News and Insights

Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:

United States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)

A Border Patrol Agent conducted a traffic stop on appellant's van and eventually arrested him for harboring illegal aliens.  The court held the agent did not violate the Fourth Amendment's prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.

First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times.  Second, various characteristics of the van and its passengers added to the agent's suspicions.  The van was a fifteen-passenger model of the kind often used in transporting illegal aliens.  There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company.  The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company.  Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit.  Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens.  The agent's 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.

United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012 

Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer's patrol cars too closely.  One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it.  After the dog alerted to the presence of drugs, the officers searched appellant's car and found cocaine and two loaded firearms.

The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant's rate of speed was credible.  The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer's patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers' probable cause to stop appellant for speeding.

The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation.  First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers.  Second, during the stop, he kept his foot on the car's brake pedal instead of shifting the transmission into park.  Third, he could not provide details as to his destination or the family member he was going to visit.  Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract.  All of these circumstances supported the officers' decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant's car.

"I want a hamburger...no, a cheeseburger."

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant's best interest to plead guilty to receive a lesser sentence or probation.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.

However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant's choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant's choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State's consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they'll have to see what a jury thinks of the case.

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson v. State.  The Attack By Dog statute provides, in relevant part:

(a) A person commits an offense if the person is the owner of a dog and the person: (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner's real property or in or on the owner's motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;

After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms "unprovoked" and "attack" are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms "unprovoked" and "attack" are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:

Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.

The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners' failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will be charged with a crime.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing agg assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan's community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus "seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion."

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant's community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as "administrative" in nature, but wrongly so.

In this case...the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant's criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the "grasp of the Double Jeopardy clause," it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).