Monthly archive

April 2011

April 2011 SDR – Voice for the Defense Vol. 40, No. 3

Voice for the Defense Volume 40, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Walker v. Martin, 131 S. Ct. 1120 (U.S. 2011); Reversed: Ginsburg (9–0)

A California state court convicted Charles Martin of robbery and murder and sentenced him to life in prison without the possibility of parole. Subsequently, Martin filed a round of habeas petitions in state court—all of which were denied. He then raised several new claims in petitions for federal habeas relief in a California federal district court. The court refused to examine the claims because they were not exhausted in state court. After Martin exhausted these last claims in state court, he returned to federal court for federal habeas corpus relief. The district court again denied the petition, relying on California’s statute of limitations for filing state habeas corpus petitions. On appeal, the Ninth Circuit reversed the district court, holding that California’s statute of limitations could not operate as an independent and adequate state ground to bar federal habeas corpus review. The court reasoned that California’s statute of limitations was not sufficiently defined, nor consistently applied such that it could bar Martin’s petition.

Held: The California rule requiring state habeas petitions to be filed “as promptly as the circumstances allow” constitutes an independent state ground that is adequate to bar habeas relief in federal court.

Fifth Circuit

Sixta v. Thaler, 615 F.3d 569 (5th Cir. 2010)

Agreeing with Thompson v. Greene, 427 F.3d 263 (4th Cir. 2005), the Fifth Circuit held that under the Federal Rules of Civil Procedure and the Rules Governing Section 2254 Cases, the habeas respondent (i.e., the custodian) is required to serve the respondent’s answer, plus any exhibits thereto, upon the habeas petitioner. Here, respondent did not attach any exhibits to his answer, and thus there were none to serve. The Fifth Circuit declined to reach the question about whether the Constitution or applicable procedural rules required respondent to attach some portion of the state court records as exhibits to the answer and then to serve those exhibits with the answer pursuant to applicable procedural rules.

Mathis v. Thaler, 616 F.3d 461 (5th Cir. 2010)

Death-sentenced Texas prisoner could not raise, in a successive habeas petition, his claim that execution was unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002) (holding the Eighth Amendment bars execution of the mentally retarded), because prisoner did not show his Atkins claim was “previously unavailable” as required by 28 U.S.C. § 2244(b)(2)(A). Particularly, Atkins was decided in 2002, and petitioner did not show why he could not have raised his Atkins claim in his first federal habeas petition, in 2003. Moreover, even if his petition met the standards of 28 U.S.C. § 2244, the petition was time-barred under the AEDPA’s statute of limitations, and the court did not abuse its discretion when it denied equitable tolling.

United States v. Rains, 615 F.3d 589 (5th Cir. 2010)

(1) In prosecution for manufacture and distribution of methamphetamine, police had sufficient reasonable suspicion of criminal activity to justify an investigatory stop of defendant’s car. Particularly, police received information that (1) a woman in this car had just purchased an unusual quantity of concentrated liquid iodine (an ingredient used in the manufacture of meth) from a veterinary clinic, (2) the same woman had made repeated purchases of iodine from the same clinic over the past 9 months, and (3) the person had traveled to a rural area 35 miles away to make the purchases. It was reasonable for police to infer from previous discussions with the veterinarian about typical sales of iodine that the purchase of such a large quantity in a relatively short time period indicated that the purchaser intended to use the iodine illegally.

(2) Agreeing with the majority of a split panel in United States v. Nelson, 484 F.3d 257 (4th Cir. 2007), the Fifth Circuit held that defendant’s prior conviction for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) was a “felony drug offense” that could, in conjunction with another prior conviction for a “felony drug offense,” properly enhance defendant’s sentence to mandatory life imprisonment without release, pursuant to 21 U.S.C. §§ 841(b)(1)(A) & 851. Although 18 U.S.C. § 924(c) could also be violated by possession or use of a weapon in connection with a crime of violence as well as a drug trafficking offense, it was proper to examine the record of conviction to determine that defendant’s § 924(c) offense had been tied to drug trafficking, not a crime of violence. The Fifth Circuit expressed disquietude that its decision could be read to support a double enhancement where the same underlying conduct gives rise to both a substantive drug offense and a § 924(c) conviction.

Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010)

The Texas courts did not unreasonably apply clearly established Supreme Court law in rejecting death-sentenced defendant’s claim that the state trial court violated his constitutional rights by failing to require a unanimous verdict as to which two or more decedents defendant murdered. The principal Supreme Court decision on the issue of what the Constitution requires by way of jury unanimity—Schad v. Arizona, 501 U.S. 624 (1991)—produced no majority opinion, and neither the plurality opinion or concurrence of Justice Scalia (who provided the necessary fifth vote) provides a clear answer to the question. Moreover, the very general nature of each of these analyses means that a broader range of outcomes will be considered reasonable. In any event, even if there were some error in the failure to require jury unanimity, defendant failed to show prejudice from any such error because the jury was also permitted to find defendant guilty under Texas’ law of parties even if he did not personally shoot any of the victims, and the evidence of defendant’s guilt under the law of parties was overwhelming and virtually unchallenged. For the same reasons defendant suffered no prejudice from any deficient performance by his attorney in failing to request a unanimity instruction.

United States v. Minnitt, 617 F.3d 327 (5th Cir. 2010)

District court did not reversibly err in revoking defendant’s supervised release. With respect to defendant’s due-process confrontation objection to the introduction of lab reports and testimony about their contents, court erred in failing to articulate the basis on which it found good cause to deny defendant confrontation of the lab technicians; however, this error was harmless because the record showed that defendant’s interest in confronting the lab technicians was minimal, and that there was indeed good cause to deny confrontation. Nor did the court violate defendant’s due-process confrontation rights by allowing the probation officer to testify to the feasibility of defendant’s false-positive theories; although the officer’s hearsay testimony about defendant’s missed counseling session presented a more troublesome due-process confrontation question, unchallenged testimony supported the finding that defendant violated this condition of supervised release.

United States v. Carales-Villalta, 617 F.3d 342 (5th Cir. 2010)

Where the Fifth Circuit had previously remanded case on ground that eight-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C) was erroneous, government was not, on remand, precluded from presenting (and district court was not precluded from considering) additional evidence not presented at the first sentencing proceeding that the conviction qualified as an “aggravated felony.” In the absence of a specific mandate, and in the interest of truth and fair sentencing, the court may consider any corrections and additions relevant to the issues addressed by the Fifth Circuit on appeal. Therefore, when the case is remanded for resentencing without specific instructions, the court should consider any new evidence relevant to the issues raised on appeal. Although the Fifth Circuit may mandate a particular result on remand, or limit consideration on remand to particular evidence when it is prudent to do so, it did not do so in the prior decision. Therefore, court did not reversibly err in once again applying the eight-level enhancement (and imposing the same sentence) based on the new documentary evidence.

United States v. Gonzales, 620 F.3d 475 (5th Cir. 2010)

Based on the record before the Fifth Circuit, it was unclear whether the district court, upon revocation of defendant’s probation, considered her “financial resources,” as required by 18 U.S.C. §3572(a)(1) & (2), before ordering her to immediately pay the $4,000 balance of a previous fine. Accordingly, the Fifth Circuit vacated the order and remanded for reconsideration so that the court could clarify whether it had considered defendant’s financial resources before ordering immediate payment of the fine.

United States v. Bautista-Montelongo, 618 F.3d 464 (5th Cir. 2010)

District court did not reversibly in applying a two-level enhancement under then-USSG §2D1.1(b)(2)(B) (now USSG §2D1.1(b)(2)(C)) for being the captain, pilot, or navigator of a boat carrying a controlled substance. Following the three other circuits that addressed the issue, the Fifth Circuit rejected defendant’s argument that this enhancement applies only when a defendant is a professional captain or pilot or has some higher degree of special skill, such as high seas navigation; special skills, as defined in USSG §3B1.3, are not required for this enhancement.

United States v. Dowl, 619 F.3d 494 (5th Cir. 2010)

Where defendant was prosecuted for fraudulently obtaining government funds to rebuild a home in New Orleans after Hurricane Katrina, defendant was not entitled to have the Guideline loss amount under USSG §2B1.1 offset by the $46,000 paid by the Road Home program to the Small Business Administration (SBA) upon the Road Home program’s discovery that defendant had already received SBA funds for the same purpose. The Fifth Circuit held that defendant’s case was different from amounts repaid before a fraud was discovered, or even the money returned to investors in a Ponzi scheme, both of which do result in offsets. Defendant did not herself return the funds; moreover, defendant would have received all the funds if the federal government had not discovered the overlap. The Fifth Circuit refused to construe the Guidelines to give credit to defendant for the detection and required repayment of overlapping funds by the government—the defrauded party.

United States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010)

Two judges (King and Jolly) of a three-judge panel held that defendant—convicted of possession of a firearm (which was a sawed-off shotgun)—was properly sentenced as a “career offender” under USSG §4B1.1, but all three judges wrote separately. Judge Jolly would hold that in determining whether the “instant offense” is a “crime of violence” for purposes of the “career offender” Guideline, a sentencing court is not bound by the elements-based categorical/modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), but rather is specifically authorized to examine the conduct alleged in the indictment; this approach was satisfied here because the indictment to which defendant pleaded guilty specifically charged him with violating 18 U.S.C. § 922(g)(1) by possessing a sawed-off shotgun. Judge King agreed that an elements-based categorical/modified categorical approach was not required, given the Guidelines’ explicit reference to conduct; she declined, however, to rely on defendant’s plea to the indictment as constituting an admission to all the facts contained therein (including the identity of the firearm as a sawed-off shotgun); instead., she would hold that where the “career offender” enhancement turns on the characterization of the “instant offense” rather than that of a prior offense, it is not improper for the sentencing judge to make the critical factual findings in the same way as any other sort of finding at sentencing. Judge Stewart dissented, opining that (1) the categorical/modified categorical approach does apply, and (2) under that approach, there was no cognizable evidentiary basis for the conclusion that the firearm in question was a sawed-off shotgun.

Court of Criminal Appeals

Appellant’s PDRs

Ex parte Chamberlain, __S.W.3d__ (Tex.Crim.App. No. 0076-10, 2/2/11); COA vacated & remanded

Appellant pled guilty to sexual assault, a third-degree felony, and successfully completed his community supervision term. However, because of the offense, appellant was required to register as a sex offender for the rest of his life.

CCA granted appellant’s PDR issue: Did COA err in holding that the lifetime registration requirement imposed on Chamberlain did not violate his substantive due process rights because there is a statutory mechanism by which Chamberlain can seek to be excused from further registration? After CCA granted review, the Council on Sex Offender Treatment (CSOT) published its list of reportable convictions or adjudications for which a person must register, which makes clear that individuals who have been convicted of sexual assault, like appellant, are not eligible for de-registration. The CSOT’s list altered the legal landscape for individuals eligible for early termination from the sex offender registration requirements.

Held: COA did not have the benefit of this information when addressing appellant’s due process claim. The court therefore proceeded under the theory that appellant could avail himself of the lifetime registration requirement; this was the court’s sole basis for concluding that his substantive due process rights were not violated. CCA gives COA opportunity to reconsider appellant’s claim.

Ford v. State, __S.W.3d__ (Tex.Crim.App. No. 0440-10, 2/2/11); COA reversed, trial court affirmed

A jury convicted appellant of failing to comply with sex offender registration requirements, a third-degree felony. COA held that appellant’s prior conviction for failure to comply with sex offender registration increased the level of appellant’s current offense.

Held: COA erred to rely on dicta in State v. Webb, 12 S.W.3d 808 (Tex.Crim.App. 2000), and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000), to conclude that Tex. Code Crim. Proc. art. 62.102(c) increases the level of the offense. Under its plain language, 62.102(c) states that “punishment for an offense . . . is increased to the punishment for the next highest degree of felony.” Therefore, appellant’s prior conviction did not increase the grade of his offense. The prior conviction increased only the punishment level.

Cada v. State, __S.W.3d__ (Tex.Crim.App. No. 0754-10, 2/9/11); COA reversed, acquittal ordered

Appellant was charged with the third-degree felony of retaliation for intentionally and knowingly threatening to harm Arthur Finch by an unlawful act in retaliation for or on account of the service of Finch as a witness. CCA granted review to determine whether a variance between the indictment allegation of one statutory element—the description of the complainant as “a witness”—is material when the proof shows that the complainant was either a “prospective witness” or “an informant”—two different statutory elements.

Held: A variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). Therefore, the evidence was legally insufficient to support appellant’s conviction for retaliation against Finch on account of his service as a witness.

Stokes v. State, __S.W.3d__ (Tex.Crim.App. No. 0825-10, 3/2/11); PDR refused

Appellant was convicted of aggravated robbery involving the stealing of a handgun that occurred on January 21, 2005.He was convicted separately for the theft of that same gun under the theory that he possessed it on February 19, 2005, knowing it was stolen. COA held that these offenses were different for double jeopardy purposes because (1) the dates of the offenses were different, and (2) the charged theft required the additional element of knowing that the gun was stolen.

Keller’s dissent: These holdings seem inconsistent with the caselaw that says theft is not a continuing offense.

State’s PDRs

Derichsweiler v. State, __S.W.3d__ (Tex.Crim.App. No. 0176-10, 1/26/11); Reversed & remanded

Appellant was indicted for felony DWI. He filed a pretrial motion to suppress evidence obtained as a product of his arrest, which occurred in a parking lot. He claimed the police officer lacked reasonable suspicion initially to detain him, which rendered any product of his subsequent arrest for DWI inadmissible. The trial court concluded that the officer was presented with information by identified informants of an individual’s suspicious activity but no specific criminal act. The officer was able to identify appellant’s vehicle from the specific description provided by the informants at the location they reported, thereby corroborating the tip he had received. Over a dissent, a COA panel held that reasonable suspicion was lacking to believe appellant was about to commit a crime when police detained him. CCA granted the State’s PDR to address whether COA erred to require some indication of a specific criminal offense as a necessary component of reasonable suspicion.

Held: The totality of circumstances, including appellant’s strangely persistent, if admittedly non-criminal behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity. CCA reverses and remands to COA to address appellant’s remaining points of error.

Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 0298-09, 2/2/11); Reversed & remanded

Smith was convicted of capital murder and sentenced to life in prison for fatally shooting her husband and father-in-law. Smith’s attorneys asked the trial judge to instruct the jury that her ex-husband, Daniel Gardner, was an accomplice as a matter of law based on his testimony. The judge denied the request but instructed the jury to determine whether Gardner was an accomplice as a matter of fact. On appeal, Smith alleged that (1) the judge erred in denying her jury instruction, and (2) the non-accomplice testimony was insufficient to tend to connect her to the offense as required by Tex. Code Crim. Proc. art. 38.14. COA sustained both points of error. However, because COA found the evidence insufficient under Article 38.14, it did not address whether Smith was egregiously harmed by the exclusion of an accomplice-as-a-matter-of-law instruction and entered a judgment of acquittal

With respect to the jury charge issue, the State asked CCA to abandon the automatic application of the accomplice as a matter of law rule when a witness has been indicted for the same offense as the accused. Alternatively, the State contends that it should not have to affirmatively establish that the dismissal of the capital murder charge was not done in exchange for Gardner’s testimony. The State further contends that COA erred in concluding that Gardner was an accomplice as a matter of law because the record does not show that the capital murder charge was dismissed in exchange for Gardner’s testimony.

Held: The judge did not err in denying Smith’s jury instruction because the evidence did not conclusively establish that the capital murder charge against Gardner was dismissed in exchange for his testimony at Smith’s trial. Furthermore, COA erred in holding that the non-accomplice evidence was insufficient.

Shipp v. State, __S.W.3d__ (Tex.Crim.App. No. 1346-09, 2/2/11); COA reversed, trail court reinstated

Appellant was indicted for forgery under Texas Penal Code §32.21. The jury convicted him of a state jail felony under §32.21(d) upon determining that the counterfeited store receipt constituted a “commercial instrument.” COA found the evidence insufficient to support conviction for a state jail felony but held that there was no evidence that a store receipt constitutes a “commercial instrument.”

Held: Section 32.21(d) does not plainly provide that forgery of a store receipt constitutes a state jail felony—at least not in the same way it plainly provides that, e.g., a will, check, and contract do. As such, CCA does not necessarily disagree with COA’s characterization; however, it seems that the class it purports to identify—writings that “relate to legal rights or relationships”—is so broad as to be largely meaningless for applying the rule of ejusdem generis. Even after applying ejusdem generis, the legislative intent remains ambiguous. Having consulted extra-textual factors, CCA concludes that the particular “commercial instruments” delineated by § 32.21(d) are not so distinctly and narrowly drawn as to define a class to which a store receipt plainly does not belong.

Newman v. State, __S.W.3d__ (Tex.Crim.App. No. 00040-10, 2/9/11); COA reversed, trial court affirmed

Appellant filed an unsworn motion to dismiss his intoxication-assault case, claiming that his Sixth Amendment federal constitutional right to a speedy trial had been violated because of an eight-year delay since his indictment. The trial court signed an order denying appellant’s motion. This order indicates that the trial court denied the motion after a hearing. There is no reporter’s record of this hearing in the appellate record. On appellant’s direct appeal, COA declined to consider any factual assertions contained in appellant’s unsworn motion. After also noting the absence of a reporter’s record from any hearing in the trial court on this motion and after cautioning “practitioners regarding the importance of developing a record,” COA nevertheless decided that the “sparse” record that appellant presented was sufficient for it to consider the Barker factors even though this sparse record is silent on the second and fourth Barker factors. In overturning the trial court’s ruling denying appellant’s motion, COA also decided the record was sufficient to show that appellant’s speedy-trial right was violated.

Held: As a matter of state law, appellant failed to sustain his burden to present a sufficient record showing a violation of his right to a speedy trial. With appellant having had a hearing, having lost in the trial court on his speedy-trial claim, and then having presented no record of the hearing, appellant should also have lost on direct appeal.

Gaal v. State, __S.W.3d__ (Tex.Crim.App. No. 0516-10, 3/2/11); Reversed & remanded

Appellant appealed his felony DWI conviction, contending that the trial judge should have been recused for stating—before hearing any evidence—that the only plea bargain he would accept would be for the maximum sentence. COA agreed, holding that “[by] arbitrarily foreclosing the possibility of any plea bargain other than one for the maximum punishment,” the judge forecast his inability to consider the full range of punishment and thereby denied appellant due process. The State challenges COA’s interpretation of the facts and its application of the standard of review.

Held: Because the trial judge’s remark went only to plea bargaining and was supported by facts introduced or events occurring in the course of the proceedings, the recusal judge did not abuse his discretion in denying appellant’s motion to recuse. The appropriate standard of review for an appellate court in an order denying a motion to recuse is an abuse of discretion standard. An appellate court should not reverse a recusal judge whose ruling on the motion was within the zone of reasonable disagreement. An appellate court considers the totality of the evidence and information elicited at the recusal hearing to see if the record reveals sufficient evidence to support the recusal judge’s ruling that the trial judge was unbiased.

Woodall v. State, __S.W.3d__ (Tex.Crim.App. No. 1379-09, 3/2/11); Reversed & remanded

A jury foundappellant guilty of organized criminal activity, and the trial court sentenced her in accordance with the jury’s assessed punishment of 16 years’ confinement and a $10,000 fine. COA affirmed the conviction but reversed and remanded for a new trial on punishment. CCA granted review to determine whether appellant’s confrontation rights were violated by the representation of one witness’ grand jury testimony.

Held: Witness’ memory loss did not render her “absent” for Confrontation Clause purposes. Appellant is estopped from arguing that her confrontation rights were violated because, although the witness was physically absent at the time her grand jury testimony was read into evidence, appellant declined to have her attached and brought to court. COA is reversed, and the case is remanded for consideration of appellant’s point of error, which claims the testimony is hearsay.

State v. Castleberry, __S.W.3d__ (Tex.Crim.App. No. 0345-10, 3/2/11); COA reversed, trial court remanded

Appellant was charged with possession of cocaine. Before trial, appellant moved to suppress the cocaine because the State failed to demonstrate sufficient facts to create reasonable suspicion to detain appellant, as such the seizure a Fourth Amendment violation. CCA granted the State’s PDR to determine whether: (1) COA improperly required reasonable suspicion to justify a consensual encounter between the arresting officer and appellant; and (2) whether COA employed an improper presumption that appellant’s conduct in reaching for his waistband was innocent and improperly ignored key facts that give rise to reasonable suspicion.

Held: COA failed to separate appellant’s encounter with the officer into two distinct parts: (1) the officer’s initial approach of appellant, which was a consensual encounter; and (2) appellant’s act of reaching for his waistband, which provided the officer with reasonable suspicion to detain and frisk appellant. Therefore, the seized contraband is admissible.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231 (Tex.App.—Corpus Christi 8/27/10)

D had an ownership interest in the cell phone that contained incriminating videos, despite his mother-in-law owning the phone account, giving rise to D’s reasonable expectation of privacy. In addition, accessing the videos in the phone constituted a warrantless search for which PC was required. “[I]t is noteworthy that the incriminating videos were only visible when conducting an intrusive search of the cell phone, and there is no testimony that [person who found cell phone], acting in the shoes of law enforcement, had probable cause to conduct a warrantless search of the cell phone at the time the phone was found in the department store.”

Roane v. State, No. 05-09-00927-CR, 2010 WL 3399036 (Tex.App.—Dallas 8/31/10)

Sufficient evidence supported conviction for DWI, even though officer observed, upon his arrival at the scene, D standing outside the vehicle with the keys in his pocket. “[D] maintains because [officer] did not see [D] driving, the evidence is factually insufficient to support the judgment. It is uncontested that [officer] never saw [D] driving. However, when [officer] arrived at the scene, [D] and his companion were the only ones there. [And] . . . by [D’s] own admission, his companion was incapable of driving, and the videotape supports that the passenger was lying in the back seat. The circumstantial evidence supports that [D] drove there.”

Cardella v. State, No. 04-09-00319-CR, 2010 WL 3443221 (Tex.App.—San Antonio 9/1/10)

Area outside D’s residence became a “suspicious place” for purposes of arresting D without a warrant based on report that D shot a firearm at his tenant in front of the residence. “[D] argues that the area could not have been suspicious because [officer] testified that it was not. However, what [officer] specifically said during his testimony was that the area was not normally a place where criminal activity usually takes place. He did not say that he did not consider the area to be a suspicious place at the time he made the arrest.”

Contreras v. State, 324 S.W.3d 789 (Tex.App.—Eastland 2010)

Breath test results were admissible despite D’s argument that he was not provided with the software code for the breath test machine. Even if D requested the software code and even if the State failed to provide it, “[D] cannot show with a reasonable probability that, had he been given access to the computer and computer program, the outcome of the trial would have been different.”

State v. Weaver, No. 09-10-00116-CR, 2010 WL 3518743 (Tex.App.—Beaumont 9/8/10)

Officers who received consent to search the premises of a welding shop for a wanted man were not authorized to search a van on the premises for which consent was specifically denied, even though a drug dog alerted on the van, because, by that time, officers had concluded their search for the man. From the dissent: “Although the owner refused consent to a search of the van, the canine sniff of the exterior of the van, made while officers were questioning [D], was not a ‘search’ for Fourth Amendment purposes. . . . [O]fficers were not required to see the vehicle ‘be­ing operated’ before the canine sniff of the exterior of the van. After the dog alerted to the drugs, a search of the interior of the van was justified. . . .”

Smarr v. State, No. 06-10-00002-CR, 2010 WL 3518746 (Tex.App.—Texarkana 9/10/10)

Evidence of D’s ingestion of medication for which D had properly obtained prescriptions supported D’s conviction for DWI. “The fact that a defendant was entitled to use prescribed medication is not a defense to DWI.”

Woolverton v. State, 324 S.W.3d 794 (Tex.App.—Tex­arkana 2010)

Consent of co-tenant deemed a sufficient basis to search entire residence, even without obtaining the consent of the other tenant, who police did not discover was present in the residence until after first tenant’s consent had already been given and they had entered residence. “[T]he question of whether [second co-tenant] refused to consent to the search is disputed in this case. . . . [Officer] further testified that when [second co-tenant] was asked to vacate the residence, she complied without ever communicating to [officer] the fact that she lived in the resi­dence. While [officer] did learn that [second co-tenant] resided at the residence after he arrived on the premises, he did not proactively seek her consent because [first co-tenant] had previously provided written consent to search.”

State v. Klein, No. 10-08-00344-CR, 2010 WL 3611523 (Tex.App.—Waco 9/15/10)

D’s consent to a breath test was voluntary, despite officer’s failure to comply with the statutory requirement to orally recite warnings before obtaining consent. “The evidence establishes that [D] was provided the written warnings. [D] did not contend at the suppression hearing, nor does she contend on appeal, that she did not understand the written warnings. Furthermore, be­fore [officer] gave any warnings to [D], [D] admitted that she had been drinking. For these reasons, [D] has shown no causal connection between her consent to the breath test and [officer’s] failure to orally inform her of paragraph (4) of section 724.015.”

Trigg v. State, No. 05-09-01531-CR, 2010 WL 3787820 (Tex.App.—Dallas 9/30/10)

Officer’s illegal restraint of D while officer performed a warrants check was cured by officer’s discovery of an outstanding warrant. Discovery of warrant broke the connection between the primary taint and the subsequently discovered evidence; thus, cocaine found in D’s pocket upon arrest was admissible.

Weems v. State, 328 S.W.3d 172 (Tex.App.—Eastland 2010)

Merely being found intoxicated near the scene of a traffic accident (here, four-tenths of a mile away) provided some evidence that D caused the accident; the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. Although D did not own the vehicle, “[D’s mother] testified that [D] typically drove [the vehicle], and that he had it on the night of the accident. . . . The evidence showed that the accident occurred in a ‘very rural’ area. [D] was found about four-tenths of a mile from the accident scene. The police officers and EMS personnel did not see anyone else at the accident scene or in the surrounding area. The evidence was legally and factually sufficient to establish that [D] was . . . operating a motor vehicle when the accident occurred.” Furthermore, prosecutor’s statement during closing to the effect that the only person who can tell the jury the truth was the person who would not cooperate did not constitute an impermissible remark on D’s failure to testify. “Viewed in context, the complained-of statement by the prosecutor relates to [D’s] lack of cooperation with the police rather than his failure to testify.”

Pace v. State, 318 S.W.3d 526 (Tex.App.—Beaumont 2010)

Officer, who received a tip that someone was smoking mari­juana in a certain residence in the presence of a child, did not have PC to enter residence, even though officer observed D retreat into residence. Note that officer interacted with D im­me­diately before D retreated into residence. “[D’s] retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence.” Furthermore, D’s mother’s authority to grant officer consent to enter residence (over D’s ob­jection) did not allow mother to consent to officer’s entry into D’s bedroom. D was an adult, his bedroom had a lock on it, and D’s mother normally knocked before entering the room. Nevertheless, the officer was authorized to conduct a cursory check of D’s bedroom for officer safety, even though D was present and objected to officer’s search. Officer was lawfully in the house and D’s actions in attempting to slam the door on officer and then running away towards his bedroom raised RS that D might be retrieving a weapon.

Bollig v. State, No. 05-08-01038-CR, 2010 WL 3835771 (Tex.App.—Dallas 10/4/10)

D argued that the search of his residence and the seizure of a CD containing images of child pornography was unconstitutional because the search was conducted after the police obtained his wife’s consent, he was present when she consented, and he did not consent. At the suppression hearing, D’s wife said: “[A police officer] talked to me and asked me to give him that CD,” “[I] was asked, do you have the CD in your possession,” and “I was asked for [the CD], and I gave it to them.” Yet, a detective testified that D’s wife was “adamant” that police take the CD. COA concludes that no search occurred because officer merely asked D’s wife to give him the CD and she consensually did so.

State v. Ruelas, 327 S.W.3d 321 (Tex.App.—El Paso 2010)

The State contended that D testified to making an improper left turn by directly entering the right lane after the turn. The trial court disregarded D’s admission by concluding that the evidence should be suppressed because that was not the violation the officer testified to. The State argued that it is irrelevant that the officer did not testify specifically that D entered the right lane because an officer’s stated reason for the stop is not con­trolling if there is an objectively reasonable basis for the stop as shown by the evidence. COA concludes that because law enforcement action can only be supported by facts an officer was actually aware of at the time of that action, and the officer did not testify to D’s act of turning directly into the right lane, the officer lacked reasonable suspicion to support the stop.

Smith v. State, No. 01-09-00263-CR, 2010 WL 3928485 (Tex.App.—Houston [1st Dist] 10/7/10)

D’s post-arrest interview was admissible even though he did not receive Miranda warnings because an employee of the county pretrial services agency conducted the interview, which constituted “administrative questioning.” “[D] argues that the interviewer’s questions adduced the primary basis for his conviction—information linking him to the address at which the car involved in the aggravated robbery was found and establishing his relationship with the car’s owner—and, therefore, constituted custodial interrogation requiring Miranda warnings. Under both the federal and state constitutions, questioning attendant to an administrative ‘booking’ procedure does not generally require Miranda warnings.”

Carter v. State, No. 01-09-00349-CR, 2010 WL 3928492 (Tex.App.—Houston [1st Dist] 10/7/10)

Motel room search proper, even though D did not consent because D had no reasonable expectation of privacy as D failed to show that he was an overnight guest in the room and D’s girlfriend consented and she was the only person in whose name the room was rented. “The officers found female clothing and personal articles in the dresser, but no male clothing or personal items anywhere. . . . [D] contends that his expectation of privacy in [girlfriend’s] hotel room was objectively reasonable because he was legitimately in the room, he believed that he had to power to exclude others from the room as demonstrated by his attempt to refuse entrance to the police, he tried to ensure his privacy by closing the curtains and blinds, the room was not open to the public, and the ‘expectation of privacy of a boyfriend and girlfriend behind closed doors’ is consistent with historical notions of privacy. . . . According to [officer], the gap in the curtains was wide enough that one could walk by the window and clearly see in ‘without having to actually look inside.’”

Pham v. State, 324 S.W.3d 869 (Tex.App.—Houston [14th Dist] 2010)

D had no reasonable expectation of privacy as to contents of plastic shopping bag, which was seized by police from co-defendant’s vehicle after D gave bag to co-defendant. “[D],
[h]aving assumed the risk that [co-defendant] would betray the secrecy concerning the bag’s contents, relinquished his expectation of privacy. . . . More importantly, the evidence unequivocally reflects that [D] had no intention of repossessing the bag: by giving the bag to [co-defendant]. . . .”

Ferguson v. State, No. 14-09-00597-CR, 2010 WL 4013737 (Tex.App.—Houston [14th Dist] 10/14/10)

Gun retrieved from D’s car after it was impounded by police was pursuant to D’s consent, despite D’s argument that his consent had been coerced since the car had already been impounded and he was, therefore, left with no choice but to consent. “The written consent to search describes [D’s] vehicle as being located at the police impound lot; however, there is no evidence [D] knew the vehicle had been taken there until he reviewed and signed the written consent form, which was after he had already agreed to give a statement to [officer] and after he had already orally consented to the search of his vehicle.”

Trial By Numbers – Uncertainty in the Quest for Truth and Justice

All results for every forensic science method should indicate the
uncertainty in the measurements that are made, and studies must be
conducted that enable the estimation of those values.1

On August 5th, 2010, prosecution expert Rod Gullberg was handed a breath alcohol test ticket with the values 0.081 and 0.080 printed on it. Assuming proper quality assurance procedures and testing protocols were followed, all parties agreed that these were the results of an accurate and reliable test. Mr. Gullberg was then asked, given these results and the fact that this was an accurate and reliable test, could he state beyond a reasonable doubt that this individual’s breath alcohol concentration (BAC) exceeded a 0.080 (the per se limit in Washington state). Mr. Gullberg responded, “I would have to say yes based on these results here.”

Similar evidence and testimony, concerning a range of forensic measurements, is introduced in courtrooms around the country every day. And based on such evidence and testimony, citizens accused of all manner of crimes are found guilty. In the context of a prosecution for driving under the influence of alcohol, where guilt may be based on a number alone and the only way to know what an individual’s breath or blood alcohol concentration is comes from a machine, many simply plead guilty in the face of such evidence. But what if the results from an accurate and reliable test don’t actually mean what most of us presume?

Despite the fact that the test under consideration was agreed to be accurate and reliable, within 10 minutes of the testimony above, Mr. Gullberg reversed himself, stating that he could not conclude based on the test results that this individual’s BAC was in excess of a 0.080. In fact, he conceded that despite the fact that the test was accurate and reliable, there was actually a 44% likelihood that this individual’s BAC was below a 0.080! Far more than a reasonable doubt, these “accurate and reliable” test results barely established the conclusion as more likely than not! Absent those critical 10 minutes, an innocent citizen could have been convicted based on evidence that meant something very different from what the State presented it to establish.

So what happened in those 10 minutes to change Mr. Gullberg’s opinion? Did Mr. Gullberg lie? Were the wrong values printed on the breath test ticket? Was there something wrong with the test?

Measurement Uncertainty

To many, the result of a measurement represents a singular, well-defined property of a thing being measured (the “measurand”). In such a world, a breath test result of 0.080 would be interpreted as representing an individual’s true and specific breath alcohol concentration.2 (See Figure 1.)

Unfortunately, reality is not quite so simple. For even the most carefully performed measurement, the value of a thing being measured can never be known exactly; all that can ever be given is an estimated value.3 In fact:

. . . for a given measurand and a given result of measurement of it, there is not one value but an infinite number of values dispersed about the result that are consistent with all of the observations and data and one’s knowledge of the physical world, and that with varying degrees of credibility can be attributed to the measurand.4

Thus, in the real world, a breath test result of 0.080 is more appropriately represented as a packet of values, any of which could actually be attributed to an individual’s BAC. (See Figure 2.)

If this illustration reminds you of the familiar Bell-Curve, it is no coincidence. The information obtained from a measurement, which we call its result, is actually a probability distribution that characterizes our knowledge of the measured quantity.5 That we can never know the singular true value of the thing being measured is due to many factors, including “measurement error” and imperfect information concerning the measuring system and thing to be measured.

Measurement uncertainty “reflects the lack of exact knowledge of the value of the measurand.”6 It provides a quantitative statement characterizing the dispersion of values that can actually and “reasonably be attributed to the measurand.”7 It is well recognized that “the result of a measurement is only an approximation or estimate of the value of the specific quantity sub­ject to measurement and thus the result is complete only when accompanied by a quantitative statement of its uncertainty.”8 For example, “[n]umerical data reported in a scientific paper include not just a single value (point estimate) but also a range of plausible values (e.g., a confidence interval, or interval of uncertainty).”9

The most common way of expressing measurement uncertainty is as a coverage interval. It consists of range of values that can be attributed to the measurand as well as a level of confidence, probability, that the “true” value is contained within that range. Assuming a measured value of y and an expanded uncertainty U determined to have a 95 percent likelihood of containing the true value of a measurand, a complete measurement result X and the accompanying coverage interval would be expressed as follows:

Measurement Result = Value ± Uncertainty

X = y ± U (95%)

Coverage Interval

y UX y + U

Returning to the example of a breath test result of 0.080, then, and assuming an uncertainty of ±0.010 with a 95 percent level of confidence, the right and wrong way to conceive of and report the result of the BAC measurement is shown in Figure 3.

Thus, despite the fact that the value reported is a 0.080, all we can really say is that the values that can actually be attributed to the BAC in question range from .070 to .090 with a 95 per­cent level of confidence. This applies to all forensic measurements. Whether it’s measuring the level of blood alcohol in an individual, the heroin content of a sample, or any other quantity subject to measurement, the quantities of interest can be determined “only within a confidence interval of possible values.”10

Although there are different approaches for determining uncertainty,11 the same general principles and tools utilized are applicable to all measurements.12 First, all sources of uncertainty which may affect the use to which the result is put must be taken into account.13 A common way to document sources of measurement uncertainty, as well as their relationship to each other and the final result, is a cause and effect diagram. (See Figure 4.)

Once the relevant sources of uncertainty have been identified, the amount of uncertainty contributed by each must be determined.14 These values are then added together to yield the combined uncertainty, μc.15 Multiplying the combined uncertainty by an appropriate coverage factor, k, generates the expanded uncertainty, U = kμc, discussed above.16 This information is commonly documented in an uncertainty budget.17 (See Figure 5.)

The coverage factor, shown in Figure 6, is important because it determines how large the coverage interval will be and the level of confidence associated with it. The actual level of confidence associated with a given a coverage factor depends upon the probability distribution associated with our measurement. For most real world situations, the underlying distribution will be approximately normal18 so that k = 2 yields a level of confidence of approximately 95 percent and k = 2.576 gives a level of confidence of approximately 99 percent.

Coverage Interval19

y kμc X y + kμc

One important thing to note is that the uncertainty associated with a measurement is likely to differ when the measurement comes from two different sources. Accordingly, even where two measurements from distinct entities report identical values, the results may have very different meanings. For example, assume that two individuals submit to a breath test but on different breath test machines, and that each test yields a value of 0.095.20 Given that the uncertainties associated with each test are likely different, the values reported may give a clear indication that one of these individual’s BAC is over a 0.08 while revealing that the values that could actually and reasonably be attributed to the other’s BAC include those under the per se threshold. (See Figure 7.)

Here, identical test values but with different uncertainties yield different results21 and different interpretations. Depending on which circumstance applies, a jury may come to a very different conclusion. Clearly, “considering or not the uncertainty of a critical result can make the difference between acquittal and a guilty sentence.”22 Again, the same thing applies to all measurements, not just those pertaining to forensic alcohol analysis.

Knowledge of the uncertainty associated with measurement results is essential to the interpretation of the results. Without quantitative assessments of uncertainty, it is impossible to decide whether observed differences between results reflect more than experimental variability, whether test items comply with specifications, or whether laws based on limits have been broken. Without information on uncertainty, there is a risk of misinterpretation of results. Incorrect decisions taken on such a basis may result in unnecessary expenditure in industry, incorrect prosecution in law, or adverse health or social consequences.23

Measurement uncertainty is “fundamental to the interpretation and reporting of results.”24 Absent a statement of uncertainty, a result “lacks worth [and] credibility”25 and may be considered “meaningless.”26 In particular, “[a]ll results for every forensic science method should indicate the uncertainty in the measurements that are made.”27 When the result of a forensic measurement is reported simply as “‘a number,’ it does not reflect the accuracy of the measurement and cannot be properly interpreted.”28 “Estimating and reporting measurement uncertainty with the number completes the picture and allows us to properly use the result to make reliable and defensible decisions.”29

Some Answers

So what happened in those critical 10 minutes to change Mr. Gullberg’s opinion? Well, when he was initially presented with the “results” of the breath test in question, they were incomplete as they did not include any information concerning their uncertainty. (See Figure 8.) As we have seen, the picture created by such incomplete results is rather simplistic. (See Figure 9.)

Without more information, the breath test ticket clearly seems to communicate that the BAC of the individual in question exceeded the legal limit.

It was only after Mr. Gullberg had declared that he could conclude that this individual’s BAC exceeded a 0.080 beyond a reasonable doubt that he was provided with the test’s uncertainty. To a 99 percent level of confidence, the coverage interval was defined as 0.0731 ↔ 0.0877. That means that the values which could actually and reasonably be attributed to the BAC in question ranged from 0.0731 to 0.0877 with a 99 percent level of confidence. This creates a very different picture indeed.

In fact, by visual inspection alone we can determine that it is almost as likely that this individual’s actual BAC is under the legal limit as it is over. (See Figures 10 and 11.)

And given the coverage interval, Mr. Gullberg was easily able to confirm that the likelihood that this individual’s true BAC was under a 0.080 was 44 percent.30 To understand how this could be determined from the coverage interval, remember that our test result, and hence the coverage interval itself, is characterized by a Gaussian probability distribution, i.e., the Bell Curve. (See Figure 12.)

If the total area under the Bell Curve is defined so as to equal 1, the probability that the result lies within any range of values is simply given by the area under the curve contained within that range. Hence, the probability that this particular BAC was actually less than the legal limit is given by the area under the curve within the range from 0.0 to 0.079. (See Figure 13.)

At this point it should be recognized that the inclusion of uncertainty is not a “get out of jail free” card for those charged with DUI or any other crime. Just as the uncertainty may demonstrate a high likelihood that an individual with test values above the legal limit is actually below that limit, it can go the other way as well. It may show that there is a high likelihood that an individual with test values below the limit is actually above that limit. In general, the uncertainty favors neither party. It simply facilitates the discovery of truth by enabling proper interpretation of the evidence. Moreover, except in those cases where the evidence of guilt consists solely of a measurement result, measurement uncertainty does not dictate a particular outcome. Although necessary for the proper interpretation of a measurement result, it is simply another piece of the evidence for the jury to consider and weigh with the rest of the evidence in arriving at a verdict.

Rod Gullberg had not lied. The wrong values were not printed on the breath test ticket. There was nothing wrong with the test. Gullberg simply had not been provided sufficient information upon which to base a reliable and defensible opinion. State Toxicologist Fiona Couper and Quality Assurance Manager Jason Sklerov faced similar lines of questions. Predictably, they were also unable to properly interpret the State’s breath test results absent information concerning each test’s measurement uncertainty. Each of the state of Washington’s top three experts had been asked to interpret the results of breath tests obtained by their own program. And each was unable to do so absent information concerning each test’s uncertainty.

Uncertainty in the Quest for Truth and Justice

The aforementioned testimony was obtained during a week-long evidentiary hearing before a panel of three King County District Court judges.31 The primary subject of the hearings was whether the State could offer breath test results as evidence in prosecutions for DUI without providing both the defendant and jury the uncertainty associated with those results.

Six months earlier, a similar question was raised before Commissioner Paul Moon of the Snohomish County District Court with respect to the admissibility of a blood test result absent its uncertainty. The commissioner found the blood test inadmissible under Washington Rules of Evidence 702 and 403. With respect to the first evidentiary provision, the Court found the following:

If an expert testifies that a particular blood alcohol content measurement is value A, without stating a confidence level, it is this court’s opinion that the evidence is being represented as an exact value to the trier of fact . . . [and] that presenting to the trier of fact the result of a blood test as an exact numerical value without stating a confidence level, is not generally acceptable in the scientific community and misrepresents the facts to the trier of fact. . . . [T]his court holds that the result of the blood test in this case is not admissible under ER 702 in the absence of a scientifically determined confidence level because it misrepresents the facts and therefore cannot be helpful to the trier of fact.32

Addressing Evidentiary Rule 403, the Court explained:

It has been this court’s experience since 1983 that juries it has presided over place heavy emphasis on the numerical value of blood alcohol tests. To allow the test value into evidence without stating a confidence level violates ER 403. The probative value of this evidence is substantially outweighed by its prejudicial value. Therefore this court holds that the result of the blood test in this case is not admissible under ER 403 in the absence of a scientifically determined confidence level.33

The prosecution chose not to present any witnesses at this earlier proceeding.34 With this as prologue, however, the prosecution presented testimony from the State’s three top breath test experts at the King County hearings.35 These experts proved of little benefit to the prosecution.

King County prosecutors36 were forced to acknowledge that their own experts were unable to properly interpret the breath test results presented, absent information concerning each test’s uncertainty. They also acknowledged that it was unlikely that the typical defendant or juror would fare any better and may be misled by such results as easily as the prosecution’s experts were. Nonetheless, the State argued that it had no duty to provide the uncertainty of breath test results to either the defendant or jury, and that the Court had no power to require it to do so. It maintained that even though it knew that its evidence was incomplete and subject to being misleading and misinterpreted when unaccompanied by measurement uncertainty, the justice system was intended to permit whatever results such evidence might engender—even if it meant that innocent citizens would be deprived of their liberty and guilty individuals set free as a result.

Washington prosecutors are not alone in this mindset. Although a few forensic labs properly account for uncertainty in the results they report, “most [forensic] reports do not discuss measurement uncertainties or confidence limits.”37 Yet it is exactly this type of incomplete and often misleading evidence that is offered by prosecutors around the country every day. What’s more alarming is that courts around the country permit this very evidence to form the basis for depriving citizens of their liberty on a daily basis as well. Such practices not only threaten individual liberty, but also strike at the integrity of the justice system itself by hindering its ultimate mission of determining the truth. As the King County Court noted:

A prosecutor is a participant in a system of criminal justice which is, by design, adversarial. Yet, a good prosecutor will never let the desire to “win” overcome his or her sense of justice. A trial court will follow precedent when it rules on matters before the court, but precedent will never be allowed to overcome the determination of a good judge to do justice in each and every case. What was trustworthy and reliable yesterday may not be today. As concepts of justice advance through each generation of police, criminal justice practitioners, attorneys, and judges, we aim to provide better justice than was provided by those before us. As concepts of science change, we also need to be ready to move forward with those new, better practices. Nor should the court allow an instrument or a machine to determine an element of a criminal offense—unless there are appropriate safeguards to ensure that the evidence provided by the machine is what it purports to be. It bears repeating that—these safeguards are foundational to our criminal justice system.38

In the end, what this issue boils down to is plain and simple truth. The defense in this hearing was not asking for something that would derail prosecutions or preclude convictions. It was simply asking the court to require the state to report the results of its forensic measurements in a complete and accurate manner so that both defendants and jurors could properly interpret that evidence and would not be misled by it. The court saw the issue the same way writing:

When a witness is sworn in, he or she most often swears to “tell the truth, the whole truth, and nothing but the truth.” In other words, a witness may make a statement that is true, as far as it goes. Yet there is often more information known to the witness, which if provided, would tend to change the impact of the information already provided. Such is the case when the State presents a breath-alcohol reading without revealing the whole truth about it. That whole truth, of course, is that the reading is only a “best estimate” of a defendant’s breath-alcohol content. The true measurement is always the measurement coupled with its uncertainty.39

The Court subsequently recognized that “a breath-alcohol measurement without a confidence interval is inherently misleading.”40

Neither the Lab nor the prosecution provided the court with any reason why uncertainty either was not or could not be provided with the result of every test.41 In Washington, the uncertainty of every breath test that will be conducted on an instrument over the course of a year can be determined in five minutes at the time of the instrument’s annual calibration using an excel spreadsheet. Thus, whether it’s one test, a hundred tests, a thousand, or tens of thousands, the uncertainty of all these tests together can be determined in five minutes, once a year, and then printed up in a table to be supplied to every defendant and jury along with the test results. Given the ease with which the uncertainty can be determined and supplied, one is left wondering why the state wouldn’t want to supply this information.

The Panel concluded that for breath test results to be admissible in prosecutions for DUI, both the defendant and jury must be provided with the uncertainty associated with those results. First, under principles of Due Process and the rules governing discovery, it stated:

[W]e now place the state on notice that every discovery packet supplied to defendants must contain the confidence interval for any breath-alcohol measurement the state intends to offer into evidence in that case. Should the state fail to comply with this discovery order, then upon objection, such breath-alcohol measurement will not be admitted at trial.42

Then, under Evidentiary Rule 702, the Court found:

Once a person is able to see a confidence interval along with a breath-alcohol measurement, it becomes clear that all breath-alcohol tests (without a confidence interval) are only presumptive tests. The presumption, of course, is that a breath-alcohol reading is the mean of two breath samples. This answer, however, is obviously incomplete. (Put another way, a breath-alcohol measurement without an uncertainty measurement does not tell the “whole truth.” RCW 5.28.020.) As discussed above, a breath test reading is only a “best estimate” of an individual’s breath-alcohol level. The determination of a confidence interval completes the evidence. Therefore, upon objection, a breath-alcohol measurement will not be admitted absent its uncertainty level, presented as a confidence interval.43

Thomas Bohan, immediate past president of the American Academy of Forensic Sciences, hailed the King County Court opinion as a landmark decision, engendering a huge advance toward rationality in our justice system and a victory for both forensic science and the pursuit of truth.

Conclusion

“The ultimate mission of the system upon which we rely to protect the liberty of the accused as well as the welfare of society is to ascertain the factual truth.”44 “Complete, competent, and impartial forensic-science investigations can be that ‘touchstone of truth’ in a judicial process that works to see that the guilty are punished and the innocent are exonerated.”45 Given the potential consequences to individuals and society alike, though, reliance upon forensic science “is not a matter to take lightly, nor to trust to luck.”46 Accordingly, “[i]n this age of science we must build legal foundations that are sound in science as well as in law.”47 This can be achieved “only by requiring scientific evidence to conform to the standards and criteria to which scientists themselves adhere.”48 If we are to follow this path, then we must understand that science can never tell us what is and is not true: “It is scientific only to say what is more likely and what is less likely.”49

Notes

1. National Academy of Sciences (NAS hereinafter), Strengthening Forensic Science in the United States: A Path Forward, 184 (2009).

2. All graphic illustrations were creates utilizing ProStat Software.

3. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), §3.1.2, Appendix D.4 (2008); Kirkup, An Introduction to Uncertainty in Measurement 33 (Cambridge University Press 2006); NIST, Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 § 2.1 (1994); Kristiansen, An Uncertainty Budget for the Measurement of Ethanol in Blood by Headspace Gas Chromatography, 28(6) J. Anal. Tox. 456 (2004).

4. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 5.2 (2008); BIPM, International Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), § 0.1 (2008); Ehrlich, Evolution of philosophy and description of measurement 12 Accred. Qual. Assur. 201, 208 (2007).

5. Estler, Measurement as Inference: Fundamental Ideas 48(2) Annals CIRP 611, 623 (1999).

6. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 3.3.1 (2008).

7. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 2.2.3 (2008); BIPM, International Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), §2.26 (2008); EURACHEM, Quantifying Uncertainty in Analytical Measurement CG-4, § 2.1.1 (2000); Hofmann, Common Sources of Error in Measurement, Handbook Of Measuring System Design V.1, p. 289, 293 (Sydenham & Thorn ed., 2005).

8. NIST, Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 § 2.1 (1994); JCGM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 3.1.2 (2008).

9. NAS, Strengthening Forensic Science in the United States: A Path Forward, 116 (2009).

10. NAS, Strengthening Forensic Science in the United States: A Path Forward, 116–117 (2009).

11. These include the top-down, bottom-up, and total-error approaches. EURACHEM, Measurement uncertainty arising from sampling: A guide to methods and approaches §§ 6.1, 9.1.1, 10.1.1, 12.1 (2007); Gullberg, Statistical Applications in Forensic Toxicology, Medical-Legal Aspects of Alcohol, p. 490 (James Garriott ed., 5th ed. 2009).

12. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM) (2008); EURACHEM, Measurement uncertainty arising from sampling: A guide to methods and ap­proaches §§ 6.1, 9.1.1, 10.1.1, 12.1 (2007); ISO, General requirements for the competence of testing and calibration laboratories, ISO 17025 § 5.4.6.3 Note 3 (2005); NIST Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 §§ 1.2, 1.3 (1994); EURACHEM, Quantifying Uncertainty in Analytical Measurement CG-4, § 1.1 (2000); A2LA, Guide for Estimation of Measurement Uncertainty in Testing, § 1.0 (2002); UKAS, The Expression of Uncertainty and Confidence in Measurement, M3003 (2007); ILAC Introducing the Concept of Uncertainty of Measurement in Testing in Association with the Application of the Standard ISO/IEC 17025, ILAC G-17 §5.2 (2002); NIST, National Voluntary Laboratory Accreditation Program: Procedures and General Requirements, NIST Handbook 150 § 5.4.6.3 (2006); NATA, Assessment of Uncertainties of Measurement for Calibration and Testing Laboratories 8 (2nd ed. 2002).

13. ISO, General requirements for the competence of testing and calibration laboratories, ISO 17025 § 5.4.6.3 (2005).

14. The Metrology Handbook 306 (Bucher Ed., 2004).

15. For reasons beyond the scope of this article, uncertainties don’t add like normal numbers. Instead, they are combined in the same manner standard deviations are combined: Each value is squared, the squares are added, and then the square root of the sum is determined. The result is the measurement’s combined uncertainty:

16. Expanded uncertainty:

U = kμc

With this information, a complete result and coverage interval can be expressed as:

Result:

X = y ± U (95%) = y ± kμc (95%)

Coverage interval:

yU X y + U ykμc X y + kμc

17. The Metrology Handbook 311–315 (Jay Bucher ed., ASQ Quality Press 2004).

18. This is due to the Central Limit Theorem. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), App. G.2 (2008); Kirkup, An Introduction to Uncertainty in Measurement 143–150 (Cambridge University Press 2006); Rabinovich, Measurement Errors and Uncertainties: Theory and Practice 68 (Springer 2005); Estler, Measurement as Inference: Fundamental Ideas 48(2) Annals CIRP 611, 623 (1999); Halaj, General Charicterization of Systematic and Stochastic Errors, Handbook of Measuring System Design V.1, p. 295, 297–8 (Sydenham & Thorn ed., 2005).

19. See endnote 15.

20. Example adapted from: Gullberg, Estimating the Measurement Uncertainty in Forensic Breath Alcohol Analysis, 11 Accred. Qual. Assur. 562, 562 (2006); Gullberg, Common Legal Challenges and Responses in Forensic Breath Alcohol determination, 16(2) Forens. Sci. Rev., 92, 93 (2004).

21. Remember, a test result consists of both the test value and its associated uncertainty.

22. Bich, Interdependence between measurement uncertainty and metrological traceability 14 Accred. Qual. Assur. 581, 581 (2009).

23. ISO, Guidance for the use of repeatability, reproducibility and trueness estimates in measurement uncertainty estimation, ISO/TS 21748 Draft Revision, v (2009); ISO, Guidance for the use of repeatability, reproducibility and trueness estimates in measurement uncertainty estimation, ISO/TS 21748, v (2004).

24. SWGDRUG, Recommendations, Part IV-C § 1.1 (5th Ed.—Jan. 2010).

25. NATA, Assessment of Uncertainties of Measurement for calibration & testing laboratories 8 (2002).

26. A2LA, Guide for Estimation of Measurement Uncertainty in Testing, § 1.0 (2002).

27. NAS, Strengthening Forensic Science in the United States: A Path Forward, 184 (2009).

28. Bono, ISO/IEC 17025:2005: Section 5.4.6: Estimation of Uncertainty—Is Anyone Certain What This Means? p.7, Presentation at the 61st Annual Meeting of the American Academy of Forensic Sciences (2/17/2009)(emphasis added).

29. Bono, ISO/IEC 17025:2005: Section 5.4.6: Estimation of Uncertainty—Is Anyone Certain What This Means? p.7, Presentation at the 61st Annual Meeting of the American Academy of Forensic Sciences (2/17/2009).

30. The determination is based upon the assumption that the underlying distribution is Gaussian (i.e., normal, a bell curve).

The use of this particular example should not be taken as an indication that the uncertainty can only impact the outcome at values very near a critical limit. The evidence showed that when uncertainty was included, results with mean values of 0.030 greater than a particular limit could actually be shown to include values below the limit in question. Moreover, these values were shown to be conservative so that even results in excess of these may be found to include values below a particular limit contained within their associated coverage interval.

31. King County District Court judges David Steiner, Darrell Phillipson, and Mark Chow.

32. State v. Weimer, No. 7036A-09D at 3 (Snohomish Co. Dist. Ct. March 23, 2010). Decision available at: <http://www.waduicenter.com/wp-content/uploads/2010/04/Snohomish-County-District-Court-Cascade-Decision-Moon-032710.pdf>.

33. State v. Weimer, No. 7036A-09D at 4 (Snohomish Co. Dist. Ct. March 23, 2010).

34. The only testimony was that of University of Washington Metrologist Dr. Ashley Emery.

35. The State’s experts were the former head of the Washington State Breath Test Section Rod Gullberg, State Toxicologist Fiona Couper, and State Toxicology Lab Quality Assurance Manager Jason Sklerov.

36. The King County Prosecutor’s Office is headed by prosecutor Dan Satterberg.

37. NAS, Strengthening Forensic Science in the United States: A Path Forward, 186 (2009).

38. State v. Fausto, No. C076949 at 22–23 (King Co. Dist. Ct. Sept. 21, 2010). Decision available at: <http://www.waduicenter.com/wp-content/uploads/2010/09/Ahmach-II-3-Judge-Panel-Ruling-012210
.pdf>.

39. State v. Fausto, No. C076949 at 23 (King Co. Dist. Ct. Sept. 21, 2010).

40. State v. Fausto, No. C076949 at 28 (King Co. Dist. Ct. Sept. 21, 2010).

41. State v. Fausto, No. C076949 at 17 (King Co. Dist. Ct. Sept. 21, 2010).

42. State v. Fausto, No. C076949 at 26 (King Co. Dist. Ct. Sept. 21, 2010).

43. State v. Fausto, No. C076949 at 28–29 (King Co. Dist. Ct. Sept. 21, 2010).

44. Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1114 (9th Cir. 2001).

45. Peterson, The Evolution of Forensic Science: Progress Amid the Pitfalls 36, Stetson Law Rev. 621, 660 (2007).

46. P. Kirk, The Ontogeny of Criminalistics, 54 J. Crim. Law & Police Science 235, 238 (1963).

47. Justice Stephen Breyer in Reference Manual on Scientific Evidence 4–8 (2nd ed. 2000).

48. Black, Evolving Legal Standards for the Admissibility of Scientific Evidence, 239 Science 1508, 1512 (1988).

49. Feynman, The Character of Physical Law 165–166 (MIT Press 1965).

Copyright © Ted Vosk. This article first appeared in the November 2010 issue of The Champion.

Ted Vosk is a criminal defense attorney and legal/forensic con­sultant. A Goldwater Scholar, he graduated with honors in Theoretical Physics and Mathematics from Eastern Michigan University. Thereafter, he studied in the PhD program for physics at Cornell University before earning a JD from Harvard Law School. A member of the American Academy of Forensic Sciences and Mensa, he has written, broadcast, presented, and taught around the country on topics ranging from string theory to the doctrine of constitutional separation of powers. He has been part of the most significant DUI cases in Washington state over the past decade and led the fight against substandard science in the State’s Toxicology Lab, which resulted in suppression of evidence statewide and significant scientific reforms in the lab. For this work, he received the President’s Award from the Washington Association of Criminal Defense Lawyers and the Certificate of Distinction from the Washington Foundation for Criminal Justice. He lives in Washington with his wife, Kris.

April 2011 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
19 | Texas Criminal Trial College Teachers and Students
22 | Slate of Candidates and Proposed Changes to the TCDLA Bylaws
24 | Trial By Numbers: Uncertainty in the Quest for Truth and Justice – By Ted Vosk
43 | Application for Writ of Habeas Corpus – By Sarah Roland

Columns
8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Federal Corner
18 | Said & Done

Departments
5 | Legislative Update
6 | Staff Directory
7 | CLE Seminars and Events
34 | Significant Decisions Report

President’s Message: Our Cheese Is on the Move – By William Harris

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Some of you may be familiar with a small book that was very popular in corporate circles ten years or so ago called Who Moved My Cheese, written by Spencer Johnson. The thesis of the book is that change is inevitable and constant. As soon as we get things the way we are comfortable with them, they change. We must therefore spend our lifetimes making changes to accommodate the changes in our lives and circumstances.

TCDLA’s cheese, and indeed the cheese of the defense bar and criminal justice system, is moving. For several years we have been one of the beneficiaries of a large grant of state funds that we have used to educate criminal defense lawyers. We have been very conscientious about getting the most out of these dollars and trying to educate as many lawyers as possible. Several aspects of that grant are in the process of changing.

First, it looks likely that the funding for the grant, which has previously been held separate from the general fund, is going to be moved into the general fund. That means the money (generated by court fees) will be available for uses other than educating the participants in the criminal justice system. Second, the Court of Criminal Appeals, which administers the grant, has changed some of the rules governing how the funds are allowed to be used. Third, these are hard economic times.

TCDLA is effected by these times just as everyone is. We are endeavoring to find ways to make our budget leaner and more efficient without sacrificing our goals of promoting justice and educating the criminal defense bar toward that end. This will inevitably mean that some things our members have been used to for many years may need to be done differently. We will be looking to do more for our members via the Internet and related electronic technology that is more efficient and substantially cheaper than paper publications. I believe this will allow us to maintain—even improve—the quality of our services while cutting the costs.

On a larger scope, I suspect that when the legislature adjourns we will all find that our cheese has been moved in a myriad of ways. Funding for indigent defense, a necessity but never a popular expenditure with the public, is bound to be effected. I do not think the effect will be positive. Private clients will expect more for less money from their attorneys and, as we have already seen, become willing to accept the cheaper lawyer as better than no lawyer or a lawyer they do not perceive they can afford.

Please be open minded as we try to make changes at TCDLA to accommodate the economics of this new day. Please support the officers and the board with constructive criticism as we look to find our moving cheese. While you are at it, remember that your personal professional cheese has probably also been moved.

Executive Director’s Perspective: Spring Cleaning – By Joseph A. Martinez

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Special thanks to the San Antonio Bar—Justice Phylis Speedlin, president, and Jimmy Ellison, executive director—for allowing TCDLA/CDLP to co-sponsor the 48th Annual Criminal Law Institute held in San Antonio March 25–26. They had 293 attendees. This is the oldest CLE event in Texas.

Please start making plans to join us in beautiful San Antonio June 9–11, 2011, for the 24th Annual Rusty Duncan Advanced Criminal Law Course. Breakout sessions include Appellate, Computer/Technology, and Boot Camp.This year’s event will also celebrate TCDLA’s 40th anniversary. The Hyatt Regency on the Riverwalk will be the host hotel. Please note that the TCDLA golf tournament has been moved to back to Thursday, June 9.

We invite all of our TCDLA members to attend the Annual Membership Meeting on Saturday, June 11, immediately following the adjournment of the 24th Annual Rusty Duncan Advanced Criminal Law Course—which should be approximately 11:00 am—at the Henry B. Gonzalez Convention Center in downtown San Antonio.

TCDLA’s legislative effort is being coordinated by the TCDLA Legislative Committee, chaired by Mark Daniel and Rick Hagen. Allen Place is our senior lobbyist, and Kristin Etter and David Gonzalez also serve as our lobbyists. They will keep membership up to date on bills during the session. Please go to our website and get on the TCDLA Legislative listserve.

We have a Legislative Update phone conference call scheduled for Thursday, April 20, at 4:00 pm (CT). Please go to our website for more information.

President-Elect Gary Trichter invites all our members to join him for the Members Retreat July 27–30, 2011, at the unique T-Cross Ranch in the Shoshone National Forrest outside of Dubois, Wyoming. The ranch lies at an elevation of 7,800 feet in an untouched country of pine forests and open meadows, trout-rich streams, and small lakes, with endless vistas rising well over 11,000 feet—scenically magnificent. Space is limited. Please go to our website for more information.

Please join us for the following fun summer CLE events:

July 14–15South Padre Island, Trial Tactics: The Art of War

August 3–4Austin, Innocence Training for Lawyers

August 5Austin, topic TBA

August 10Houston, Field Sobriety Training

August 11–12Houston, 9th Annual Top Gun DWI

August 19Richmond, Trial Tactics: The Art of War

August 19San Antonio, topic TBA

Good verdicts to all.

Editor’s Comment: And Then There Were Three: A Non-Law-Related Story – By Greg Westfall

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I figured out several years ago that emotional devastation over the death of a dog is kind of optional. Our first standard poodle died due to a bad reaction to anesthesia. Mollee and I were devastated, of course, and sat at our dining room table in shock. At once, without giving it much of a thought, I went to the recycling and pulled out the classified ads. Five hours after our first standard poodle, Truman, died, we had our second standard poodle, Hugo, who is black. Later, Mollee decided she wanted another standard poodle, and we added Scarlett, a red female, to our stable.

Two standard poodles is a handful. They are big dogs. It’s like having two miniature ponies walking around the house. They eat a lot. They used to knock the kids over. And they, like the kids, love to go to our ranch. We went there for spring break this year.

At the ranch, we just let the dogs (and the kids) take off. The dogs do more exploring, seemingly, than the kids do. They walk the trails side-by-side in formation, tails up and wagging in unison. They have been sprayed twice by skunks. They have gotten indescribably dirty. But never have I worried about them.

On about day two of our spring break, around five p.m., my son hollered to me that Hugo was foaming at the mouth. I went to check and he was indeed, but it was from panting. His glands had also cut completely loose, which necessitated an immediate bath. I got that done and went back to hanging around. An hour or so later, just before dark, Mollee asked, “Where’s Scarlett?” Immediately I started adding it up. Hugo’s condition, which I had not given much thought to, was totally consistent with some kind of traumatic event. This was not good. The moon was basically full during this time and the coyotes had been very active. Evening-time coyote attacks are not unheard of. Hell, one attacked our beloved governor during the morning, right? But I digress.

In any event, I quickly decided that Scarlett was dead. Of the two, Hugo is much bigger. He is the leader. Scarlett is the follower. Worse, she never struck us as being all that smart—at least when compared to Hugo or other standard poodles. And now she was gone. And it was dark. So I figured it was the classic deal. Hugo and Scarlett are trotting along and happen upon a pack of coyotes, hungry, agitated, yelping like they do. Then, the first law of nature kicks in. For Hugo, the truism goes something like this: “Scarlett, my dear, I don’t have to run faster than these coyotes. I only have to run faster than you.” The whole chivalry thing is probably lost on a dog.

As you might imagine, that was a bad night in our little ranch house. My son was inconsolable. Surprisingly, my daughter didn’t seem to much care. Dogs have never really been her favorites. She quietly read a book while my son gathered up on the floor in a fetal position and cried. Quietly, Mollee and I started looking for a new dog.

We stayed out there one more night. Still, no Scarlett. Even Hugo was depressed. He lay on the couch looking out the window, sighing from time to time. But the conversation inside had shifted. Mollee had found a new little female standard poodle puppy—red, just like Scarlett—in Ada, Oklahoma. She had emailed with the breeder, and the puppy was there and available. So on Wednesday, Mollee put up a little “lost dog” sign on our fence, mainly to appease our son, and we took off from our ranch in Dublin, made a stop in Fort Worth to drop off Hugo, and immediately drove to Ada, Oklahoma. Twelve hours after our journey began, we arrived back in Fort Worth, catatonic and $1,200 poorer but with a very cute little 13-week-old female red standard poodle who had been named “Stella” in the truck on the way back. Friday morning, of course, I got the call.

It is hard to get to know people out in the country, when you just own some land out there. Neighbors are far away. You really don’t see people except on the road. So when Lonnie Smith called me that morning as I was on my way to the office, I didn’t recognize him. But the conversation started, “I think I’m looking at your dog.” He described her. Red poodle. Big. Groomed. Yep, that’s her. He said he first saw her jogging to Proctor about a mile away from our place and knew she belonged to someone, so he didn’t shoot her. But he couldn’t get her to come to him. He would keep trying, though, and give me a call. I told him I would head directly there. I went home and got the two dogs at the house and went. I got updates from Lonnie as I went. He still couldn’t get her to come to him, but he was about to get a burrito from the store and he’d try that.

As it turns out, the burrito worked. I got there and Scarlett was curled up in the back seat of his truck—weak, simple little Scarlett, who had just spent four nights in the wild with the coyotes. Needless to say, I have never looked at her the same since. Scarlett the survivor. There’s a great lesson in there about assumptions and judging books by their covers. Once that burrito finally left her system, I was able to ponder such things. It was great to have her back.

So then there were three—three standard poodles. They are a nice complement, I guess, to our one cat, one python (my daughter’s, of course), two fish, and two kids.

We criminal defense lawyers work hard and our jobs take a lot out of us. Here’s hoping you also have a “non-law-related” story to tell.

Federal Corner: A New Concept on How to Enhance an Advisory Guideline Range – By F. R. Buck Files Jr.

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There is almost always a way for an imaginative United States probation officer, when preparing a Pre-Sentence Report (PSR), to suggest an enhancement to the advisory Guideline range. If you doubt this rather broad statement, you should read United States v. Kramer, ___F.3d ___, 2011 WL 383710 (8th Cir. 2011) [Panel: Circuit Judges Wollman, Bye, and Shepherd. Opinion by Judge Wollman].

In Kramer, the Court held that the term “computer” included a cellular telephone used only to make voice calls and send text messages to a victim; and, that the defendant’s cellular telephone was a “computer” under the Sentencing Guidelines.

Neil Kramer pled guilty to a violation of 18 U.S.C. § 2423(a)—transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with her. At his plea hearing, he acknowledged that he that he had used a telephone—a Motorola Motorazr V3—to call the victim and to send text messages to her for some six months before the commission of the offense.

The PSR recommended a two-level enhancement under U.S.S.G. § 2(g)1.3(b)(3) for using a computer to facilitate the commission of the offense. Kramer’s lawyer objected to the proposed enhancement; however, United States District Judge Richard E. Dorr of the Western District of Missouri overruled the objection and sentenced Kramer to 168 months imprisonment. Judge Dorr acknowledged that he would have sentenced Kramer to 140 months imprisonment but for the enhancement.

Judge Wollman’s opinion includes, in part, the following:

[Kramer’s argument on Appeal]

Kramer argues (1) that application of the enhancement was procedural error because a cellular telephone, when used only to make voice calls and send text messages, cannot be a “computer” as defined in 18 U.S.C. § 1030(e)(1), and (2) that even if a phone could be a computer, the government’s evidence was insufficient to show that his phone met that definition.

[U.S.S.G. § 2G1.3(b)(3) and 18 U.S.C. § 1030(e)(1)]

U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) provides a two-level enhancement for “the use of a computer . . . to . . . persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct. . . .” “‘Computer’ has the meaning given that term in 18 U.S.C. § 1030(e)(1),” U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) cmt. n.1 (2009), that is, it “means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device,” 18 U.S.C. § 1030(e)(1). It does not, however, “include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1).

[Does the Term “Computer” Include a “Basic Cell Phone” Being Used Only to Call and Text Message the Victim? Yes!]

Kramer first argues that the district court incorrectly interpreted the term “computer” to include a “basic cell phone” being used only to call and text message the victim. In his view, the enhancement should apply only when a device is used to access the Internet. We disagree.

[The Court’s Reasoning]

The language of 18 U.S.C. § 1030(e)(1) is exceedingly broad. If a device is “an electronic . . . or other high speed data processing device performing logical, arithmetic, or storage functions,” it is a computer. This definition captures any device that makes use of a electronic data processor, examples of which are legion. Accord Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L.Rev. 1561, 1577 (2010) (“Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of ‘computer.’ That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, in addition to more traditional computers like laptops or desktop computers.” (footnote omitted)). [Emphasis added.]

Additionally, each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information—it performs logical, arithmetic, or storage functions. These functions are the essence of its operation. See The New Oxford American Dictionary 277 (2d ed. 2005) (defining “central processing unit” as “the part of a computer in which operations are controlled and executed”).

Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer “does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. §1030(e)(1). But this hardly excludes all non-Internet-enabled devices from the definition of “computer”—indeed, this phrasing would be an odd way to do it. Whatever makes an automated typewriter “similar” to a hand held calculator—the statute provides no further illumination—we find few similarities between those items and a modern cellular phone containing an electronic processor. Therefore we conclude that cellular phones are not excluded by this language.

Of course, the enhancement does not apply to every offender who happens to use a computer-controlled microwave or coffeemaker. Application note 4 to §2G1.3(b)(3) limits application of the enhancement to those offenders who use a computer “to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.” U.S. Sentencing Guide­lines Manual §2G1.3(b)(3) cmt. n.4 (2009). Therefore, the note continues, the enhancement “would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s In­ter­net site.” Id. This is a meaningful limitation on the applicability of the enhancement, but it is no help to Kramer.

We acknowledge that a “basic” cellular phone might not easily fit within the colloquial definition of “computer.” We are bound, however, not by the common understanding of that word, but by the specific—if broad—definition set forth in § 1030(e)(1). Now it may be that neither the Sentencing Commission nor Congress anticipated that a cel­lular phone would be included in that definition. As tech­nology continues to develop, § 1030(e)(1) may come to cap­ture still additional devices that few industry experts, much less the Commission or Congress, could foresee. But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1) ] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”). [Emphasis added.]

[Was the Evidence Sufficient to Prove that Kramer’s Cell Phone Was a Computer? Yes!]

Kramer’s second contention—that the government’s evidence was insufficient to demonstrate that his cellular phone was a computer—also fails. “The government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence, and we review the district court’s fact findings for clear error.” United States v. Kain, 589 F.3d 945, 952 (8th Cir. 2009).

[The Court’s Reasoning]

The government introduced the phone’s user’s manual and a printout from Motorola’s website describing the phone’s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone’s capabilities. Although doing so might have aided our review, the materials presented to the district court were sufficient to show by a preponderance of the evidence that Kramer’s phone was an “electronic . . . or other high speed data processing device” that “perform[ed] logical, arithmetic, or storage functions” when Kramer used it to call and text message the victim.

The printout reveals that the phone is powered by a “680 mAh Li-ion” battery, JA 118, has “5MB” of memory, JA 119, is capable of running software, id., makes use of a “Graphic Accelerator” to run its color display screens, id., has a “User-customizable” main menu, id., and comes with “Preloaded” text messages, JA 118. Also, the user’s manual contains a “Software Copyright Notice” which warns that the phone “may include copyrighted Motorola and third-party software stored in semiconductor memories or other media.” JA 105. Together, these are sufficient to show that the phone makes use of an electronic data processor.

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user’s manual notes that the phone “keeps lists of incoming and outgoing calls, even for calls that did not connect,” JA 61, and “displays the phone number for incoming calls in [the] phone’s external and internal displays.” JA 66. Additionally, the phone keeps track of the “Network connection time,” which is “the elapsed time from the moment [the user] connect[s] to [the] service provider’s network to the moment [the user] end[s] the call by pressing [the end key].” JA 84. This counting function alone is sufficient to support a finding that the phone is performing logical and arithmetic operations when used to place calls.

The same is true when the phone is used to send text messages. Most fundamentally, the phone stores sets of characters that are available to a user when typing a message. See JA 42, 44. As the user types, the phone keeps track of the user’s past inputs and displays the “entered text,” see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either “one letter at a time” or all at once. Id. In addition, the phone allows the users to “set different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,” including “iTAP” mode which uses “software” to “predict[ ] each word” as it is entered. JA 35. These ca­pa­bil­ities all support the district court’s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim.

[The Court’s Conclusion]

Steve Wozniak, co-founder of Apple Computer, recently mused: “Everything has a computer in it nowadays.” But is an ordinary cellular phone—used only to place calls and send text messages—a computer? The district court, relying on the definition of “computer” found in 18 U.S.C. § 1030(e)(1), concluded that Neil Kramer’s was, and imposed an enhanced prison sentence for its use in committing an offense. We affirm.

My Thoughts

  • The lawyers in our firm were discussing whether to buy the first model of the iPhone for our lawyers and legal assistants. One of my partners commented: “We’re not buying telephones. We’re buying computers that we can make calls with.” It would never have occurred to me then that under U.S.S.G. § 2G1.3(b)(3), an enhancement would be appropriate in any case for someone who used a Razr or iPhone just to make calls or send text messages. Now, we know that it has happened—and that it will happen over and over again.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Said & Done

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Kudos

Kudos to Joshua Webber of Dallas, who won the suppression of ½ pound of meth located under the seat of his client’s vehicle. In this enhanced first-degree felony case, the Dallas County Drug Court judge determined that the search was not an inventory search, and that Gant required suppression. The State gave notice of appeal of the trial court’s ruling on March 24, 2011. Webber also secured the suppression of two pounds of cocaine found in the console of the vehicle driven by his client. The court found that the there was no reasonable suspicion for the detention or the stop and ordered the suppression, and the case was dismissed.

A special recognition is due Tom Brown, who tried an intoxicated manslaughter case this week. An 18-year-old client with 15-year-old cousin had been drinking all night and hit an oncoming car head on, killing the driver of the other car. The family of the victim wanted major pen time (offer was 10 TDC). Tom had friends and relatives of client testify that he was a good kid who had turned his life around as a result of the wreck, finishing with client apologizing to victim’s family, asking with true remorse for forgiveness. Jury came back with 10 probated. Tom says: “When the victim’s family was allowed to address the client after sentencing, three of the adult children of the victim each told the client that after listening to him testify they accepted his apology and did forgive him. The whole courtroom started crying, the two families met in the middle, hugging each other, including the victim’s family hugging the client. Even the judge choked up.” Incredible story, Tom. Bravissimo.

David Callahan got the two-word verdict in Parker County on a charge for possession of meth, enhanced by prior felony to second degree. David was assisted “with wise counsel and help of Judith Hearn and her para­legal, Rose Durbin, as well as investigator Bobby Walton.” As David adds: “I think it takes a team to try a case like this. I had a village. I posted some issues on [the TCDLA] listserve and received sage advice and support from several members. In trial, Larry Moore of Fort Worth took my call at 9:15 p.m., at his home, and provided much needed in-trial advice and support.” Congratulations, David. And way to go, village.

Kudos go out to TCDLA board member Sarah Roland, who has been made a partner in Jackson & Hagen in Denton. Sarah’s motion “Application for Writ of Habeas Corpus” appears in this month’s Catch of the Day.

Texas Super Lawyers came out with its latest list of “Rising Stars” in Texas, and the following TCDLA members are due recognition for being so honored:

Heather Barbieri, Plano

Hunter Biederman, Frisco

Jason Cassel, Longview

Kerrisa Chelkowski, San Antonio

Fred Dahr, Houston

George DeGeurin Jr., Houston

Shawn Dick, Georgetown

Kristin Etter, Austin

Tyler Flood, Houston

Charles Ganz, Houston

Martin A. Gibson, College Station

David M. Gonzalez, Austin

Craig Greaves, Bryan

Phillip Hayes, Dallas

Nancy Kennedy, Dallas

Laurie Key, Lubbock

Leslie Legrand III, Houston

Christopher Lewis, Dallas

Sam Lock, San Antonio

J. Joseph Mongaras, Dallas

M. Michael Mowla, Duncanville

Emily Munoz Detoto, Houston

Omar Nawaz, Dallas

John M. Parras, Houston

Quinton Grant Pelley, Plano

Heath Poole, College Station

Joshua Saegert, Austin

Josh Schaffer, Houston

Todd Shapiro, Plano

Steven Sheltist, Houston

Mark Thiessen, Houston

2011 Texas Criminal Trial College Faculty

Deans

Lydia Clay-Jackson, Conroe
Tim Evans, Fort Worth

Faculty

Susan E. Anderson, Dallas
Samuel E. Bassett, Austin
Stephen W. Brittain, Austin
Brent John Cahill, Navasota
John A. Convery, San Antonio
Mark G. Daniel, Fort Worth
Emily Muñoz Detoto, Houston
Danny Easterling, Houston
Lance Evans, Fort Worth
Michael C. Gross, San Antonio
Ronald P. Guyer, San Antonio
H. F. “Rick” Hagen, Denton
Keith S. Hampton, Austin
Emmett Harris, Uvalde
Michael Head, Athens
Michael P. Heiskell, Fort Worth
Jo Ellen Hewins, Corpus Christi
Daniel W. Hurley, Lubbock
Craig Jett, Dallas
Robert Alton Jones, Houston
Jeff Kearney, Fort Worth
Joetta Keene, Arlington
Vivian R. King, Houston
Constance A. Luedicke, Corpus Christi
Bobby D. Mims, Tyler
Tyrone C. Moncriffe, Houston
David E. Moore, Longview
David P. O’Neil, Huntsville
Kelly Pace, Tyler
Tom Pappas, Dallas
Don Richard, Big Spring
Grant M. Scheiner, Houston
Stanley G. Schneider, Houston
Richard J. Segura Jr., Austin
Pheobe S. Smith, Houston
Mark S. Snodgrass, Lubbock
Ronald T. Spriggs, Amarillo
Greg Westfall, Arlington
Randy Wilson, Abilene
Russell Wilson II, Dallas
Wm. Reagan Wynn, Fort Worth
Terri R. Zimmermann, Houston
Jack B. Zimmermann, Houston

2011 Texas Criminal Trial College Students

Chad Christopher Allman, Forth Worth
Andrew Anderson, Lubbock
Joshua Andor, McKinney
Joseph D. Batson, Amarillo
Eric Joe Benavides, Houston
Terry Bentley Hill, Dallas
John Edward Bonilla, Corpus Christi
Katherine L. Borras, Dallas
Tiffany N. Branson, Weatherford
Karen Bretzke, Tyler
Mark R. Briley, Abilene
Nancy Bunin, Houston
Joan Cain, Sugar Land
Melisa Canales, Edinburg
Cynthia Cantu-Del Bosque, Edinburg
Thomas Daniel Carter IV, El Paso
Aaron R. Carter, Lubbock
Adrian Castillo, Amarillo
Jose Ceja, Houston
Kimberly C. Clark, Huntsville
Cheryl A. Cooper-Sammons, Longview
Robert R. Cowie, Lubbock
Michael J. Crawford, Kerens
Jeremy Crew, Lufkin
Gabriel De Vega, San Antonio
Jennifer M. Ebrom, New Braunfels
Amber D. F. Elliott, Austin
Cynthia A. Fitch, Haltom City
Lindsay Gilland, Fort Worth
Stefanie M. Gonzalez, Lubbock
Coretta Graham, Corpus Christi
Lisa Greenberg, Corpus Christi
Francisco Guerrero II, Edinburg
Angie Emery Hadley, De Leon
Christie Lee Hancock-Jones, Livingston
Ryan Hardy, Fort Worth
Joshua J. Herrera, El Paso
F. Brice Hersom, Spring
Heather Kay Hines, Seguin
Martin Hunt, Nacogdoches
Paul Damian Hyde, Granbury
Robert Kersey, Granbury
Keaton D. Kirkwood, Liberty
Charles M. Kroscher, Longview
Jessica A. Kroscher, Longview
Michael C. Lactson, Houston
Randy L. Langford, Austin
Tot Kim Le, Houston
David Allen Levine, San Antonio
Larry McCotter, Conroe
Richard McCracken, Fort Worth
Carolyn F. McDaniel, Richmond
Larry Prater McDougal Jr., Richmond
Ira Miller, Corpus Christi
Paula Maria Miller, Houston
Dean Miyazono, Corinth
Sarah Molzow, Lubbock
Baharan Muse, Huntsville
Joshua Peacock, Hurst
Shane Phelps, Bryan
Alberto G. Salceda, Houston
Dave Sanchez Jr., San Antonio
William Lloyd Savoie, Houston
Sergio J. Selvera, Houston
Michel LaNett Simer, Axtell
Joseph A. Sindon, Pearsall
J. Ricardo Soliz, Houston
Joshua Cody Spencer, El Paso
Courtney Griffin Stamper, Houston
Sara Stapleton, Brownsville
John D. Talley, Amarillo
Donald R. Taylor, Jr., Brownwood
Russell Thorum, Dumas
Courtney Tracy, Newton
Michelle Simpson Tuegel, Waco
Daniel Vargas, Edinburg
Joel Vazquez, Beaumont
John E. Wells III, Livingston
Andrew A. Wright, Houston
Robin W. Wright, Highland Village

Legislative Update, April 2011 – By Allen Place

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As of April 4th, 2011, the Texas legislature only has 56 days left to complete their business in the regularly called session. Many people are predicting one or more special sessions due to budgetary issues. Last week, the House approved $3.1 billion from the Rainy Day Fund to pay the State’s bills from now through August of 2011. This was necessary as state revenues have not kept up with expenses. Although over $6 billion remains in the Rainy Day Fund, Governor Perry has said that he would not approve a budget for 2011–2012 that taps that emergency fund.

In regards to criminal law bills, TCDLA is tracking several hundred bills. Although we are playing defense on many of these bills, there are several positive bills making their way through the system. The eyewitness identification bill, from the Tim Cole Commission, has already received preliminary approval in both chambers. No other major legislation, either good or bad, has advanced at this point as committees are deep in their work. Last week, approximately ten lawyers came to the Capitol to speak against a poorly conceived bill that would significantly impair the ALR system. This was appreciated as this bill hearing fell on a Tuesday when we track three and sometimes four committee meetings at the same time.

Two bills vetoed last session are again under consideration. There are several expunction bills in both chambers that would clarify and improve this statute. Also, a bill improving the sex offender registration system for some offenders is being heard in the Senate Criminal Justice Committee the week of April 4th.

The surcharge system has been criticized since it began several years ago. More than one legislator indicated a bill would be filed to terminate or at least redefine the program. However, the leading proponent of repealing the surcharge program pulled his bill last week due to the high cost of doing so. In other words, the bill was pulled by the author because the State needs all available revenue.

We have had a lot of calls regarding the DWI deferred bill. This matter has not yet come up for a hearing in the Senate although the House heard the bill in late March. The bill is not a “pure” deferred adjudication and has some mandatory requirements, such as interlock. There are a lot of mixed feelings in the legislature on this subject and it is too early to predict the future of this bill.

Within the next two months, the legislature intends to do the following: pass a budget, draw new legislative and congressional districts, pass various Sunset bills to keep several state agencies operating, and pass several “emergency items” such as Voter ID, eminent domain, and elimination of sanctuary cities. Our goal remains the same—to promote bills that provide for equal justice and fair play in the criminal justice system. We will do our best to keep our eye on that goal every day, and I hope to see all of you at Rusty Duncan in San Antonio in June.