Dallas Criminal Appeals Lawyer Blog

Earlier this month, the Texas Court of Criminal Appeals reversed a decision of the Second Court of Appeals in Fort Worth regarding suppression of the evidence in a Wise County DWI case. The question was whether there was any indication that the defendant violated the driving-on-the-shoulder law. The Court of Criminal Appeals held that the trial court and the Court of Appeals incorrectly agreed with the investigating officer that the defendant violated the driving-on-the-shoulder law. Without a valid basis for the stop, the DWI investigation was illegal.

Assuming that a driver is operating his vehicle safely and that there is a perceived necessity for driving onto the improved right hand shoulder, there are seven scenarios when it is permissible to drive on the improved shoulder. The degree of necessity does not have to be absolute; the pertinent action only has to be desirable. The seven permissible situations are:

(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.

Scenario number four was in question in the Wise County case. The defendant used the improved shoulder to pass a slow car in front of him at a railroad crossing. Since there was only one lane of traffic going each way, it was safer to use the shoulder then to drive into the oncoming lane of traffic.

Like any traffic law, the statute provides probable cause requirements. There can never be probable cause to stop a motorist for an alleged violation of the driving-on-the-shoulder statute unless there is reasonable cause to believe that the defendant is not taking one of the specified courses of action. Since the defendant was obviously passing a slower vehicle, there was no way for the officer to reasonably believe that the defendant was not taking one of the permissible courses of action. The Fort Worth Court erred in attempting to circumvent the probable requirement by characterizing the list of scenarios as affirmative defenses to the sufficiency of the evidence that the defendant would have to raise.

The Texas Sixth District Court of Appeals in Texarkana reached a decision yesterday regarding jury instructions in a DWI case out of Harrison County. There was no dispute that the defendant was intoxicated. The question was whether the trial judge made a mistake by defining the word "operate" in giving instructions to the jury about deciding whether the defendant committed DWI by operating a motor vehicle without the use of his normal faculties due to impairment from use of alcohol or drugs.

The decision is important because it illustrates the common appellate strategy of finding fault in the jury instructions as an alternative to an argument that the evidence is insufficient to support the conviction. Even when the evidence is sufficient to support a conviction, the jury has to be properly instructed about applying that evidence. It is improper for a trial judge to suggest any particular interpretation of the evidence in giving instructions. A trial judge should give standard legal definitions for legal phrases and words that might not necessarily be understood by jurors, but definitions about words and phrases that have common meaning should be avoided.

The motor vehicle was a motorcycle that was not running when the officer arrived. There were indications that it has been running, meaning that it had been operated. The indications included that the defendant was found on an isolated country rode; that he fell over while he was on the motorcycle; that he tried to kick start it; and that he had the keys. The evidence might not have been strong enough to convince a different jury that the defendant operated the vehicle, but appellate analysis only requires sufficient evidence from which a rational jury could have found that there was evidence of operation beyond a reasonable doubt.

The Court of Appeals held that the trial judge should not have defined the word operate to restrict its meaning to "exerting personal effort to cause the vehicle to function," since that definition was a restriction on the jury from defining the term operate according to common parlance. The definition that was given focused the jury's attention on the evidence concerning the defendant's attempt to start the motorcycle. The definition effectively told the jury not to consider whether there were merely preparatory attempts to operate, as the term would be commonly understood. While the evidence was sufficient to support the conviction, the jury could have exercised their prerogative, had they been properly instructed, to find the defendant not guilty on the basis that he was just making preparatory attempts to operate.

This week a majority of a panel of the Houston Court of Appeals (14th District of Texas) held that an officer did not have a legal basis to stop a driver in Waller County for the alleged traffic offense of impeding traffic. Consequently, the marijuana that was seized after the stop cannot be used in court as evidence against the passenger, who admitted knowing about it, and the charges that were filed against the passenger will have to be dismissed.

In order to conduct a traffic stop, officers have to have a reasonable suspicion or probable cause that a traffic offense or some other crime has been committed. Officers have to be able to articulate reasons for thinking that they have reasonable suspicion of traffic offense; they cannot just say that they had a hunch that the driver was violating the law. The standard that is often quoted in the case law is: "Reasonable suspicion can only be established when the officer can express some minimal level of objective justification for the detention, i.e., when the officer could conclude that an offense is being committing by pointing to specific and articulable facts and to rational inferences from those facts."

In the Houston case, the officer said that he pulled the vehicle over for the traffic offense of "impeding traffic" because (1) there had been some congestion in one of the lanes on the highway where the vehicle was driving, (2) there was moderate traffic at the time of the stop, and (3) at the time of the stop, the vehicle was going 52 miles per hour in an area where it was allowed to go up to 65 miles per hour. The officer did not say whether the vehicle was traveling in the lane where the congestion had been.

The Court of Appeals concluded that the stop was invalid because there was just no evidence that the normal and reasonable movement of traffic was impeded by the defendant's vehicle. There was no indication that the defendant's vehicle caused the congestion; there was no evidence that the congestion was unusual for the time of day, or considering the weather; and there was no evidence about any vehicles being impeded.

The Texas Court of Criminal Appeals ruled last week that a trial judge erred by preventing the defense from putting the term "reasonable doubt" in context in discussing the State's burden of proof during a capital murder trial. The holding reversed the ruling of the Dallas Court of Appeals that had affirmed the conviction and life sentence that was imposed in the 292nd Judicial District Court in Dallas County. The trial judge believed that it was improper for the defense to contextually define reasonable doubt during the jury selection process because the Court of Criminal Appeals previously deleted a vague, confusing legal definition of reasonable doubt from the standard jury charge.

The prosecutors have the burden of proof in every criminal action. The prosecutors make the allegations and have to prove those allegations in order to send someone to the penitentiary. Since the citizens of our country value keeping innocent people from being convicted, there is no legal burden on the defendant to prove or disprove anything; the only question in a criminal prosecution is whether the State has proven their allegations beyond a reasonable doubt. Our constitution and laws guarantee that the defendant will be able to select jurors who will apply the law, including holding the State to the burden of proof of beyond a reasonable doubt.

The Court of Criminal Appeals affirmed the standard method that the defense had sought to use for defining reasonable doubt. As with many important concepts, the only way to effectively define reasonable doubt is to compare it to what it is not. Under the standard method for defining reasonable doubt, the lawyers discuss the lesser burden of proof in civil cases, where money is involved, and the lesser burden in cases where the government is trying to commit somebody to a mental health institution or is trying to take somebody's children away. In civil lawsuits, the standard of proof is "preponderance of the evidence," meaning anything more than 50 percent of the evidence. In parental rights cases, the standard is "clear and convincing." In other words, if the State wants to put somebody in the penitentiary, they have to come forward with more evidence then it would require to take away all of somebody's money or children.

The Court of Criminal Appeals remanded the case to the Dallas Court of Appeals for a harm analysis, meaning that the Court of Appeals must now decide whether the error can be legally disregarded in the particular case in question, which would allow the conviction to be affirmed despite the error. Regardless of the outcome in the case that has been decided, the Court of Criminal Appeals has made it clear to trial judges that they must allow the defense to contextually define reasonable doubt in jury selection and in jury argument.

Last week the Texas Court of Criminal Appeals determined that a defendant was entitled to have a new trial because members of his family were excluded from the courtroom during the jury selection process. The Court of Criminal Appeals reversed a decision from the State of Texas Eleventh District Court of Appeals in Eastland in a case that originated out of Abilene. The defendant had been convicted of aggravated sexual assault of a child and of indecency with a child, and he received a life sentence.

Anybody who is charged with a crime has a constitutional right under the Sixth Amendment of the federal constitution for the courtroom to be open to all members of the public. Constitutional requirements are meant to ensure fairness and to foster perceptions of legitimacy of government authority. If trials were held in secret, the government could not be questioned.

Still, the application of any constitutional right has to be balanced with countervailing concerns. In closing court proceedings to the public, the other considerations include jury-panel contamination and courtroom security.

The trial was held in a small courtroom, which gave rise to concerns about jury-panel contamination, but the trial judge did not consider reasonable alternatives to excluding the defendant's family members, and the trial judge never identified any real threat to concerns about jury-panel contamination and courtroom security. The trial judge said that he "believed" that the proximity of the defendant's family members to the jury panel would make those jurors "uncomfortable and reticent to fully express their feelings, attitudes and possible prejudices."

Notably, the Court of Criminal Appeals determined that reversal was necessary even though it could not be directly shown that the constitutional deprivation caused the conviction. When the constitutionally tainted portion of a trial encompasses the entire jury-selection process, it "perforce" necessitates a new trial.

On February 29, 2012, the Texas Court of Criminal Appeals in Austin, the highest criminal court in Texas, reversed a conviction against and acquitted a Bee County defendant who was convicted for increasing the dosage for Lortab pills (a combination of acetaminophen and hydrocodone) that was prescribed by his doctor. The result brings to mind a Dallas County codeine case where the Court of Criminal Appeals rendered a reversal and acquittal on December 7, 2011, reversing an earlier decision by the Dallas Court of Appeals, which affirmed a jury trial conviction that was entered in the Drug Court for the District Courts in Dallas County.

While the December 7, 2011 Dallas County codeine case was more complicated than the February 29, 2012 Bee County codeine case, both cases illustrate the basic principle of constitutional law, and of evidence insufficiency, that a defendant can only be convicted for what he is charged with. The State cannot charge somebody with robbery and obtain a robbery conviction by proving murder. While some may decry it as a "legal technicality," the rule applies even when the offenses may sound similar, as in the Bee County case, and especially where there are specific drug characteristics and lesser penalty groups that have to be taken into account, as in the Dallas County codeine case.

In the Bee County Lortab case, the defendant altered a prescription form; the doctor prescribed 2.5 milligrams, which the defendant changed to 7.5 milligrams. The prosecutor charged the defendant with the offense of attempting to obtain Lortab through use of a fraudulently created prescription form, but the State relied on evidence that the defendant fraudulently altered information that was handwritten on a legitimate prescription form, which was a different offense under the Texas Penal Code.

The codeine in the Dallas County case was included in about eight ounces of antihistamine codeine syrup. The syrup had a codeine concentration of about 158 milligrams (.0003 pounds) per 100 milliliters. The codeine concentration was so minuscule that the syrup was only worth about $180.00, yet the defendant received a sentence of 21 years of confinement. The absurdity transpired, as one of the judges put it, because "[t]he law concerning possession of codeine is confusing and incoherent."

To correctly prove that the defendant in the Dallas County codeine case committed a first-degree offense, as the State was determined to have alleged, the codeine concentration had to be more than 1.8 grams per 100 milliliters. Unlike the quantity-focused approach for categorizing most controlled substances, the penalty group in a codeine case depends on qualitative properties, including proof of the absence of specific factors, which goes against the normal way of proving that substances are illegal.

The acquittals in the Bee County Lortab case and in the Dallas codeine case could each have been avoided if the State simply would have noticed the problem and re-drafted the indictments before trial in order to just allege what they would have been able to prove.

Earlier this month, the Texas Court of Criminal Appeals affirmed a 2010 decision by the Fort Worth Court of Appeals, which held that the Tarrant County trial court could not "stack" two sentences of confinement when the charges were earlier reduced from sexual to non-sexual offenses. A court stacks sentences when the court orders for the sentences to run one after the other.

The defendant was originally granted probation in both cases. The dispute arose when the trial judge revoked probation in both cases and stacked the sentences of confinement in the penitentiary. Instead of receiving two ten-year sentences to run concurrently, the defendant received two ten-year sentences to run consecutively, meaning one after the other.

The law was already clear that a trial court can stack sentences for multiple sex crimes arising from the same criminal episode when the cases are handled in the same proceeding, even though different rules apply for other offenses. The Court of Criminal Appeals has now made it clear that sentences that are reduced from sexual to non-sexual offenses do not somehow remain sexual offenses for purposes of the stacking statute. All nine judges of the Court of Criminal Appeals agreed about the result, which is usually not the case.

The stacking issue has been an important question because it offers prosecutors some flexibility in offering plea bargains in sex abuse cases. Plea offers involving probation or a conviction for a sex offense can be hard to accept for defendants because the law requires registration as a sex offender even if the prosecutor would not require it. Sex offender registration can make it impossible to find a place to work or live, and non-compliance can undermine a defendant's ability to live up to conditions of probation.

The solution for prosecutors has been to offer plea bargains where the defendants do not have to be convicted or placed on probation for a sex offense; the offense will be reduced to the offense of "injury" to a child, which is defined as physical abuse rather than sexual abuse. As long as the offense is not a sex offense, the law that requires registration is not triggered.

Last week the United States Court of Appeals for the Fifth Circuit held that a defendant's statements could not be used against him when the statements were obtained by law enforcement officers without reading the defendant his rights after they entered the defendant's home. The officers entered the defendant's home in Crane County, near Midland, Texas, to investigate whether the defendant had been "sexting" with a minor.

It is often misunderstood that every person who is arrested must be read his rights. Those "rights" are the rights to remain silent, that any statement may be used against him, his right to have a lawyer present for questioning, and his right to have a lawyer appointed if necessary.

A defendant must be read his rights only when he is subject to "custodial interrogation." A custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. A person is taken into custody when a reasonable person in the defendant's shoes would not feel at liberty to terminate the interrogation and to leave. To qualify as interrogation, the questions have to be designed to elicit incriminating responses; questions that are normally attendant to arrest, custody, or administrative booking procedures do not constitute as interrogation.

The Court in last week's case considered that the officers temporarily handcuffed the defendant when they entered his home; that the officers separated the defendant from his family for questioning; and that they supervised the defendant while in the bathroom and on the phone. The Court held that going through the motions of telling the defendant that it is a "non-custodial interview" does not preclude a finding of custodial interrogation; rather, the circumstances must demonstrate that a reasonable person would think that he was not in custody in order for the interview to be non-custodial.

The United States Court of Appeals for the Fifth Circuit recently held for a defendant in a child pornography possession case where there were multiple users of the computers in question. The case should have significant implications in the Dallas and North Texas area, where there is a high volume of child pornography cases. The Fifth Circuit is based in New Orleans, but has direct control over criminal cases in the federal trial courts that are located in Dallas and across the State of Texas, and its decisions can be important considerations for the trial and appellate courts where cases are brought by the State of Texas.

As with possession of drugs or firearms, proof of possession must establish that the defendant knew about the contents on the computer and that he had personal control over those contents. In drug cases, for example, a truck driver might not be aware that drugs have been packed in containers or embedded into some part of the truck. In computer child pornography cases, the government has to prove that the defendant used the computer.

The question in the December child pornography case from the Fifth Circuit was whether there was enough proof to convict the defendant when there were indications that his deceased father might have been the person who downloaded the images. The defendant's father had access to the computers in question; the defendant's father was known to have a "problem" with looking at child pornography; and the defendant's father had even asked another relative to help destroy the computers. Also, while one of the computers had multiple users and different passwords associated with those users, the forensic evidence could not show whether the occurrences in question transpired when someone logged in with another user's password or when another user did not log out.

There must be more than mere presence of child pornography on a computer to establish actual knowledge that the pornography existed on the computer. While a defendant can be guilty of possessing child pornography when that person has exclusive possession of the computer, in cases where there are multiple users, there must be substantial evidence to prove that the defendant had knowledge that the images were on the computer.

Mandate issued on January 6, 2012 in a case where the Dallas Court of Appeals held in October that Murphy, Texas police department officers lacked reasonable suspicion to stop the defendant's vehicle on suspicion of burglary and to conduct a search that turned up a small quantity of marijuana. The defendant admitted that there was marijuana in his vehicle when the investigating officer advised that the vehicle would be searched since there was an odor of marijuana. The defendant stated that the marijuana did not belong to him, but he was still charged with possessing two ounces or less of marijuana, which is a class B misdemeanor.

Once mandate issues, the case is sent back to the trial court and the prosecutors have to reach an official decision about whether to conduct a second trial. Since the prosecutors are left without any evidence, the only rational course of action will be to drop the case.

In the case that involved the Murphy Police Department, prosecutors argued that there was a legal basis for stopping the defendant in a residential area because (a) there had been five vehicle burglaries in the area during the past year; (b) it was 1:00 in the morning; (c) the officer saw the defendant's brake lights activate, the headlights come on, and the vehicle immediately drove away; (d) the license plate came back registered to a person residing in a nearby town, Sherman, Texas; and (e) four people occupied the vehicle.

In other words, according to the Collin County District Attorney, a family or group of friends cannot visit family or friends in another town after 1:00 a.m. without investigating area crime statistics first to make sure that they would not appear to be criminals. The Dallas Court of Appeals rejected that argument on the basis of basic Fourth Amendment jurisprudence. As a starting point, an officer cannot stop someone based upon a mere subjective hunch that cannot be explained with reference to objective factors.

The Dallas Court of Appeals provided examples where there probably would be sufficient cause for an officer to stop a vehicle at night in a residential area on suspicion of involvement in recent burglaries. It would probably be reasonable for officers to stop a vehicle if there was more than one occupant and someone wearing dark clothing was seen running from the house towards the car, which appeared to be weighted down with stolen items, and there was a person acting as a lookout. Another example where there probably would be an adequate basis to stop would be seeing a person who was dressed all in black emerge from the shadows of an apartment complex in an area that had recently experienced several car burglaries, and that person was running towards a car that was occupied with two other people and had its engine running with its lights off.

The Texas Sixth District Court of Appeals in Texarkana recently overturned a probation revocation order out of the Seventh District Court in Tyler in Smith County. The issue involved a non-citizen's failure to comply with the trial court's order that, as a condition of her probation, she had to return to Mexico unless she could obtain legal status from the federal government.

A defendant who is placed on probation must accept limitations on his freedom. Those limitations have to be restricted to aspects of the defendant's life that are related to the alleged offense and which must be taken into account for effective probation supervision. A defendant certainly does not give up all of his rights by accepting probation as a form of punishment. Moreover, a defendant has the rights to being warned about the conditions of probation and to notice and hearing if there is an allegation that the defendant has violated his conditions of probation.

Being placed on probation is a contract, not a privilege. Unless a particular condition of probation is void, a defendant waives the right to object later if the defendant does not object to the validity of the condition of probation at the time when the defendant is warned about the condition. In other words, a defendant cannot normally accept a condition of probation at the time when he is placed on probation and then complain that the condition was invalid when a motion is later filed alleging that the defendant violated that condition of probation.

The question in the case in the Tyler Court of Appeals was whether the condition regarding compliance with federal immigration requirements was void to begin with. The defendant was originally placed on probation with three conditions relating to immigration. The trial court eventually revoked the defendant's probation because she arguably violated federal immigration law by failing to leave the country after unsuccessfully attempting to obtain legal status by a specific deadline.

The Court of Appeals held that the conditions of probation regarding federal immigration law were void. The trial court lacked the power to determine questions of federal law. Under the United States constitution, the regulation of immigration is unquestionably an exclusive federal power. Since the immigration conditions were void to begin with, the defendant did not have to object at the time when she was placed on probation.

The Texas Court of Criminal Appeals reversed a decision yesterday where the Fourth Court of Appeals in San Antonio allowed Bexar County trial prosecutors to make an end-run around basic constitutional hearsay protections in a case where the defendant was accused of sexually abusing his step-daughter.

The confrontation clause of the Sixth Amendment of the United States constitution prevents prosecutors from using hearsay evidence at trial unless the person who made the alleged statement was subject to cross-examination when the statements were made or is available to testify at the time of trial.

Under Texas evidence rules, there is a well-established hearsay special exception in child abuse prosecutions for certain "outcry" statements that were made by the alleged victim to an adult. In child abuse cases where the alleged victim is under 14 years old, the trial judge is required to hold a hearing before trial to make an exceptionally narrow determination regarding whether the special outcry exception applies. The trial judge held that the exception was triggered in the case that was decided by the Court of Criminal Appeals yesterday.

Once the outcry exception is allowed, the testimony of the adult about what the child allegedly said can be used at trial even if the adult is not available for cross-examination if the adult raised the alleged statements in an earlier court proceeding where the adult was subject to cross-examination. In yesterday's case, the prosecutors argued that the alleged outcry statement was admissible because the adult testified about it, subject to cross-examination, during the proceeding to determine whether the adult's testimony about the outcry statement was admissible.

The Court reminded the prosecutors that the purpose of the pre-trial hearing was to determine whether the outcry exception was triggered. Since the outcry hearing had nothing to do with whether the jury should believe the alleged victim, the adult's testimony during the outcry hearing should not have been read to the jury at trial when the adult was not present at trial.

In a DWI case out of Collin County that went up to the Texas Court of Criminal Appeals in Austin through the Dallas Court of Appeals, the Court of Criminal Appeals decided in November that the conviction was invalid because jury instructions about the "synergistic effect" of alcohol and hydrocodone (a synthetic opioid/pain reliever) were defective. The Court of Criminal Appeals agreed with the Dallas Court of Appeals that giving the defective instructions was so harmful to the defendant that the conviction had to be reversed.

When the defendant was pulled over, the investigating officer, who was a Texas Department of Public Safety Trooper, conducted field sobriety tests and searched the defendant's vehicle. The DPS trooper indicated that he found some kind of hydrocodone packet with four missing pills in the defendant's vehicle. The packet could not be produced by the Collin County District Attorney's Office at trial, although there was testimony from a drug recognition expert about the dangerous effects of mixing hydrocodone and alcohol.

The prosecutors obtained jury instructions that, if the defendant used medication or drugs that would enhance the effects of alcohol, it would be the same as consuming alcohol alone. The Court of Criminal Appeals found that there was not enough evidence that the defendant ingested hydrocodone or any other prescription medicine; therefore, providing "synergistic effect" instructions was a serious and harmful error.

Last week the Texas Court of Criminal Appeals handed down a defense victory in a Collin County DWI case where the Wylie Police Department took an involuntary blood sample from the defendant without being able to explain why they thought it might lead to evidence of intoxication. The Court of Criminal Appeals overruled the Dallas Court of Appeals.

An involuntary blood extraction is only permissible in an ordinary DWI case (no accident or injuries) when there is probable cause to believe that evidence of intoxication will be found by testing the defendant's blood. Blood-alcohol concentration decreases by about 0.015 to 0.020 every hour for a person who is slightly above the legal limit of 0.08. Assuming that the defendant was intoxicated and stopped drinking when he was arrested, there would still be some evidence of intoxication in the defendant's blood for up to four hours later.

In last week's case, the Wylie Police Department officer submitted an application for a blood warrant to a magistrate around 1:00 a.m. The officer stated in his affidavit in support his application that the initial stop and arrest occurred "the previous day." While it could have been assumed that the arrest transpired just a few hours earlier, nothing in the affidavit stated the time of day or whether the stop and arrest occurred during the day or at night. There was no probable cause to justify the warrant for the blood draw since the initial stop and arrest could have occurred 25 hours earlier given the information supplied in the affidavit.

The Court compared an early-morning blood warrant affidavit that was authorized in a different case, earlier this year, even though the time frame was not specified in hours in that case. Comparison of the date of arrest with the time of the warrant made the short interval obvious in the earlier case.

It is baffling that there could be any question about the absence of probable cause when there is no way to determine whether the defendant might still have any alcohol in his system. It was clear that there was an easily comprehensible lesson: at risk of allowing the government to stick needles into people (and whatever else might come next) for no good reason, appellate courts should be less forgiving of sloppy blood warrant affidavits and lax oversight by magistrates.

On October 18, 2011, the Texarkana Court of Appeals joined the Courts of Appeals in San Antonio, Eastland, El Paso and the First District of Houston in holding that a defense lawyer violates his duty to provide effective assistance of counsel by failing to warn his client when deportation is obviously mandatory following a guilty or no contest plea (most common offenses are applicable). Simply referring the defendant to an immigration lawyer is not enough.

I have discussed and discussed and discussed this broadly important issue.