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Jul 11
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CCA Upholds DWI Search Warrant, Overturns Lower Courts

By Search & Seizure

In a recent case, the Texas Court of Criminal Appeals, encourages trial judges to take off the hypertechnical blinders and consider the totality of the circumstances when reviewing the propriety of search warrants and their accompanying affidavits.

State v. Jed Jordan – (29 June 2011) Judge Womack writing for a unanimous court:

An affidavit for a DWI search warrant to search an accused’s blood began with a statement that the officer had “good reason to believe that heretofore, on or about the 6th day of June, 2008, [the suspect] did then and there commit [the offense of DWI.] The affidavit then went on to describe the specific conduct that the suspect exhibited that gave rise to the DWI arrest. However, when describing the conduct, the officer did not state that the conduct also occurred on the 6th of June, 2008. The magistrate issued the warrant and blood was drawn indicating that the suspect had, indeed, driven while intoxicated.

At trial, the court suppressed the results of the blood test, ruling that the DWI search warrant was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The 3rd District Court of Appeals (Austin) affirmed.

The CCA took the time in its opinion to distinguish prior caselaw on this subject and held:

The observations of driving and intoxication described in the second part of the affidavit were the elements of the offense alleged in the first part of the affidavit (where the time of the offense was alleged). Under the circumstances of this case, it was a reasonable inference that the observations occurred on the same day that the offense was alleged to have occurred. We therefore hold that the Court of Appeals erred in failing to consider the totality of the circumstances contained within the four corners of the affidavit in reviewing the magistrate’s basis for determining probable cause.

The CCA went on to do some “math for lawyers” that was apparently missing at the trial level:

We also find that the magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify that time of the stop. Because the warrant was issued on June 6th at 3:54 am, less than four hours could have elapsed between the observation of the offense, and the issuance of the warrant.

Calling on the trial court (and the 3rd Court below) to focus on the totality of the affidavit, the CCA remanded the case to the trial court, where, they might just have themselves a DWI trial after all.

Jul 07
Love0

A Simple Truth (Revisited): Expert Testimony on Mental Retardation

By Sex Crimes

In September of 2010, the 3rd Court of Appeals (Austin) reversed the sexual assault conviction of Mark Barshaw because the trial court allowed the following testimony of an MHMR expert regarding the truthfulness of mentally retarded individuals:

It’s been my experience that folks with mental retardation can be painfully honest, really. I mean, it’s like a little kid who looks at somebody and says in the supermarket, ‘You’re really old,’ or, you know, whatever little kids do.

See our prior post HERE.  The State appealed the 3rd Court’s reversal and now, in an opinion released on 29 June 2011, the Texas Court of Criminal Appeals reversed the Court of Appeals.

Barshaw v. State (Texas Court of Criminal Appeals 2011)

Apparently troubled by the less-than-thorough harm analysis conducted by the lower court, the CCA explained:

Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility. Upon reviewing the record as a whole, we find that additional evidence exists that should have been considered in the court of appeals’s harm analysis, as is required by [our previous caselaw].

With that, the CCA remanded the case back to the 3rd Court of Appeals to conduct a full harm analysis. A shot across the bow perhaps? I think the odds are heavily in favor of the Court of Appeals changing its mind on this one. We’ll see.

Jun 30
Love0

Come and Knock on Our Door | Child Search Authority

By Warrantless Search

Child Search Authority | Consent to Search Without a Warrant

Investigating a reported shooting, the police knock on the door to a home that is answered by an adolescent (a minor). Can the minor give the police permission to enter the home? Must the police ask whether the minor lives in the home? Should the police ask to speak to an adult? These issues were considered by the Texas Court of Criminal Appeals in Limon v. State, a case that was released a couple of weeks ago and designated for publication.

In an 8-1 decision, with Judge Womack writing for the majority, the CCA held that, while there is no per se rule that a child may or may not give consent to entry, a minor may possess apparent child search authority. The CCA cited the reasoning of the Supreme Court in the case of Georgia v. Randolph, 547 U.S. 103 (2006) and also noted five key facts that contributed to its ultimate conclusion that the minor in this case had the apparent authority to consent to entry:

1) [The minor] opened the door by himself in response to [the officer’s] knock;

2) The trial court could have inferred from [the officer’s] testimony that [the minor] appeared to be a teenager of significant maturity, if not a young adult;

3) [The minor] consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. (The reasoning being that the trial court could have believed that it was reasonable to rely on a teenager’s authority to consent to such a limited scope of entry, while it would not have been reasonable to rely on his authority to consent to a more intrusive search.);

4) The officer’s announced purpose was to conduct an emergency public-safety function; and

5) The time of entry (2 AM) could have led the trial court to believe that an individual opening the door at that hour was a resident rather than a guest.

Judge Meyers dissented, stating:

Nobody gives a teenager permission to allow strangers into their home. Yet, the majority focuses on what apparent authority the child in this case may have had to let the cops into the house a 2 o’clock in the morning. The police should presume that minors have no authority to consent to entry and should ask to speak to an adult. If no adults are available then the officers need to get a warrant (and possibly call CPS).

Jun 18
Love0

The “Don’ cha know” Standard | Intent to Commit Theft

By Burglary

Here’s the scenario – man is caught entering a home through a window that he broke. A female occupant of the home comes face-to-face with him and he then runs away. Is there evidence that the man was attempting to unlawfully enter the woman’s home? Certainly. Is there evidence to support the notion that he intended to commit a theft (or other felony) therein? That’s the question.

In Gear v. State, when posed with this question, the 12th District Court of Appeals (Tyler) held that the evidence was insufficient to prove that the man intended to commit a theft or other felony on the premises. Yes, the man tried to break in and yes the man was poor, but the State simply did not prove that an attempted “burglary” had occurred.

Enter the CCA (and exit the burden of proof). The Texas Court of Criminal Appeals reversed the Court of Appeals, holding:

On this record, we decide that a factfinder could reasonably find beyond a reasonable doubt that the recently unemployed appellant with about one dollar in his pocket intended to commit theft inside the complainant’s home when he attempted to enter the home through the window that he had just broken and where the evidence also shows that appellant ran when interrupted by the complainant and that appellant gave conflicting and implausible explanations for his actions.

If you ask me, who cares what explanations appellant gave for his actions? The State must prove this specific intent crime. The burden doesn’t shift to appellant to prove his innocence. If the State doesn’t prove the specific intent to commit theft, a verdict of acquittal is required.

Judge Cochran dissented from the majority. She writes,

[The majority opinion] seems to me to be a “Don’cha know” standard; appellant broke the window and was about to climb inside, therefore “don’cha know” he intended to commit theft…Looking at all of the evidence in this case, even in the light most favorable to the trial judge’s verdict, I cannot find the evidence sufficient in quality, character, or weight…

While everyone can probably agree that the man intentions were not honorable, if the State is going to charge something, the State must prove up the charge.

Jun 17
Love0

What’s Behind Door Number 1? | Knock and Announce

By Drug Crimes

Supreme Court Case Review –  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.

Jun 16
Love0

CCA Finds Constitutional Ex Post Facto Violation That Was Completely Missed at the Trial Level

By Sex Crimes

Here’s an excerpt from the Texas Court of Criminal Appeals’ majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

“Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred.”

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge’s ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

Jun 16
Love0

CCA Allows Defense Lawyer to Continue Representing Capital Defendants Despite Apparent Conflict of Interest

By Conflict of Interest

Yesterday, the Texas Court of Criminal Appeals released a published opinion (In Re Bowen) in an original mandamus proceeding. The relators (i.e. petitioners), two capital murder defendants, requested that the CCA direct the trial judge to rescind his order disqualifying the relators’ mutually retained counsel of choice. The State had moved that the counsel be disqualified due to a perceived conflict of interest and the fact that he would be called to cross-examine another one of his clients (a witness that the State intended to call).

The two defendants and the other client had all signed waivers regarding the actual or apparent conflict, but that did not satisfy the trial judge. In granting the State’s motion to disqualify the counsel, the trial judge stated:

It’s really about the integrity of the judicial process and the public’s perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution’s witnesses.

He went on:

I know how these things play out. I’m telling you I can see some reporter that doesn’t understand diddly about what’s going on in the trial but, you know, can pick up an issue like this and make a story out of it.

Surely he doesn’t mean me. I’m confident that I at least know diddly about the system, if not more.

In the mandamus proceeding, the CCA was called upon to overturn the trial court’s order. Citing the U.S. Supreme Court case, Wheat v. United States, 486 U.S. 153 (1988), the CCA explained that trial courts “must recognize a presumption in favor of a defendant’s counsel of choice.” The CCA also noted that “when a trial court unreasonably or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to the level of a constitutional (6th Amendment) violation.”

The CCA emphasized that conflict of interest cases really turn on the facts found by the trial court. In this case, the trial defense counsel offered a sealed affidavit explaining why his mutual representation would not amount to a conflict. He did not share his reasoning in open court for fear that the State would then know what he had up his sleeve. Once the CCA examined the defense counsel’s affidavit, it was convinced that there was no conflict (especially since all parties waived any potential conflict). Accordingly, the CCA held that the trial judge had violated the defendants’ 6th Amendment right to counsel and directed that the judge rescind his order.

Jun 14
Love0

Search of a Passenger’s Handbag Violates 4th Amendment

By Search & Seizure

Driver cannot give consent to search a passenger’s private bag.

is an interesting case with 4th and 5th Amendment issues coming out the Fifth Circuit. Of course, it’s an unpublished opinion, so it has no precedential value, but it’s a good case on federal criminal procedure.

The Fifth Circuit Court of Appeals (Federal) held that an officer’s warrantless search of Appellant’s handbags, during a traffic stop, violated the Fourth Amendment. Although the driver consented to search of the vehicle, he had neither the actual nor the apparent authority to consent to a search of his passenger’s property. The officer had no authority to search inside Appellant’s closed bags without her consent, which he neither sought nor obtained, and he knew the bags he was searching belonged to her.

After Appellant’s arrest, while being transported to jail, she made incriminating statements to the officer, without having been properly Mirandized. Approximately 4.5 hours later, DEA agents met with Appellant, Mirandized her, obtained a valid waiver and obtained a written confession from her.

The court held that the DEA interrogation and resulting confession were not tainted by the arresting officer’s earlier Miranda violation while transporting Appellant to the jail. There was little continuity between the two interrogations. The arresting officer asked his questions in his patrol car, while different personnel working for a different agency conducted the later DEA interview in a different location. There was a 4.5-hour break between the two interrogations and the DEA agents, in their interview, did not exploit or refer back to Appellant’s earlier statements.

Additionally, the court refused to suppress Appellant’s written confession to the DEA agents based on the arresting officer’s illegal search of her bags. The court held that the illegality of the search was clear however, the connection between the evidence it produced and Appellant’s confession to the DEA agents was weak. There was nothing to indicate that the discovery of a small amount of marijuana in the bags compelled Appellant to confess to possession of a large quantity of cocaine later found hidden in the vehicle. Further, Appellant was provided Miranda warnings, interviewed by different officers from a different agency and approximately seven hours had passed between the search of Cantu’s purse and the receipt of her written confession.

The full circumstances of the DEA interrogation served to purge the taint of the earlier illegal search.

Jun 08
Love0
Court Reporter Record

If a Tree Falls in the Forest… | The Importance of a Court Reporter

By Criminal Defense

Much like the existential question about the tree falling in the forest, if something occurs during a session of court and there’s no court reporter around to hear it (or transcribe it), did it really occur? More importantly, if the losing party wishes to appeal a ruling that took place during the time when the court reporter was not around, can that party prevail? The simple answer, according to the Texas Court of Criminal Appeals, is NO.

In Davis v. State, the appellant challenged a certain ruling (the granting of a continuance over defense objection), but there was no record of the session of court in which the ruling was made. Accordingly, the appellate court could not determine whether the trial court erred in granting the State’s motion. The appellant asserted that the trial court had a duty to make a record of the hearing and that any deficiency in the record must work against the State as the party that made the motion. Not so, held the CCA, overruling the 5th District Court of Appeals (Dallas).

The CCA explained:

Our case law…imposes an additional, independent burden on the appealing party to make a record demonstrating that [a certain] error occurred in the trial court. This includes a burden to object when the official court reporter is not present, as he is required to be under Rule 13.1, in order to preserve and error that may occur for appeal.

Even though the State had that burden at trial, the appellant, as the appealing party, had an obligation to present a record in the court of appeals that demonstrates he in entitled to appellate relief.

And with that, the CCA overturned the 5th District Court of Appeals, and affirmed appellant’s conviction.

Moral of the story for criminal defense lawyers: Always request (under section 52.046 of the Government Code) that a court reporter be present for open sessions of court. You never know what you might want to appeal later. And if for some reason the court reporter isn’t present and you get an adverse ruling, make a later record of it. Give the appellate court something to go on, or else you will certainly lose.  As the CCA put it, “it is the appellant who must bear the consequences of such a definicency in the record.”

Note: The CCA mentioned in footnote 19 that it has yet to weigh in on the question discussed in Polasek v. State, 16 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2000, pet. Ref’d) regarding whether Tex. R. App. P. 13.1 requires a court reporter at all sessions or whether section 52.046(a)(1) trumps. Section 52.046(a)(1) requires the court reporter only when one of the parties makes a request.

Judge Johnson concurred, but it is not clear (to me) why.

Jun 07
Love0

Is a Defendant Entitled To Transcript of a Prior Mistrial?

By Jury Trial

Blackshear v. State (link not working for now) 14th District Court of Appeals (Houston) 2011.

In Blackshear, the jury convicted appellant of possession of a controlled substance, but could not agree on an appropriate sentence. The judge declared a mistrial for the sentencing portion of the case. The State, which did not put on any evidence during the initial sentencing phase, decided to recall some of the trial witnesses during the new sentencing hearing to give the new jurors a better taste of the evidence. Accordingly, the appellant requested a continuance so that he could obtain a transcript of the prior trial in order to prepare a proper defense during the new sentencing hearing. The trial court, however, was more interested in a speedy disposition and denied the request for a continuance, empaneled a new jury the very same day, and conducted the sentencing hearing the following day. On appeal, the 14th COA held that it was error for the trial court to deny the continuance. The appellant had a presumptive right to the transcript that the State did not rebut. Here’s how the court explained it:

The State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal when those tools are available for a price to other prisoners. Among these basic tools is a transcript of prior proceedings when needed for an effective defense or appeal. In determining whether a defendant needs a transcript, the Britt court took two factors into account: (1) the value of the transcript to an effective defense, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

 In considering the first factor, the Britt court noted that “our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” Ordinarily, the court concluded, a transcript of a prior mistrial is valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. The Court of Criminal Appeals has expressly presumed a defendant’s need for a transcript and has imposed upon the State the burden to rebut the presumption.

An easy decision for the 14th COA in Blackshear. “Blackshear’s counsel should have been able to use the transcript from the first trial in his cross-examination in the second.” The trial court denied the request. No transcript = remand for new sentencing hearing.