COURT OF CRIMINAL APPEALS HOLDS TRIAL WAS PERMISSIBLE WITHOUT LANGUAGE TRANSLATION

April 10, 2014, by Attorney Christian T. Souza

In a case decided this week, the Texas Court of Criminal Appeals in Austin held that a native Spanish speaker who did not understand English could not have another trial, because the trial court "affirmatively reflected" that the defendant waived his right to understand the proceedings. The Court of Criminal Appeals held that the trial court did not have to formally question the defendant about whether the defendant wanted to give up his right to have a translator. The bilingual defense lawyer thought it would be distracting to the jury, and the lawyer thought it might affect his own concentration. The defendant agreed with his lawyer about that approach. The Court of Criminal Appeals held that the record showed that the defendant did not want a translator, even though he said he did not know about that right, and even though the trial judge never asked him if he understood the right or wanted to give it up.

FINDINGS REQUIRED FOR REVIEW OF TWO-STEP INTERROGATION

March 1, 2014, by Attorney Christian T. Souza

In October of 2013, the Texas Court of Criminal Appeals considered the Fifth Amendment and a criminal defendant's privilege against self-incrimination in the context of law enforcement breaking an interrogation into two steps. I have previously written about the substantive legal analysis of the two-step process, often referred to as the "mid-stream Miranda" analysis, in discussing a Kaufman County case decided at the Dallas Court of Appeals.

After arrest, a defendant has the right to remain silent in the face of police questioning. The police are required to inform the defendant of this right before they question him, as part of the Miranda warnings, or the information obtained from the defendant is inadmissible in trial.

Sometimes police officers employ what is called a "two-step" interrogation process: they will question the defendant without warning him of his rights, obtain a confession or other information, then inform the defendant on his rights and get the information a second time. The Texas Court of Criminal Appeals has said that such interrogations will be scrutinized to see if police were deliberately trying to subvert Miranda.

In this case, there was a procedural error. No findings of fact were made by the trial court, as required by Texas statute, so the appellate courts could not properly review the trial court's decision. In effect, the appellate courts did not know what happened, so they could not determine whether police misconduct occurred or not. The Court of Criminal Appeals sent the case back to the trial court for findings of fact to be made.

CONVICTION STANDS IF ONLINE RESEARCH BY JUROR DOES NOT CAUSE BIAS

February 25, 2014, by Attorney Christian T. Souza

The Sixth Court of Appeals in Texarkana, Texas announced its decision last month in an appeal involving allegations of juror misconduct. The issue was raised in an appeal from a conviction in Tarrant County, with the case transferred from the Fort Worth Court of Appeals to the Texarkana Court.

The right of every accused person to have a trial by an impartial jury is guaranteed by the United States Constitution. In today's world, maintaining the impartiality of the jury is made more complicated by modern technology, including the Internet and smart phones.

During the jury selection of a murder trial in Fort Worth, one of the potential jurors read an article on his smart phone that discussed the victim's murder and his family. The article did not mention the defendant. The jurors had not yet been told that is was improper for them to seek out information about the case. At the end of jury selection, the judge instructed the prospective jurors not to research the case on their own. A juror informed the judge that he had already read an article about the murder, but that he was still able to be fair and impartial.

The Court of Appeals held that there could not be juror misconduct if the juror did not know he was doing anything wrong. The appellate court said that in order to justify a mistrial, which was requested by the defense counsel, it must be shown that a juror was actually biased by the information that he received. In this case, no such showing was made.

Impartial juries are fundamental to a fair trial, and a fair trial is the only way to ensure a reliable result. Lawyers and judges will say that jury selection is often the most important part of a trial. Jurors must exercise the utmost care when they are called to perform their duty. A defendant's liberty is usually at stake.

FEBRUARY CASES DEVELOPING LAW FOR DEFENSE IN COMMON SITUATIONS

February 18, 2014, by Attorney Christian T. Souza

This month there have been two interesting decisions concerning important situations that are not uncommon in large jurisdictions. While these February 2014 decisions are out of Texarkana and San Antonio, subsequent case law will probably be developed in appeals decided by the Dallas and Fort Worth Courts of Appeals, among others. The jurisdiction of the Dallas Court includes Dallas and Collin Counties. The Jurisdiction of the Fort Worth Court of Appeals includes cases from Tarrant and Denton Counties. Considering the importance of the issues, the losing party in the Court of Appeals will probably seek discretionary review in the Texas Court of Criminal Appeals in Austin, which has statewide authority to take further review, although not required.

THE FIRST CASE HELD THAT CORROBORATED RECORDED STATEMENTS ARE INADMISSIBLE DESPITE A TEXAS LAW PROVIDING AN EXCEPTION.

Texas has a law that requires more warnings and other procedures to be provided to a person under a custodial interrogation than the basic "Miranda rights" required by the United States Supreme Court. One portion of the Texas law requires that no verbal statements can be used in court unless there was an audio-video recording.

There is an exception to the recording requirement if the statements were shown to be true. The law provides two specific "such as" examples: the police find stolen property or a weapon that the defendant says was used to commit the offense.

The Sixth Court of Appeals clarified that the exception for stolen property being found does not apply when the defendant was not advised about his rights. While the Texarkana Court agreed that the section of the law providing the exception could be read to allow unrecorded statements to be used in court when they were properly corroborated, the Court held that the law would be unconstitutional when read to provide an exception to the Miranda warnings requirement.

IN THE SECOND CASE, THE SAN ANTONIO COURT OF APPEALS BROADENED THE REMEDY WHEN THE DEFENDANT IS POORLY ADVISED TO REJECT THE PLEA OFFER

As I have previously discussed, the case law has developed to support claims of ineffective assistance of counsel when a lawyer advises a defendant to reject a plea bargain offer. The traditional ineffective assistance arguments concerning plea offers focus on claims that the lawyer should not have told the defendant to take the offer. In both situations, the appeals court has to ultimately decide what to do about it.

When the plea offer should not have been accepted, the remedy is easy: send the case back to start over, since the plea that the defendant made in connection with accepting the offer was invalid. The case has to start over, since the defendant would not have pleaded guilty if the lawyer had not rendered substandard conduct.

As the case law has generally developed, the appropriate remedy has to be different when the lawyer should have counseled the defendant to accept the plea offer. The normally appropriate remedy is to grant "specific performance" of the offer, meaning that the defendant would be deemed to have accepted the offer.

The San Antonio Court has now essentially held that the remedy with respect to defendant's case should be the same regardless of whether the defendant was poorly counseled to accept or reject the offer. The remedy has to be tailored to the specific harm. In this case, the defendant should be returned to the same position he was in before he entered his plea, regardless of whether it was guilty or not guilty. Thus, a defendant who was misadvised to reject the offer might still go to trial, or at least have renewed bargaining leverage, even though the basis for the appeal was that he should not have been told to reject the offer.

STATE WANTS HIGH COURT REVIEW OF HOLDING THAT PROBATION AND PRISON RECORDS CANNOT SUBSTITUTE FOR LIVE WITNESS TESTIMONY

February 12, 2014, by Attorney Christian T. Souza

The Texas First Court of Appeals at Houston recently considered another instance of ongoing prosecutor and trial judge resistance to protecting a criminal defendant's right to confront witnesses against him, as guaranteed by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This Confrontation Clause case could just as likely come up to the Texas Court of Appeals at Dallas through a Dallas County trial court, and whether it would be via Dallas or Houston, the State of Texas through the Harris County District Attorney has already filed a petition for discretionary review in the Texas Court of Criminal Appeals --the highest court to review criminal cases in Texas-- asking that Court to reverse the decision of the lower Court of Appeals.

In this case, the State presented as evidence the defendant's disciplinary records from prison and probation reports. The defense counsel protested the admittance of those records, which contained detailed descriptions of events as witnessed by the law enforcement personnel who prepared the records. Because the records reflected the subjective, personal views of the law enforcements agents and because those agents did not testify at trial, the defendant's right to cross-examine witnesses against him was violated.

The Houston Court emphasized that these types of records were precisely what the Court of Criminal Appeals had banned in a case in 2005. Even after the Court of Criminal Appeals hands down a decision, the lower appellate courts must remain alert for attempts to circumvent that decision to ensure protection of defendants' rights. The Harris County District Attorney would interpret the prior cases differently. The Court of Criminal Appeals could accept review in order to agree with the Court of Appeals, even though the District Attorney is the one requesting review.

MORE CONFRONTATION CLAUSE LAW - AUTOPSY REPORT

February 5, 2014, by Attorney Christian T. Souza

In December 2013, the Texas Court of Appeals at Houston (14th District) considered whether a medical examiner could testify about an autopsy report that he himself did not prepare without violating the Confrontation Clause of the Sixth Amendment.

The Sixth Amendment of the U.S. Constitution guarantees to every criminal defendant the right "to be confronted with the witnesses against him." This guarantee is called the Confrontation Clause, and in practice, it ensures that a defendant has the right to cross-examination of the prosecution's witnesses.

When a witness's testimony relies upon statements or documents prepared by another person, this is called hearsay, and there is probably a Confrontation Clause issue. This is because the witness is available for cross-examination by the defendant or his attorney, but the person on whose statements the witness is relying is not. This is why hearsay testimony is inadmissible in a trial, unless it meets one of the exceptions.

In this case, the prosecution conceded, and the Court held, that admission of the autopsy report violated the Confrontation Clause, since the medical examiner that prepared the report was not available for cross-examination.

There are strategies to admit certain testimony into evidence that would not otherwise be admissible, especially in the hearsay context, as long as there is still not a Confrontation Clause violation. In the case from December, the State tried and was not allowed to tack the report prepared by the absent medical examiner onto their expert witness's testimony.

Cross-examination is one of the integral parts of the American legal system, and the Court was right to ensure that it was not violated.

TEXAS APPEALS COURT REMOVES DEADLY WEAPON FINDING IN DWI CASE SINCE NOBODY WAS IN DANGER

January 16, 2014, by Attorney Christian T. Souza

In October a Texas appellate court held that a vehicle could not be a "deadly weapon" in that particular felony DWI case. Prosecutors in Texas, including the District Attorney's Office in Dallas County, will often seek deadly weapon findings in various types of felony cases in order to affect parole eligibility. A third DWI can be a felony, and if there was an injury or death, the charge can be felony intoxication manslaughter or felony intoxication assault.

When there is a deadly weapon finding, the defendant will not be eligible for parole until his actual time served --his "flat time"-- reaches one-half of his sentence. When there is no deadly weapon finding, the parole eligibility date is when the actual time served plus good time credits amounts to one-fourth of the sentence. Certain specified offenses are included under the first option, even if there is no deadly weapon; those offenses include murder, serious assaults, and some child abuse offenses. There is no parole for capital murder or for sexual abuse offenses involving continuous abuse or abuse of children under six years old, and the sentences in those cases automatically start at 25 years.

The "deadly weapon" standard is only satisfied when: (1) the car in the manner of its use was capable of causing death or serious bodily injury; (2) the car was used during the offense; and (3) people were actually endangered.

The requirement of "actual" danger can often be important when there was no accident, since hypothetical danger is not enough. In the October case, the fact that the vehicle swerved into "oncoming traffic" was too hypothetical to support the deadly weapon finding. The State offered no evidence and did not make any attempt to show that the defendant's driving put another person in actual danger.

JURY SELECTION DISCRIMINATION IN DRUG CASE

October 31, 2013, by Attorney Christian T. Souza

Jury selection issues often come up in Dallas County, where the numerous felony courts are always busy trying serious cases. The Dallas Court of Appeals will only resolve those issues when procedures are properly followed to first demonstrate the error in the trial court. In October, a significant case involving improper jury selection was before the Court of Appeals in Houston. The Houston Court found that the State had engaged in purposeful discrimination during the jury selection process. As a result the defendant's controlled substance conviction was set aside, and a new trial was ordered.

The process of jury selection is called voir dire. During voir dire, the prosecution and the defense have a limited number of "strikes"--that is, each side can exclude certain individuals from serving on the jury. This policy has a number of useful functions, but it cannot be used as a pretext for purposeful discrimination.

In this case, the defendant was African-American, and the State struck two or three African-American citizens during voir dire. The defendant challenged these strikes, saying that the State had no reason other than purposeful discrimination to eliminate those individuals. The State countered that they struck those people after reviewing their responses to a questionnaire that potential jurors fill out, not for any discriminatory purposes.

After reviewing the trial record, the Court of Appeals concluded that the State's explanation for its striking of two or three African-American citizens was not genuine: their clear purpose was discrimination. When the Court compared the answers that the African-American citizens gave on the questionnaire to the answers given by Caucasian citizens, it found that they were virtually identical. Therefore, the State's explanation was merely a pretext for racial discrimination. The Court reversed the judgment of the trial court and ordered that a new trial take place.

Voir dire is an important part of a criminal prosecution, and it must be vigilantly guarded against abuse by the State. Despite years of efforts, affirmative efforts are still required to assure that racial discrimination has no place in our justice system.

Lawyer Ineffective for Telling Client to REJECT Plea Offer

October 16, 2013, by Attorney Christian T. Souza

In the Fourth Court of Appeals of Texas, located in San Antonio, the Court recently had a meaningful occasion to consider a variation on the normal type of claim of ineffective assistance of trial counsel in the context of plea negotiations. In this case, the lawyer provided ineffective assistance by telling a client to reject a plea offer.

Findings of violations of the right to effective assistance of counsel are usually based on failure to investigate, prepare for trial, or being unfamiliar with basic rules. These problems normally become evident at trial, after a plea bargain has been rejected. Thus, when they are raised in the plea bargain context, it is normally because the lawyer should not have told the defendant to take the plea offer.

The defendant was charged with multiple counts of sexual assault of a child. In the pre-trial proceedings, the prosecution offered the defendant a plea bargain: ten years in prison. Based on his attorney's highly questionable advice that it would be easy to win an acquittal, the defendant declined the plea bargain. The case went to trial, a jury found the defendant guilty, and he was given eight life sentences and one twenty-year sentence.

On appeal, the defendant argued that he received ineffective assistance of counsel during the plea bargaining stage. He argued that his attorney provided ineffective assistance when he recommended rejecting the plea offer. He stated that, had his attorney provided effective assistance, he would have accepted the plea bargain and would only have been sentenced to ten years in prison.

After trial, the defendant's trial counsel signed a sworn statement that admitted his ineffectiveness and incompetence; the lawyer was hired on the case, but he clearly lacked the degree of expertise that was needed. The court found that there was a reasonable probability that the defendant would have accepted the ten-year plea bargain if not for his attorney's incompetent advice. The court also found that the prosecution and the trial judge would have probably also accepted the plea bargain. Therefore, it sent the case back to the trial court with orders that the prosecution offer the original ten-year plea bargain.

COURT OF CRIMINAL APPEALS TELLS POLICE 'GET THE PICTURE': PHOTOS ALLOWED

October 7, 2013, by Attorney Christian T. Souza

The Texas Court of Criminal Appeals recently considered the following question: "Does taking photographs at a public pool permit a police officer to detain the photographer, in the name of a police investigation?" This seems like a case that might come out of the family-oriented suburbs in and around Dallas County, but it came from a sparsely-populated county in Southeast Texas near Shiner and Yoakum.

In this case, the defendant was seen taking photographs of patrons at a public swimming pool. Police were notified and responded quickly. Based on a description of the defendant's car and its location, an officer was able to determine who the defendant was. After the defendant pulled away in his car, the officer followed him briefly and then initiated a traffic stop. The officer asked for and received consent to look through the photos on the camera. The photos were primarily of women and girls in their swim wear. The defendant was arrested and charges of "improper photography" were brought against him.

On appeal, the defendant argued that simply taking pictures of people in public does not give rise to "reasonable suspicion." Reasonable suspicion is what is required for the police to initiate a traffic stop or other detention. The prosecution argued that there were specific, articulable facts from which reasonable inferences could be made that created reasonable suspicion.

The Criminal Court of Appeals sided with the defendant. It said that "[t]aking photographs of people at...public venues is not unusual, suspicious, or criminal." The court concluded that without other facts suggesting "crime was a foot," there was no reasonable suspicion to support the police officer's traffic stop.

The outcome of this case protects citizens that are engaged in everyday activities from police investigation. It also reminds law enforcement that there are standards that have to be met before a traffic stop or other detention is initiated.

DWI STOP UNJUSTIFIED UNLESS OFFICER CAN EXPLAIN TRAFFIC VIOLATION

September 3, 2013, by Attorney Christian T. Souza

A particular basic question almost always comes up when dealing with a charge of driving while intoxicated: Did the police officer make a lawful traffic stop, or did he improperly stop and detain the driver? The issue has important constitutional implications; the Fourth Amendment protects citizens against unreasonable searches, seizures and detentions. A traffic stop case decided by the Texas Court of Appeals in San Antonio in late June considered the Fourth Amendment and its requirement of "reasonable suspicion" to justify the stop.

In January 2012, an officer with the Kerrville Police Department responded to a call reporting an allegedly intoxicated driver. After spotting the vehicle, the officer followed it for about a minute before initiating a traffic stop. In his report, the officer said this was because the driver failed to signal continuously at least 100 feet before conducting a right-hand turn. The driver was then arrested for the offense of driving while intoxicated.

The Fourth Amendment requires that police searches, seizures and detentions be made pursuant to a warrant or justified by reasonable suspicion. Reasonable suspicion exists if a police officer has "specific, articulable facts" that lead him to reasonably infer that an individual "is, has been, or soon will be engaged in criminal activity."

In this case, since the traffic stop was made without a warrant, it had to be supported by reasonable suspicion. The Court of Appeals found that there was nothing to support the officer's unexplained assertion that the driver had violated a traffic law. Because the evidence did not reflect that any "specific, articulable facts" supported the officer's statement, reasonable suspicion did not exist when the officer stopped the driver. Because the traffic stop was made without a warrant or reasonable suspicion, the evidence was properly suppressed by the trial court.

RESTITUTION SET ASIDE

August 22, 2013, by Attorney Christian T. Souza

On July 17, 2013 the Texas Fourth Court of Appeals at San Antonio held for the defendant in an appeal where the defendant argued that the trial court did not have the authority to order her to pay $70,000 to charity as restitution as a condition of her probation on charges involving extortion. The victims of the extortion were unsuspecting men; the charity was not involved.

As a legal matter, "restitution" is money that a defendant is ordered to pay so that she will not be "unjustly enriched" by her crimes. It is the part of her punishment that attempts to "right the wrongs" for which she has been convicted. Accordingly, restitution may only be ordered to be paid to specific victims of the defendant's crime or to the crime victims' funds controlled by the State.

The defendant successfully argued that she could not be ordered to make restitution to a charity because she had not been convicted of a crime against any charities. Restitution is a necessary part of punishment, but it cannot and should not be ordered without adequate consideration of the law. Its purpose is to compensate victims, not to unnecessarily bankrupt defendants.

DISTRICT ATTORNEY LOSES GUN CASE AT DALLAS COURT OF APPEALS

August 20, 2013, by Attorney Christian T. Souza

On August 12, 2013, the Dallas Court of Appeals announced its decision in a case on appeal from the Dallas County Criminal Court Number One, which is presided over by Judge Dan Patterson, a former Dallas defense attorney. The defendant successfully appealed after being convicted by a jury of intentionally carrying a weapon while not on his own property.

The testimony of the investigating police officers only established that the defendant was carrying a weapon in the common area of the condominium complex where he lived. When asked why he had a gun in plain view, the defendant said he performed walk-throughs of the condominium complex, although he was not a state-certified security guard. He was arrested.

The president of the condominium complex testified on behalf of the defendant. She confirmed that he owned a unit in the complex and also testified that every condominium owner possessed an undivided interest in the common areas of the property, including the parking lot, the breezeway and the walkways.

The Court of Appeals analyzed the elements of the crime and determined that the prosecution was required to prove that the defendant was not on his own property. The Court also found that the prosecution had provided insufficient evidence to prove this during the trial. Because a defendant must be found guilty of every element of a crime beyond a reasonable doubt, the Court ordered that the defendant be acquitted.

"Beyond a reasonable doubt" is the standard of proof that the prosecution is held to in criminal trials. In civil trials, the standard of proof is lower. The standard is lower than beyond a reasonable doubt even if the government is trying to take away someone's children; in those cases it must only be "clear and convincing."

DELAY AS DISADVANTAGE

August 16, 2013, by Attorney Christian T. Souza

On July 16, 2013, one the Houston Courts of Appeals (Houston is the only city in Texas that has two appellate courts) issued a ruling concerning delay in criminal cases that is caused by the State. It is common for the defendant to raise constitutional objections when there is a delay in prosecution that is not the defendant's fault.

In 1995, the defendant was accused of sexually assaulting a child. The police officer who investigated the alleged crime was a detective who had only recently been promoted. The detective made several missteps in gathering evidence and in maintaining records of the interviews. As a result, he believed he did not have enough evidence to arrest the defendant for sexual assault of a child. His investigation remained "dormant" until 2003 when, responding to pressure from supervisors to clear out cases that were no longer being actively investigated, the detective deactivated the case.

In 2010, the alleged victim (now an adult) wanted to know why her case had never been prosecuted. A new detective followed up on the case; he worked on it for six months without finding any evidence that had not been uncovered in the first investigation. The new detective then presented his case to the district attorney, who brought charges against the defendant on July 20, 2010--nearly fifteen years after the crime allegedly occurred.

At trial, the defendant argued that the "prosecutorial delay" deprived him of his right to due process of the law and his right to a speedy trial. The trial court agreed with him and dismissed the case.

The prosecution appealed, arguing that the dismissal was legally incorrect because it had not been proved that the fifteen-year delay gave the prosecution a "tactical advantage." The Court of Appeals agreed with the prosecution. The Court of Appeals elaborated that the defendant had only shown that the delay was due to an incompetent and inadequate investigation by the original detective; the defendant had NOT proven that the delay was designed to give the prosecution an advantage. The Court of Appeals sent the case back to the trial court, where it will be heard more than eighteen years after the crime was allegedly committed.

Aside from the constitutional arguments, statutes of limitations are the primary protection against prosecutorial delay like this, but in child sex offenses, there often is no statute of limitations. There was no statute of limitations for the offense that the defendant was charged with.

Warrantless K-9 Sniffing Violates Apartment-Dweller Rights

August 6, 2013, by Attorney Christian T. Souza

On June 11, 2013, the Texas First District Court of Appeals at Houston found that a search warrant had been issued on evidence obtained through an illegal search. The Court of Appeals held for the defendant, reversing the conviction and ordering a new trial.

Officers with the Department of Public Safety received information that the defendant was growing marijuana in his second floor apartment. They conducted surveillance on the apartment and observed a male individual coming and going "well before and after...business hours." Through his "training and experience," an officer believed this to be consistent with drug activity. He called for a canine unit. The dog was led up an outside stairway that led to the defendant's apartment. On the stairway, the dog gave a "positive alert," indicating that there were narcotics in the apartment.

Using the evidence of the drug-detecting dog's alert, officers obtained a search warrant for the apartment and seized marijuana from it. The defendant was arrested and charged with a drug-related offense.

The defendant argued that the drug dog's sniff was an illegal search, violating his rights under the Fourth Amendment, and thus could not be used as a basis for a search warrant. A search warrant must not be issued without probable cause. The U.S. Supreme Court has said that a dog-sniff of a residence constitutes a search. The Fourth Amendment protects citizens against unreasonable searches and seizures, including those performed without a warrant.

In this case, no warrant was issued to authorize the dog-sniff that was performed on the stairway to the apartment. The stairway is considered part of the "curtilage" of the defendant's home, meaning it has the same Fourth Amendment protection as the home itself. The Court of Appeals found that the use of a drug-detection dog on the stairway was an illegal search under the Fourth Amendment.