Jun 08
0
Court Reporter Record

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

By | Criminal Defense

Court Reporter RecordMuch 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
0
Defendant entitled to transcript of mistrial.

Is a Defendant Entitled To Transcript of a Prior Mistrial?

By | Jury Trial

Defendant entitled to transcript of mistrial.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.

May 24
2
Fort Worth false confession attorneys

Custodial Interrogation or Friendly Chat

By | Sex Crimes

Fort Worth false confession attorneysAs I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case regarding a “custodial interrogation.” It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody” and therefore the subject of a vlid “custodial interrogation:”

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.

May 18
0
Sossamon v. Texas

Accepting Federal Funds Does Not Waive State’s Sovereign Immunity

By | Sovereign Immunity

Sossamon v. TexasIn April of 2011, the United States Supreme Court issued an opinion in Sossamon v. Texas addressing whether the State of Texas had waived its sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). While the case is primarily constitutional in nature, it did stem from a claim that a Texas inmate made against the State of Texas for allegedly violating his protections of religious exercise.

Specifically, the inmate was challenging two prison policies:

  1. a policy preventing inmates from attending religious services while on cell restriction for disciplinary infractions; and
  2. a policy barring use of the prison chapel for religious worship.

The court did not address the issue of how and to what extent the prisoner’s rights to religious exercise were violated. Instead, the Court addressed the issue of sovereign immunity and whether the State of Texas could even be sued in the first place.

The Petitioner argued that because the State had received federal funding it had waived it’s right for sovereign immunity and was liable for damages base on RLUIPA.

Ultimately, the Supreme Court concluded that in accepting federal funding, a State does not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. The Court acknowledged that a State may choose to waive its immunity, but that consent must be “unequivocally expressed” in the relevant statute’s text. Clark v. Barnard, 109 U.S. 436. The Court also noted that a waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Pennhurst State School and Hospital v. Holderman, 465 U.S. 89.

The Court upheld the Fifth Circuits ruling that barred the Petitioner’s claims for monetary relief based on sovereign immunity.

May 13
0
Parole in Texas

TDCJ’s Flagrant Violations of Constitutional Law in Parole Process

By | Parole

Parole in TexasA releasee (parolee) is entitled to a prompt preliminary hearing once the revocation process has been initiated by the execution of a revocation warrant. Morrissey v. Brewer, 408 U.S. 471 (1972). Due process, according to the Supreme Court of the United States in Morrissey v. Brewer, requires that a preliminary hearing be held “as promptly as convenient” after a parolee has been arrested to “determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”

In Ex Parte Bohannan, the applicant (parolee) filed an application for writ of mandamus arguing that the Texas Department of Criminal Justice (TDCJ) violated his constitutional rights by failing to hold a preliminary hearing when the State sought to revoke his parole.

While on parole for aggravated rape, applicant was arrested for monitoring violations. However, TDCJ did not hold the required preliminary hearing because it has a standing policy that it does not conduct preliminary hearings while there is a criminal case pending. Once applicant filed for habeas corpus, however, the TDCJ conducted the preliminary hearing. Even though he ultimately received the hearing that he sought, applicant nonetheless requested that the CCA intervene, arguing that his situation is not unique in Texas and that this problem is “capable of repetition, yet evading review” (an exception to the mootness doctrine).

TDCJ, in its brief to the CCA, stated its belief that it need not conduct such a hearing while a criminal case is pending because the court system conducts similar probable cause hearings and a preliminary hearing would only be redundant. In essence, TDCJ was saying they there is no need for them to follow the law.

Ultimately, the CCA held that the case was non-justiciable (moot), so it did not consider the substance of applicant’s claim. However, Judge Keasler, joined by Judges Price, Hervey and Cochran, penned a scathing concurrance wherein it warns the TDCJ that if it continues its policy of not granting preliminary hearings in parole revocation cases, “it does so at its own peril.”

The Supreme Court has not made any exceptions to [the preliminary hearing requirement]. Thus, contrary to the assertion of the Texas Department of Criminal Justice (TDCJ), as amicus curiae, such a hearing is not duplicative of any other prior probable cause determination. The failure to comply with Morrissey violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law. Indeed, TDCJ has admitted as much: “there is no reasonable expectation that the TDCJ will discontinue its policy of not providing a preliminary hearing when a releasee is being held on pending criminal charges . . . .” This is patently unacceptable. And if it “reasonably expects” to continue this policy, it does so at its peril.

The answer for future parolees: MANDAMUS.

Because a claim challenging the Board’s failure to provide a preliminary revocation hearing is non-justiciable, Article 11.07 does not provide an adequate remedy at law for a release to compel the Board to comply with its ministerial duty. But mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed.

May 11
0

Sex Offender Parole Conditions Lifted at Habeas Proceeding

By | Parole, Sex Crimes

Court Holds that Sex Offender Conditions Cannot be Added as a Condition of Parole for Cases That Do Not Involve a Sex Offense

Ex Parte Evans – The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. Also, the officers found two pornographic DVD’s – all of which were unlawful for Appellant to possess while a registered sex offender.

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;

(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;

(4) the right to confront and cross-examine witnesses, unless good cause is shown;

(5) an impartial decision maker;

(6) a written statement by the fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws

May 10
0
Warrantless Search of Cell Phone

Warrantless Search of Cell Phone Text Messages

By | Warrantless Search

Warrantless Search of Cell Phone | Fort Worth Criminal Defense Attorneys

Warrantless Search of Cell PhoneCan an arresting officer search a person’s text messages as a “search incident to arrest?” The U.S. Court of Appeals for the 5th Circuit said YES in U.S. v. Curtis, but caveats that the search in the case occurred prior to the Supreme Court holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).

United States v. Curtis – In July 2007, officers obtained an arrest warrant for Appellant after he made a false statement on a credit application he submitted to a car dealership. (Seriously?) When the officers arrested Appellant he was driving his vehicle and talking on his cell phone. After he pulled over, Appellant placed the cell phone on the car’s center console. An officer took the phone out of the car and began looking at the text messages on it. Later, while Appellant was being processed at the jail the officer resumed looking at the text messages on the cell phone.

The 5th Circuit held that the search of the cell phone was constitutional since it took place incident to a lawful arrest and it was within Appellant’s reaching distance when the officers arrested him. The court followed U.S. v. Finley, 477 F.3d 250 (5th Cir.), which held that the police could search the contents of an arrestee’s cell phone incident to a valid arrest when it is recovered from the area within an arrestee’s immediate control.

Appellant argued that the officer’s search of the cell phone was unlawful in light of the Supreme Court’s holding in Gant, decided in 2009, which held in part that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of arrest.”

The court refused to apply the rule announced by Gant to a search incident to arrest that occurred before Gant was decided. Additionally, the court stated that even if it had ruled the search of the cell phone was unlawful, it would have refused to suppress the text messages under the good-faith exception to the exclusionary rule. The court noted that the good-faith exception applies to searches that were legal at the time they were conducted, but later determined to be unconstitutional by a subsequent change in the law.

My question is: Why did the officer feel he needed to search Appellant’s text messages? I’m pretty sure the iPhone does not have an app that turns the phone into a dangerous weapon. There should be no reason that the officer needed to conduct such a warrantless search. Luckily, however, this holding is narrow in that it appears that it does not apply to searches conducted after the Supreme Court decision in Gant.

UPDATE: Warrantless searches of cell phones are now unreasonable. 

May 09
0
Fort Worth criminal defense attorneys DNA testing

Post Conviction DNA Testing – How It Works

By | DNA

Fort Worth criminal defense attorneys DNA testingWhat follows is an excerpt from the Texas Court of Criminal Appeals’ recent published decision in Ex Parte Gutierrez regarding the propriety of post-conviction DNA testing. It does not reflect new law on the subject, but is helpful as a refresher.  These are the statutory hurdles a person must jump in order to have the original evidence tested for DNA in hopes of proving his/her innocence:

There is no free-standing due-process right to DNA testing, and the task of fashioning rules to “harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice” belongs “primarily to the legislature.”  In Texas, Chapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing when requested by a convicted person if it finds all of the following:

(1) evidence exists that by its nature permits DNA testing;

(2) the evidence was either:

(a) justifiably not previously subjected to DNA testing [because DNA testing i) was not available, or ii) was incapable of providing probative results, or iii) did not occur “through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing”]; or

(b) subjected to previous DNA testing by techniques now superseded by more accurate techniques;

(3) that evidence is in a condition making DNA testing possible;

(4) the chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

(5) identity was or is an issue in the underlying criminal case;

(6) the convicted person has established by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(7) the convicted person has established by a preponderance of the evidence that the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

An indigent convicted person intending to file a motion for post-conviction DNA testing now has a limited right to appointed counsel. That entitlement used to be absolute, but it is now conditioned on the trial judge’s finding “that reasonable grounds exist for the filing of a motion.” If all of the prerequisites set out above are met, the convicting court must order testing. Then, after “examining the results of testing under Article 64.03, the convicting court must hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Chapter 64 is simply a procedural vehicle for obtaining certain evidence “which might then be used in a state or federal habeas proceeding.”

May 06
0
5 Jurors in Texas

A Criminal Trial With Only Five Jurors

By | Jury Trial

Can a defendant waive his constitutional right to trial by six jurors (in County Court)?

5 Jurors in TexasThe United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors in a misdemeanor criminal trial. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years, a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Cochran dissented without opinion.

May 04
0
Consent to Search Car in Texas

Do You Consent? Do You Consent? Do You Consent?

By | Warrantless Search

Consent to Search Car in TexasToday, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver’s side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the “totality of the circumstances” and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.