Aug 19
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Fort Worth Student Athlete Defense

Obscure Texas Law #4 – Illegal Recruitment of an Athlete

By | Just For Fun

Fort Worth Student Athlete DefenseHere’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.

Aug 17
0
Warrantless GPS search attorneys Fort Worth

The Evils of Technology | GPS Search

By | Warrantless Search

Warrantless GPS search attorneys Fort WorthI love technology – from tablet computers to smartphones to flat-screen televisions.  If it’s shiny and new and guaranteed to make me the envy of my friends and family, I’ll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we’ve lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother’s truck to track its movements.  Hernandez was arrested while driving his brother’s truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother’s vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents’ use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80’s and 90’s.  Accordingly, the Court upheld the trial court’s denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

Aug 12
0
Texas Leaving Child in Vehicle

Obscure Texas Law #3 | Leaving a Child in a Vehicle

By | Just For Fun

Texas Leaving Child in VehicleBefore my wife and I had children, I was used to running quick errands to the store in a matter of minutes.  When the rugrats arrived, the quick errands required carseats, strollers, diaper bags, etc.  While I am now somewhat of a pro at running errands with children, I didn’t adapt all that quickly.  The first time I took my son to the store with me it was dark outside and he was asleep in his car seat.  I pulled up to Best Buy and completely forgot that I had him with me.  About 5 minutes after walking through the aisles I realized what I had done.  I’m sure I resembled the mother from the movie Home Alone as I darted out of the store to get my baby and bring him back in with me.  I can only imagine what the employees that guard the doors must have thought.  Well, Texas doesn’t take kindly to idiot parents like me (correction: like I used to be).

Here’s obscure Texas law #3.

Section 22.10 – Leaving a Child in a Vehicle

Under this law, it is a class C misdemeanor for intentionally or knowingly leaving a child in a vehicle for longer than five minutes if that the child is younger than seven years of age; and not attended by an individual in the vehicle who is 14 years of age or older.

Okay, so I might not have been in trouble because (a) I did not intentionally leave my child in the car and (b) there is a decent argument that as a stupid new parent I also did not knowingly leave him in there, and (c) I didn’t leave him in there for more than 5 minutes, but others may not be so lucky.  In all seriousness, however, if you ever see a small child locked in a vehicle (especially in the Texas summer heat), call the authorities immediately.  This law exists because children have died from the heat or cold of being locked in a car.

Aug 04
0
Purchase of Human Organs Texas Law

Obscure Texas Law #2 | Purchase and Sale of Human Organs

By | Just For Fun

Purchase of Human Organs Texas LawContinuing our weekly look at obscure Texas laws (in no particular order), here is one that gives a whole new meaning to the phase “Give me a hand.”

Section 48.02 – Prohibition of the Purchase and Sale of Human Organs

Under this law, it is a Class A mismedeanor if a person “knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ.”

Of course, there are exceptions for blood and plasma, and more exceptions for medical transplants.  I cannot imagine that this law is charged very often, but it would not be on the books if it hadn’t been a problem at some point in time.  Perhaps the lawmakers were concerned with the urban legend in which the person wakes up in the bathtub of ice and both kidneys missing.

Aug 03
0

Revisiting Michigan v. Bryant

By | Confrontation Clause

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Aug 01
0

Use Caution When Arguing Ineffective Assistance of Counsel

By | Ineffective Assistance

Last week, Justice Quinn of the 7th District Court of Appeals (Amarillo) very thinly masked his disgust in a three-page opinion (designated for publication) aimed at an appellant and his attorney who claimed that the trial defense counsel had been ineffective.  A shot across the bow to other would-be appellate attorneys who might be considering an ineffective assistance challenge, Justice Quinn warns “It ain’t a game folks; it’s real lives we are dealing with.”

The opinion (Nanez v. State) is short enough to read in about two minutes so I won’t reprint much of it, but here is, IMO, the best paragraph:

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done. Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact. Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective. Those before us today should heed that admonishment when next they think about invoking the theory. Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are dealing with.

Jul 29
0
Texas criminal law Use of Laser Pointer

Obscure Texas Law #1 | Use of Laser Pointers

By | Just For Fun

Texas criminal law Use of Laser PointerTexas has plenty of laws on the books that are obscure to the average Texan (including lawyers like me).  In an effort to educate the general public (since ignorance is no defense), I have decided to post one obscure Texas law (from the Texas Penal Code) every week, until I run out of (what I consider) obscure laws.  Here’s the first one:

Section 42.13 – Use of Laser Pointers

Under Section 42.13 of the Texas Penal Code, it is a Class C misdemeanor to knowingly point the “light from a laser pointer at a uniformed safety officer, including a peace officer, security guard, firefighter, emergency medical service worker, or other uniformed municipal, state, or federal officer.”

So I’ve never violated this law (to the best of my knowledge), but I am definitely guilty of making the family dog run around in circles chasing a laser light.  Perhaps there is another obscure Texas law that covers that.  We’ll find out in the coming weeks.

Jul 28
1
Criminal Defense Dog Scent Lineup

Fort Bend County Loses the Dog Scent Lineup Issue Again

By | Dog Scent Lineup

Criminal Defense Dog Scent LineupLast year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a “dog scent lineup” to match a suspect’s body scent to the scent of certain evidence from the crime scene.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in State v. Dominguez, another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect’s scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler’s methodology that the court noted were:

  • He carries around his “blind” non-suspect scent samples (called foil samples) in ziplock bags;
  • His foil samples are old samples, while the scent sample of the suspect is fresh;
  • He does not do negative runs where the sample of the suspect is excluded;
  • He uses multiple dogs during each test rather than allowing the dogs to work alone; and
  • He is mostly self-taught and his methodology is something he created.

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge’s ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler’s “dog scent lineup” evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

Jul 15
0
Gun possession Illegal Alien

Second Amendment Not Written For an Illegal Alien

By | Immigration

Gun possession Illegal AlienThe Second Amendment to the United States Constitution provides:

…the right of the people to keep and bear Arms, shall not be infringed.

But who are “the people?”  Does that include everyone, even illegal aliens?  Nope, says the 5th Circuit.

In a recent case, the Appellant argued that his conviction for being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5) violated the Second Amendment. The court held that “the people” referenced in the Second Amendment does not include aliens illegally in the United States. The court noted that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens, and between lawful and illegal aliens, and as a result 18 U.S.C. § 922(g)(5) is constitutional under the Second Amendment.

U.S. v. Portillo-Munoz, (5th Circuit) decided June 13, 2011.  See the full opinion in United States v. Portillo-Munoz.

Read about a different case (with a different conclusion) in Breitbart’s article.

Jul 14
0
Texas cheerleader sues for sex case

Wanna-be Texas Cheerleader’s Lawsuit Falls Off the Pyramid

By | Just For Fun

Texas cheerleader sues for sex caseWhile the 5th Circuit case linked below has nothing to do with criminal law and procedure, it has everything to do with ridiculous Texas shenanigans.  Volokh linked it first.  I found it too good not to note.  Read the case for yourself.  Don’t pass up the footnotes.  It is utter greatness.

Samantha Sanches v. Carrollton-Farmers Branch ISD (5th Circuit – Civil)

Here a teaser:

Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) (“title IX”) and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

And it only gets better from there.