News and Insights

 (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling below the speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle "may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law." Tex. Transp. Code § 545.363(a). "Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded." Tex. Dep't of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.--San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer's report which contains a conclusory statement that appellant was "impeding traffic," but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant's motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court's ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were "impeding traffic" such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney's Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was "impeding traffic" based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court's ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was "impeding traffic," you should then ask the officer, "In what observable way was the defendant impeding traffic?" Were cars having to constantly go around him? Were they honking? Still, a trial court's ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

PROSECUTOR POST - Here is a helpful tip from a Texas prosecutor on Trial Advocacy in the criminal courtroom:

After years of practicing in criminal courts, I've seen numerous courtroom styles from criminal defense attorneys. One of the most prominent is the "grandstand" (a.k.a. Posturing). I would define the "grandstand" as attempted behavior exhibited by an attorney to establish dominance in the courtroom. Please note that word - attempted. From yelling to whining to stomping around and slamming things on counsel's table, I've seen it all. Sometimes this behavior isn't intentional but actual passionate investment, but more often than not I can see it's a show for the client.

The client wants the bulldog lawyer in the courtroom. At least that's what I hear. I think some of what I'm referencing is an attempt by these lawyers to be that bulldog by "grandstanding." However, in my experience, these attorneys that "grandstand" in court, end up looking like the yipping chihuahua instead of the bulldog. And it's funny to see the look on the defendant's face when he realizes he's hired the yipping chihuahua.

The more effective style I've seen is the old German Shepherd approach. The attorney that comes in and exudes that high level of comfort in the courtroom. He's professional to everyone (including state's counsel) and acts in a way that sends the message to his client - "yes, I've been here several times before." Does he "grandstand?" No. He establishes dominance by respecting the balance b/w the defense, the state and the bench. Does he bark? Sometimes. But only when there's cause. And when he barks everyone hears it and respects it.

Howes v. Fields is a U.S. Supreme Court Case that was released on February 21, 2012.  In this case, the U.S. Supreme Court confirmed that there is no bright line rule for determining when an inmate is in "custody," such that Miranda warnings are required if officers wish to questions him about an unrelated crime.

While serving a jail sentence, a corrections officer escorted Fields to a conference room where two police officers questioned him about an unrelated crime.  At the beginning of the interview, the officers told Fields that he could leave whenever he wanted.  Fields eventually confessed to the crime.  The officers never advised Fields of his Miranda warnings or told him that he did not have to speak with him.

The Sixth Circuit Court of Appeals held that any time an inmate is taken from the general prison population and questioned about a crime that occurred outside the prison, he is always in-custody for Miranda purposes.  Makes sense, right?
The Supreme Court disagreed.  The Court held that serving a term of imprisonment, by itself, is not enough to constitute Miranda custody.  When a prisoner is questioned, the determination of Miranda custody should focus on all of the circumstances surrounding the interrogation, to include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

In this case, the Court held that Fields was not in-custody for Miranda purposes.  Although the interview lasted between five and seven hours and continued well past the time Fields went to bed, the officers told Fields several times that he could leave and go back to his cell whenever he wanted.  Additionally, the interview was conducted in comfortable conference room, the officers did not physically restrain or threaten Fields and they offered him food and water.  All of these facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

Below are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.