Fort Worth Criminal Defense

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog's page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant's motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas' consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit's analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant's consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant's previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

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.

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.

Texas Stacking Sentences in Sexual Offenses

Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.