned to her living room (only 10 minutes later) to retrieve her piping hot cup of Joe she went to grab her cell phone and found that it was missing. Not only that, the computer to which she had just plugged it in was also missing. Knowing good and well that her coffee had not yet begun to take the desired effect, Lindsay began questioning whether she had actually plugged her phone into her computer 10 minutes ago. “Was this the early onset of Alzheimer’s?” she thought as she checked the refrigerator and freezer for her computer and phone. Finally, after scouring the house, she gave up and went to work.

Lindsay told me about her troubles as soon as she walked in the door to our Pentagon office and then she called her bank and credit card company. Believing now that someone had entered her house and stolen her laptop and phone, she also tried to report the incident to the DC police, but they refused to take the complaint. “You have to be calling us from inside your home or we cannot do anything.” She protested by kindly pointing out that the perpetrator had stolen her phone, but they weren’t convinced.

Right about now you might be thinking, “Okay, so what? She was burglarized. What’s so crazy about that?” Well here’s the crazy (and ridiculously lucky) part of the story. About an hour after she got to work, Lindsay received an odd message. Someone had called our office to report that she was in possession of Lindsay’s computer and cell phone. Lindsay called the woman who confirmed that she indeed had the laptop and cell phone and they arranged a time and place to meet up. When Lindsay met the woman she received the rest of the story.

This woman (the one that found the laptop and phone) was walking to work near the Washington Navy Yard when she saw a little homeless man walking down the street carrying a laptop and an iPhone. In fact, the iPhone was still plugged into the computer.  Finding the Apple-laden homeless man a bit out of place, the woman approached the him and said “Hey, I don’t think that laptop and cell phone belong to you. How about I buy you some breakfast at McDonald’s and you give me the laptop and cell phone so that I can return them to their rightful owner.” (After all, what’s a MacBook Pro when you can have a tasty egg McMuffin, right?) The homeless man agreed, enjoyed a McDonald’s breakfast and promptly relinquished the contraband items.

Later Lindsay paid the kind woman back for the homeless man’s breakfast and thanked her for stepping in. She is still pretty “creeped-out” as she puts it, that a random homeless man just let himself into her apartment while she was in the back room, but she has learned a valuable lesson about locking the door behind her. As Lindsay told us the story while we went for a jog around Capitol Hill, we wondered whether we would stop a homeless man to ask where he got a laptop/phone. We’re not sure we would have done that, but Lindsay sure is glad someone did.

Aug 30
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Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

By Jury Trial

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

Aug 30
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The Facebook Jury Instruction

By Jury Trial

As I was perusing my typical news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to “friend” the defendant in the case on Facebook.  That’s the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.  It is probably prudent to have a standard Facebook jury instruction.

Aug 19
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Obscure Texas Law #4 – Illegal Recruitment of an Athlete

By Just For Fun

Here’s our weekly review of obscure Texas laws.  Although enacted in 1989, this harkens back to the era when SMU football was a powerhouse (before they received the death penalty).  I don’t know whether they have a similar law in Florida, but from the looks of things the Miami Hurricanes may be finding out real soon.

Section 32.441 – Illegal Recruitment of an Athlete

Under this law, “[a] person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.”

Of course there is an exception if the person providing the benefit is related to the athlete.

Violations of this law are broken down as follows:
(1) Class C misdemeanor if the value of the benefit is less than $20;
(2) Class B misdemeanor if the value of the benefit is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the benefit is $500 or more but less than $1,500;
(4) state jail felony if the value of the benefit is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the benefit is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the benefit is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the benefit is $200,000 or more.

This is one of those laws, however, in which you might see a lot of prosecutorial discretion.  After all, the elected district attorney might not position himself well for reelection if he goes around prosecuting the local cattle barons and oil tycoons.