Monthly archive

May 2011

May 2011 SDR – Voice for the Defense Vol. 40, No. 4

Voice for the Defense Volume 40, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Pepper v. United States, 131 S. Ct. 1229 (U.S. 2011); Vacated in part, affirmed in part & remanded: Sotomayor (6–2)

Jason Pepper pleaded guilty in a federal district court to conspiracy to distribute 500 grams or more of a substance containing meth. In the latest of a series of appeals and remands, a newly assigned Iowa federal district court sentenced Pepper to 77 months in prison and 12 months supervised release—a 20 percent downgrade from the Federal Sentencing Guidelines advisory range. Thereafter, the district court granted the government’s motion to reduce Pepper’s sentence further to 65 months because of assistance Pepper provided after he was initially sentenced. Pepper appealed, arguing in part that the district court should consider evidence of his post-sentence rehabilitation to reduce his sentence further. The Eighth Circuit affirmed Pepper’s sentence, holding in part that evidence of a defendant’s post-sentence rehabilitation was not relevant at resentencing.

HELD: When the defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s rehabilitation after the initial sentences; and that evidence may, in appropriate cases, support a downward variance from the sentencing guidelines. Because the Eighth Circuit set aside Pepper’s entire sentence and remanded for de novo resentencing, the district court was not bound by the law of the case doctrine to apply the same 40 percent departure applied by the original sentencing judge. To avoid undermining a district court’s original sentencing intent, an appellate court when reversing one part of a sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy 18 U.S.C.S. § 3553(a)’s sentencing factors. That is what the Eighth Circuit did here.

Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011); Reversed & remanded: Sotomayor (6–2)

A trial court convicted Richard Perry Bryant of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during commission of a felony. On appeal, Bryant challenged the admission of the victim’s statements at trial for violating his Sixth Amendment right of confrontation. The victim stated that Bryant shot him, but died shortly thereafter. The Michigan Supreme Court reversed, holding that the statements that the victim made to police before his death were testimonial and their admission violated Bryant’s right to confrontation. The court reasoned that the victim’s statements were made in the course of a police interrogation whose primary purpose was to establish or prove events that had already occurred, not to enable police to meet an ongoing emergency. Therefore, the statements were “testimonial” for the purposes of the enhanced confrontation protections set forth in Crawford v. Washington, 541 U.S. 36 (2004), and should not have been admitted against Bryant because he did not have the opportunity to cross-examine the victim prior to his death.

HELD: Inquiries of wounded victims concerning the perpetrator are non-testimonial if they objectively indicate that the purpose of the interrogation is to enable police assistance to meet an ongoing emergency, and, thus, not afforded heightened protection under Crawford. The identification and description of the shooter and the location of the shooting were “not testimonial statements because they had a ‘primary purpose . . . to enable police assistance to meet an ongoing emergency.’ Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.”

Wall v. Kholi, 131 S. Ct. 1278 (U.S. 2011); Affirmed: Alito (9–0)

In 1993, a Rhode Island jury convicted Khalil Kholi on ten counts of first-degree sexual assault. A judge on the state superior court sentenced Kholi to two consecutive terms of life in prison, and the state supreme court affirmed the conviction in 1996. Kholi did not file a federal writ of habeas corpus at that time. Instead, he filed a motion seeking sentence reduction as a form of post-conviction relief, which was denied. Kholi exhausted his procedural options regarding sentence reduction in 2007, at which time he began his appeal for federal writ of habeas corpus, which was well beyond the Antiterrorism and Effective Death Penalty Act’s standard one-year limitation on filing. In 2009, the First Circuit reversed and remanded the district court’s judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. The First Circuit’s decision was in line with a Tenth Circuit ruling, but the Third, Fourth, and Eleventh circuits have previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA.

HELD: Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, respondent’s motion tolled the AEDPA limitation period; his federal habeas petition was timely. Inmates have one year to file a habeas challenge to their sentence in federal court after conviction. The running of that time is delayed while the conviction is under review in state court. The time is also tolled while a state court considers an inmate’s request for a sentence reduction.

Skinner v. Switzer, 131 S. Ct. 1289 (U.S. 2011); Reversed: Ginsburg (6–3)

A Texas state court convicted Henry Skinner of capital murder and sentenced him to death. Subsequently, Skinner brought a 42 U.S.C. §1983 suit against the prosecuting attorney in a federal district court alleging that his Fourteenth Amendment right to due process and Eighth Amendment right to be free from cruel and unusual punishment were violated when the district attorney refused to allow him access to biological evidence for DNA testing. The district court dismissed the case. The Fifth Circuit affirmed, holding that precedent established that Skinner’s claim was not cognizable as a 42 U.S.C. § 1983 action, but instead must be brought as a petition for writ of habeas corpus.

HELD: A convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983.

Connick v. Thompson, 131 S. Ct. 1350 (U.S. 2011); Reversed: Thomas (5–4)

John Thompson sued the Orleans Parish District Attorney’s Office, District Attorney Harry Connick, in his official and individual capacities, and several assistant district attorneys in their official capacities under 42 U.S.C §1983 in a Louisiana federal district court. Thompson served 14 years on death row for a crime he did not commit because prosecutors failed to turn over blood work in a related case. The jury awarded Thompson $14 million against Connick in his official capacity. On appeal, an en banc Fifth Circuit rendered a tie vote and, thus by rule, affirmed.

HELD: A prosecutor’s office cannot be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from deficient training.

Fifth Circuit

United States v. Johnson, 619 F.3d 469 (5th Cir. 2010)

In sentencing defendant convicted of bank robbery under 18 U.S.C. §2113(a), district court did not err in applying a 4-level enhancement under USSG § 2B3.1(b)(4)(A) for abduction of a victim; even though the victim (a teller) was not made to enter or exit a building, defendant did (1) force teller from behind her counter to the front of the bank, (2) force her back to her drawer for a key to the back door, and (3) force her to accompany him to the rear door to unlock it, facilitating his escape.

Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010)

Death-sentenced defendant was not entitled to federal habeas relief on his claim that the prosecution exercised a peremptory challenge on a black prospective juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. The prosecution offered more than one race-neutral reason for striking the juror, and defendant failed to rebut one of those reasons (the prospective juror’s alleged inattentiveness). The Mississippi Supreme Court’s decision that the trial judge allowed the strike because it implicitly credited the prosecutor’s assertion of inattentiveness, and its decision to defer to the trial court’s implicit factual finding, is not an unreasonable application of Batson. The Fifth Circuit noted that in Thaler v. Haynes, 130 S. Ct. 1171 (2010) (per curiam), the Supreme Court reversed the Fifth Circuit’s understanding of Snyder v. Louisiana, 552 U.S. 472 (2008), and limited the latter decision’s holding to cases where a trial judge did not explain why he overruled a Batson challenge and one of the allegedly race-neutral reasons offered by the prosecutor was race-based. The Fifth Circuit also denied a certificate of appealability on defendant’s claim that the representation afforded him in the Mississippi post-conviction review process was so deficient as to deny him due process. A defendant has no constitutional right to appointed counsel in post-conviction proceedings, and hence no constitutional redress if post-conviction counsel performs deficiently. Judge Haynes concurred; she affirmed on the Batson issue “only because of the highly deferential review standard required by AEDPA” and noted that given some of the “disturbing and inappropriate” remarks in the record, “[h]ad this been a direct appeal of the state trial court’s decision, [her] decision very likely would have been different.”

United States v. De Cay, 620 F.3d 534 (5th Cir. 2010)

To satisfy restitution obligations owed by two defendants, the federal government could garnish those defendants’ retirement benefits held by a Louisiana state pension fund. Neither the Internal Revenue Code, the Tenth Amendment, nor Louisiana law barred garnishment of those retirement benefits. Moreover, the federal government could compel a “cash-out” of one defendant’s benefits. However, as to a second defendant, whose benefits were paid monthly, the Consumer Credit Protection Act limited the federal government’s right to garnish defendant’s pension to 25 percent of his monthly benefits. The Fifth Circuit affirmed the garnishment order against the first defendant but reversed and remanded the order as to the second.

United States v. Meza, 620 F.3d 505 (5th Cir. 2010)

Where (1) district court mistakenly sentenced defendant to 33 months on a new charge, plus a consecutive 10-month sentence for supervised release revocation, for a total of 43 months, but then, recognizing its error, (2) changed the new charge sentence to 30 months and increased the supervised release revocation sentence to 13 months, so as to keep the sentence at 43 months, the district court did not exceed its authority or jurisdiction. Unlike the sentence increase overturned in United States v. Ross, 557 F.3d 237 (5th Cir. 2009), the application for a modification (albeit of the sentence on the new charge) was made by a party and occurred in the same hearing, and within moments of, the original pronouncement. The instant case was also distinguishable from United States v. Cross, 211 F.3d 593, 2000 WL 329247 (5th Cir. 2000) (unpublished), in which the court had already gaveled the sentencing hearing to a close and had to reconvene to enter a new sentence; here there was no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.

United States v. Gonzalez-Rodriguez, 621 F.3d 354 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from the DEA case agent, it plainly erred in admitting other testimony that crossed the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge; however, these errors did not require reversal on plain-error review because defendant failed to show a reasonable probability of a different outcome but for the erroneously admitted evidence.

(2) District court did not err in denying defendant’s motion to dismiss under the Speedy Trial Act (STA). The delay associated with the government’s oral motion for detention was excludable under 18 U.S.C. §3161(h)(1)(D); thus defendant’s indictment was returned within the 30 days prescribed by the STA. The Fifth Circuit “join[ed] almost all of [its] sister circuits in holding that when an oral pretrial motion is made on the record with both parties present, it is ‘filed’ just like a written motion for purposes of § 3161(h)(1)(D).”

Jimenez v. Wood County, 621 F.3d 372 (5th Cir. 2010), reh’g en banc granted, 626 F.3d 870 (5th Cir. 2010)

The panel was bound by Fifth Circuit precedent holding that a strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband. If the rule is to be changed, it must be done by the Fifth Circuit sitting en banc (as the Ninth and Eleventh circuits recently have done). Under this rule, plaintiffs were entitled to relief under 42 U.S.C. §1983 because they were arrested for minor offenses and were strip-searched without reasonable suspicion.

Court of Criminal Appeals

Appellant’s PDRs

State v. Rhinehart, 333 S.W.3d 154 (Tex.Crim.App. 2011); COA reversed, trial court affirmed

Appellee was charged in juvenile court with an aggravated robbery committed 44 days before his 17th birthday. Three days after appellee’s 18th birthday, the State filed a petition in juvenile court to transfer appellee’s case to a criminal district court, where appellee would be tried as an adult. Appellee claimed at a transfer hearing that the State did not use due diligence in proceeding with his case in juvenile court before his 18th birthday. The juvenile court waived its jurisdiction and transferred appellee to district court, after which he was indicted for aggravated robbery. Appellee raised the due-diligence issue in the district court in a “motion to quash indictment.” The district court held a hearing on the motion, during which the parties relitigated the due-diligence issue. The State’s only argument was that it had used due diligence. The district court granted appellee’s motion.

On appeal, the State claimed for the first time that (1) the criminal court was without jurisdiction to review “the evidence underlying the juvenile court’s decision to transfer this case” because appellee “had no statutory right to appeal the sufficiency of the evidence in the juvenile court’s transfer proceedings prior to being finally convicted in the criminal district court,” and (2) the district court erred to grant appellee’s motion on a ground not authorized by law because the sufficiency of the evidence supporting a juvenile court’s order to transfer a case to district court is not a valid ground for granting a motion to quash an indictment as a matter of statutory law. COA sustained the State’s second issue, found it unnecessary to address its first issue, reversed the order quashing the indictment, and remanded the case to the district court.

HELD: The State, as the losing party in the district court, could not raise for the first time on appeal a claim that there was no valid basis for the court to have quashed the indictment.

Howard v. State, 333 S.W.3d 137 (Tex.Crim.App. 2011); Affirmed

Appellant entered a store wielding a rifle and concealing his face with fabric. The store’s owner and cashier, Mukesh Patolia, was alone in the store and in a back office. After observing appellant on his security-camera monitor and through a one-way window, Patolia locked the office and called 911. There is no evidence in the record showing appellant was aware of Patolia. Appellant was unable to open the cash register, but took Patolia’s wallet from the counter and money from underneath. A jury convicted appellant of aggravated robbery and sentenced him to life in prison. COA affirmed.

CCA granted review on this novel issue: “Does the offense of aggravated robbery require interaction between the accused and the purported victim?” Appellant contests that because he could not intentionally or knowingly place in fear “a person whose presence or even existence [was] unknown” to him, the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to theft. Because the jury could have found appellant guilty for either of these culpable mental states, CCA only addressed the less-culpable mental state of knowingly.

HELD: “Knowingly” does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear. Given the video evidence, a rational juror could have inferred that appellant was aware it was reasonably certain his actions would place someone in fear of imminent bodily injury or death. The fact that appellant did not see Patolia—who testified that he was frightened by appellant—does not negate appellant’s culpable mental state.

Byrd v. State, __S.W.3d__ (Tex.Crim.App. No. 0738-10, 3/30/11); Reversed & acquittal ordered

Appellant contended that the State’s evidence was insufficient to support a conviction of misdemeanor theft because the State alleged the wrong owner at trial. A sharply divided en banc COA held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance.

HELD: “‘[V]ariance’ ought to be used to describe instances in which there is a minor discrepancy between the facts alleged and those proved, such as a difference in spelling, in numerical digits, or in some other minor way.” But when the discrepancy between the charging instrument and the proof at a theft trial is that of an entirely different person or entirely different property, that discrepancy is not merely a variance, it is a failure of proof. Thus, because the State failed to prove that the named owner had any ownership interest in the property, the evidence is insufficient under the principles in the Malik, Gollihar, and Fuller trilogy.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 1400-10, 3/30/11); Reversed & remanded

Appellant was convicted of aggravated robbery, and a jury sentenced him to ten years’ confinement. During voir dire, defense counsel asked: “Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon. What factors do y’all think are important?” Without an objection from the State, the court interjected, “[Counsel], that’s a commitment question. You can’t ask that question.” Appellant petitioned that COA erred in affirming this as an improper commitment question.

HELD: Where jurors will be required to choose between only two possibilities, inquiries into what will influence their decision are more likely to require commitments than in situations where jurors can choose among a broader range. COA compared appellant’s question to one posed in Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). “What circumstances in your opinion warrant the imposition of the death penalty?” Standefer is distinguishable as it asked jurors to define situations in which they would impose a specific sentence. Had counsel asked jurors what circumstances would warrant the maximum punishment, that would have been an impermissible commitment question. Instead, the question sought to discover which factors would be important to jurors’ decisions, without inquiring how those factors would influence the decision. The question in this case is also distinguishable from the death-penalty question because sentencing for a capital felony has only two possible outcomes. In this case, there is a much broader range of sentencing possibilities.

State’s PDRs

Rice v. State, 333 S.W.3d 140 (Tex.Crim.App. 2011); Affirmed

Appellant was charged with two counts of aggravated assault with a deadly weapon—to wit, a motor vehicle. A jury convicted him of both counts and sentenced him to five years’ imprisonment on each charge. COA reversed and remanded, concluding that the trial court erred by failing to instruct the jury on the lesser-included offense of reckless driving and that appellant was harmed by such error. CCA granted review to determine whether the lesser-included-offense instruction should have been given when the indictment did not allege that appellant drove a motor vehicle.

HELD: The first step of the Hall lesser-included-offense analysis requires courts to determine if reckless driving is a lesser-included offense of aggravated assault as charged. Courts do not consider the evidence that was presented at trial; they consider only the statutory elements of aggravated assault with a deadly weapon as modified by the particular allegations in the indictment. Under this analysis, the elements of reckless driving are not included within the facts required to establish aggravated assault with a deadly weapon as charged.

Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App. 2011); Reversed & remanded

Appellant was convicted of three offenses of aggravated sexual assault and sentenced to 70 years’ confinement with a $30,000 fine. Much of the testimony related to acts committed before appellant turned 17. COA held that he was denied a fair trial because the jury charges did not limit the jury’s consideration to evidence of acts committed after his 17th birthday. CCA granted review to consider the effects of the jury instructions given and not given. The State petitioned that in the absence of a request for a Tex. Penal Code §8.07(b) instruction from defense counsel, the judge is not required to sua sponte instruct the jury on this point. The State also argued that COA should have found any error to be harmless.

HELD: A charge is erroneous if it presents the jury with a much broader chronological perimeter than is permitted by law. The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions,” and this is an “absolute sua sponte duty.” In this case, the judge had a sua sponte duty to provide an 8.07(b) instruction. While the jury instruction did not specifically refer to “any offense anterior to the presentment of the indictment,” it did not limit the jury’s consideration of such. The absence of an 8.07(b) instruction, combined with the evidence of appellant’s conduct as a juvenile and the instruction that the jurors did receive—that “a conviction may be had” for any offense committed before the victim’s 28th birthday—resulted in inaccurate charges that omitted an important portion of applicable law. Therefore, CCA found a violation of Tex. Code Crim. Proc. art. 36.14. In determining whether the error resulted in egregious harm, CCA looked to the facts that show appellant’s 17th birthday fell in the middle of an eight-year pattern of abuse. The jury could have convicted appellant of the same offense even if the proper instruction had been given and appellant’s pre-17 acts were disregarded by the jury. COA was correct that the court erroneously failed to instruct the jury on Section 8.07(b); however, the error did not result in egregious harm.

Prudholm v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1611-08, 3/16/11); COA affirmed, remanded to trial court

This is an appeal from a sentence enhanced under Tex. Penal Code §12.42(c)(2), which mandates a life sentence for a defendant convicted of a sex-related offense listed in Subsection A if the defendant has been previously convicted of a Texas offense listed in Subsection B or an offense “under the laws of another state containing elements that are substantially similar to the elements” of a Texas offense listed in Subsection B. Here, CCA must decide whether the California offense of sexual battery contains elements that are substantially similar to the elements of the Texas offenses of sexual assault or aggravated kidnapping.

HELD: Sexual battery does not contain elements that are substantially similar to aggravated kidnapping or sexual assault. While the elements of the California and Texas offenses may be similar in a general sense, they do not display the high degree of likeness required to be substantially similar.

State v. Johnston, __S.W.3d__ (Tex.Crim.App. No. PD-1736-09, 3/16/11); COA reversed, remanded to trial court

COA held that the unrecorded and compelled draw of appellee’s blood by police officer, who was a seasoned EMS provider, in the police station’s blood-draw room while appellee was restrained violated the Fourth Amendment’s reasonable manner requirement.

HELD: CCA clarified the necessity to consider both reasonableness questions under Schmerber v. California, 384 U.S. 757 (1966): (1) whether the test chosen was reasonable; and (2) whether it was performed in a reasonable manner. For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol level. For the second prong of the reasonableness question, the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. The officer’s specific training and experience as an EMT qualified him to perform the blood draw. Furthermore, while a medical environment may be ideal, it does not mean that other settings are unreasonable under the Fourth Amendment. An environment is deemed safe (reasonable) if it is in accordance with accepted medical practices and therefore does not “invite an unjustified element of personal risk of infection or pain.” Under the totality of the circumstances, appellee’s blood was drawn in accordance with acceptable medical practices and was therefore reasonable.

State v. Robinson, __S.W.3d__ (Tex.Crim.App. No. PD-1206-10, 3/16/11); COA & trial court reversed, remanded to trial court

Appellee was arrested without a warrant for DWI. He was transported to a hospital, where he consented to have his blood drawn. Appellee filed a motion to suppress the results, claiming his blood was drawn without a warrant and without consent and was not drawn by a qualified person; thus, it should have been suppressed under both the Fourth Amendment and Tex. Code Crim. Proc. art. 38.23. The State stipulated to the unwarranted arrest, relieving appellee from the burden of rebutting the presumption of proper police conduct in making the arrest. The State argued that the trial court improperly shifted the burden of proof on the 38.23 suppression issue; because appellee brought the motion to suppress, he retained the burden of proof to establish that the blood draw was not in accordance with the statutory requirements.

HELD: The defendant has the initial burden of proof under 38.23, which shifts to the State only when a defendant has produced evidence of a statutory violation. However, appellee never produced evidence of a statutory violation. Therefore, the State never had the burden to prove that the blood sample was drawn by a qualified person.

Writs of Habeas Corpus

Ex parte Ghahremani, 332 S.W.3d 470 (Tex.Crim.App. 2011); Granted

Applicant was convicted of two separate accounts of sexual assault and aggravated sexual assault of two minors. The jury assessed the maximum punishment—20 years for one assault and 28 years for the other. The convictions and sentences were affirmed on appeal. Applicant asserted that the State failed to disclose favorable evidence and “presented [one of the victim’s] parents’ misleading testimony creating the false impression that her physical, emotional, and psychological problems resulted solely from her sexual encounter with applicant.” The essence of applicant’s claim was that the State knowingly presented false testimony; the suppression of a particular police report is merely evidence that the testimony was false (and that the State knew it was false). The convicting court made findings of fact and recommended relief.

HELD: There is a reasonable likelihood that the false testimony affected applicant’s sentences. Applicant must also show that this due process violation was not harmless. When the State knowingly uses false testimony, the determinative factor in whether the defendant can raise the issue on direct appeal is, frequently, how well the State hid its information. Here, applicant had no opportunity to present his claim on direct appeal, in large part because the State concealed information suggesting that the testimony was misleading. When a habeas applicant has shown that the State knowingly used false, material testimony, and the applicant was unable to raise this claim at trial or on appeal, relief from the judgment obtained by that use will be granted. Therefore, relief is granted; the convicting court may hold new punishment hearings.

Ex parte Thiles, 333 S.W.3d 148 (Tex. Crim. App. 2011); Granted

Applicant alleged that he was “constructively released” from custody erroneously and through no fault of his own and is therefore entitled to credit towards time served from the time that the mandate of affirmance was issued in 1987. The State, applicant, and trial court agreed that the principle of reasonableness underlying the erroneous release cases should apply to this case and that applicant should be granted relief.

HELD: This principle should apply here. Because of the inaction of the State, applicant was never informed that a mandate of affirmance had issued in his case. He never violated the conditions of his appellate bond, having never been called to appear before the court upon the affirmance of his conviction on appeal. Instead, he was allowed to remain at large erroneously, without his knowledge and through no fault of his own. Applicant is entitled to day-for-day time credit from the time the appellate mandate issued (1987) to the time he was finally arrested on the warrant (2007). Had he been incarcerated in 1987, his sentence would have discharged in 2001. CCA ordered applicant’s immediate release.

Ex parte Niswanger, __S.W.3d__ (Tex.Crim.App. No. AP-76,302, 3/16/11); Denied

Applicant was charged with and pled guilty to impersonating a public servant for a sentence of 10 years’ confinement, as opposed to the minimum sentence of 25 years. Applicant filed this pro se writ of habeas corpus, claiming his plea was involuntary because his attorney was ineffective for failing to investigate the facts. The trial court entered findings of fact and conclusions of law recommending relief be denied.

HELD: Applicant did not prove by a preponderance of the evidence that counsel’s representation fell below the objectively reasonable standard. Therefore, applicant failed to show that his plea was unknowingly or involuntarily made because of ineffective assistance.

Direct Appeal

Freeman v. State, __S.W.3d__ (Tex.Crim.App. No. AP-76,052, 3/16/11); Affirmed

A jury convicted appellant for capital murder of a Texas game warden. Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, the trial court sentenced appellant to death.

HELD: Appellant’s 12 points of error, the most notable listed below, are without merit; the trial judgment and sentence are affirmed.

Appellant alleged the trial court erred in denying his motion for change of venue because he could not obtain a fair trial in Wharton County. Appellant presented only speculation that the court abused its discretion in denying this motion.

Appellant complained it was harmful, reversible error when the prosecutor compared him to a serial killer and described his experts as “hired guns” during the State’s closing arguments at the guilt phase. Given the brevity of the prosecutor’s comments, the lack of prejudice, and the strength of the evidence supporting appellant’s conviction, any errors associated with those comments were harmless. Likewise, the court did not err in overruling his objection to the prosecutor’s argument that he tried “to commit the worst criminal act on law enforcement ever in the United States’ history.”

Appellant complained the court “continually den[ied] defense counsel’s attempts to explore mercy as a consideration during the individual voir dire.” Appellant did not show that he was forced to accept any objectionable jurors.

Appellant alleged the court erred in refusing to grant a hearing on his motion for new trial on the following grounds: (1) there was unauthorized communication between the bailiff and jury that violated his Sixth Amendment right to an impartial jury, and (2) the future dangerousness question violates due process. On the first point, the bailiff’s direction to jurors to keep their voices down so that they could not be heard outside the jury room did not implicate appellant’s right to an impartial jury. Regarding the second point, CCA has repeatedly stated that the facts of an offense alone may support an affirmative future dangerousness finding.

Motion for Leave to File Original Writ of Mandamus

State v. Dittman, __S.W.3d__ (Tex.Crim.App. No. 74,593-01, 3/30/11); Denied

A sexual assault case is pending in the district court. Complainant was interviewed at the Child Advocacy Center. The State has a DVD recording of the interview, and the court has ordered the State to make a copy of the recording for defense counsel. The prosecutor sought a writ ordering the district judge to rescind his order. The issue is whether the order to make the defense a copy is permitted under the discovery statute, Tex. Code Crim. Proc. art. 39.14(a).

HELD: In applying the plain language of the statute, CCA held that the court’s order for the State to make the DVD copy, which is an easy and inexpensive task, is reasonable. Alternatively, the court could have ordered the State to deliver the original copy of the DVD to defendant to duplicate, which is a seemingly less desirable option.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Parks v. State, 330 S.W.3d 675 (Tex.App.—San Antonio 2010, pet. ref’d)

Encounter between D and officers was not consensual. One officer used a spotlight to illuminate D, who was walking behind a mall with three other men, and the officers communicated in an authoritative tone to D to walk to the patrol car and place his hands on the car. The court emphasized that two officers were present (armed and uniformed). Although D did not immediately place his hands on the car, he yielded to officer’s request/command by stopping his path of travel. Officers were without RS, even though one officer noticed that D and the three accompanying men had blue rags in their pockets, and even though officer associated blue rags with gang members and believed that gang members often carry weapons to protect themselves or drugs. “While the State correctly argues that gang membership may be a factor to be considered in determining if reasonable suspicion exists, it has not cited any authority holding that gang membership alone provides reasonable suspicion for an investigative detention or a Terry frisk.” Moreover, officer did not testify that any particular gang identified with blue rags or that such a gang was active in the area, and officer did not explain how he acquired his knowledge about the weapon-carrying propensities of that gang.

Gonzales v. State, 330 S.W.3d 691 (Tex.App.—San Antonio 2010)

DWI conviction upheld, even though officers were unable to locate D after the accident for up to 30 minutes, at which point officers found D at his residence—where he had partaken in post-accident drinking. “[D] testified that the cause of his intoxication was his consumption of three glasses of wine after arriving at his residence,” and D alleged that the accident was due to a tire blowout and sleep deprivation. The court nevertheless determined that various circumstantial evidence was sufficient to support the conviction: a one-vehicle accident, no skid marks, driver left scene of accident, and officer’s testimony that “a person would not likely have reached the level of intoxication he observed in [D] unless the person drank continuously for twenty minutes, and he saw no evidence near [D] that indicated [D] had been drinking at his residence.”

Tanner v. State, No. 09-09-00458-CR, 2010 WL 4263822 (Tex.App.—Beaumont 10/27/10)

Prosecutor’s calling attention to D’s lack of witnesses did not constitute an improper comment on D’s failure to testify because D was not the only witness who could have been called to testify. “A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper.”

Vasquez v. State, 324 S.W.3d 912 (Tex.App.—Houston [14th Dist] 2010)

The State argued successfully that the following gave rise to RS: “(1) the initial stop was out of the ordinary when [D] pulled to the left rather than to the right; (2) [D’s] distant travel plans to Greenspoint Mall when there were several major malls in between his home and Greenspoint Mall; (3) [Trooper’s] knowledge of the Greenspoint Mall being a ‘high-crime area’ and a ‘source location for the ultimate destination of drugs and narcotics’[;] (4) [D’s] absence from work during the day; (5) [D’s] desire to travel so far when gas prices were almost $4.00 a gallon; (6) [D’s] failure to identify the store or the type of dress he was looking for; (7) [Trooper’s] past training in identifying signs of someone involved in a crime; and (8) [D’s] frequent face scratching and the appearance of his very pronounced and pulsating carotid arteries.” Furthermore, consent to search was “voluntary,” even though officer withheld D’s driver’s license while he asked D for consent, in large part because officer told D “he could hit the switch in the patrol car if he wanted to stop the search” and D never hit the switch. Also, D was not in handcuffs during search.

Colford v. State, No. 05-09-01360-CR, 2010 WL 4370952 (Tex.App.—Dallas 11/5/10)

Officers entered residence “voluntarily,” where, after knocking, officers heard one inhabitant yell “come in,” even if that particular inhabitant was a guest and had no actual authority over the premises. “[Officers] responded to a dispatch call regarding a citizen’s complaint that someone was selling drugs at a Dallas residence. . . . The officers could hear movement inside the house and knocked on the door. [Officer] testified that after a voice in the house said ‘come in’ in a ‘really agitated voice,’ he opened the door. He saw five or six people sitting on a couch in the living room. Two or three of the individuals had crack pipes in their hands. . . . Officer further stated that ‘[a]t the time someone said come in, [he] was under the belief that it was the person that was in charge of the house, saying come in. . . .’ A third party’s consent is valid if the facts available to the officer at the time of the search would allow a person of reasonable caution to believe that the consenting party had authority over the premises. . . . Thus, even if it was not [D] who said ‘come in,’ [officer] reasonably believed that someone with authority to consent to the officers’ entry provided consent.”

Moskey v. State, No. 01-09-00532-CR, 2010 WL 4484190 (Tex.App.—Houston [1st Dist] 11/10/10)

D unsuccessfully argued that inventory search did not comply with police department policy. “Both [officers] testified that they needed to impound the vehicle [D] was driving and conduct an inventory search because there was no one to whom the officers could release the vehicle. According to [officer], even if [D] had not been alone in the vehicle, the expired registration, inspection sticker, and lack of proof of insurance rendered the car unable to be legally driven from the scene. . . . [Officer] stated that the glove compartment was unlocked, and he therefore opened the compartment to complete the inventory pursuant to departmental policy. [Officer] then discovered the marijuana in the unlocked glove compartment. . . . [B]ased upon the testimony of [officers], the trial court reasonably could have determined that [officer] conducted the inventory search of [D’s] vehicle in accordance with standardized police procedures.”

Hogan v. State, 329 S.W.3d 90 (Tex.App.—Fort Worth 2010)

Blood-extraction search warrant affidavit sufficiently described D as person who was driving vehicle, even though affidavit never specifically stated D was the person driving. The affidavit explained that officer “had good reason to believe that appellant had operated a motor vehicle, described how officers saw a car progress recklessly and illegally through the streets of Fort Worth, explained that officers stopped the car that they observed being driven recklessly and illegally, and then said that at the scene of the stop, [officer] made contact with [D]. The affidavit does not indicate that anyone other than [D] (and other police officers) was at the scene (and therefore does not create doubt that someone else could have driven the ‘IMP’). Thus, we conclude that the magistrate could have reasonably inferred that [D] drove the vehicle described in the affidavit.”

Furthermore, the affidavit sufficiently described D’s performance on field sobriety tests, even though the affidavit contained technical acronyms that were undefined in the affidavit. The affidavit also withstood D’s other challenges, including that the affidavit failed to explain the nature or significance of the tests and was silent regarding officer’s experience in DWI cases. “[E]ven if we assume that the magistrate did not understand [officer’s] acronyms or know about the tests, the affidavit still informed the magistrate in plain language that [D] showed 15 combined clues of intoxication on the tests. . . . Finally, although the affidavit might have been more complete if it had detailed [officer’s] experience in DWI cases, we hold that such information was not required[.]”

Somers v. State, No. 10-09-00387-CR, 2010 WL 4813681 (Tex.App.—Waco 11/24/10)

Results of EMIT test for drugs were unreliable unless accompanied by a positive confirmation test and, thus, inadmissible. “[T]he EMIT test was positive for cocaine, but the confirmation GC test was negative. . . . The trial court did not abuse its discretion in excluding the test results.” The State did not withhold evidence in violation of Brady by relying on two separate drug testing methods, even though “[t]he DPS scientists agreed with [toxicologist’s] testimony that the failure to properly preserve the blood sample could have contributed to the negative GC test.” In finding no Brady violation, the State satisfied its obligation to provide D with scientists’ analysis prior to trial.

Victim’s statement of “whatever” in response to her employer’s decision to fire her for failing a drug test was not an admission of drug use and, thus, did not constitute a statement against interest for purposes of hearsay.

State’s closing argument during sentencing to the effect that D would serve merely a fraction of the sentence he received did not result in reversible error. “[Earlier in the proceeding,] [t]he State noted [to the jury] that [D] might not receive parole. . . . [However,] [t]he State later argued: ‘Now on these facts, with his history, you would certainly be within your rights to go back in this jury room and return the maximum sentence. That is a lot of time. He’ll do ten years of that. He’ll be a young man when he gets out.’ [D] objected that it was unknown if he would receive parole at that time. The trial court overruled the objection.”

May 9, 2011 SDR

Vol. XXVI, No. 13: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Fifth Circuit

Sossamon v. Texas, 563 U.S. ___, 08-1438 (4/20/11)

Affirmed: Thomas (6-2); Sotomayor dissented w/Breyer

Facts: Texas inmate Harvey Sossamon sued the state of Texas and various state officials in their official and individual capacities in a Texas federal district court. In part, he argued he was denied access to the prison’s chapel and religious services in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court dismissed the claim.

The Court of Appeals for the Fifth Circuit held that Sossamon could not sue Texas officials in their individual capacities under the RLUIPA. The court reasoned that because the Act was passed pursuant to Congress’ Spending Power and not its Fourteenth Amendment Power, it did not create a cause of action for damages against state officials sued in their individual capacities.

Question: Under the RLUIPA, can a person sue a state official in his individual capacity for damages?

Conclusion: No. “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.” Justice Sonia Sotomayor filed a dissenting opinion joined by Justice Stephen J. Breyer. “Our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief,” she argued. “By adopting a contrary reading of the term, the majority severely undermines the ‘broad protection of religious exercise’ Congress intended the statute to provide.”

Summaries by Oyez. For a list of issues pending before the Court, click here.

FIFTH CIRCUIT

United States v. Cashaw, 625 F.3d 271 (5th Cir. 2010).

District court did not err in denying minor-role adjustment, under USSG § 3B1.2, to defendant sentenced as a “career offender” under the Guidelines. The only Chapter Three adjustment permitted for career offenders is the adjustment for acceptance of responsibility under USSG § 3E1.1. Thus, career offenders are categorically ineligible for mitigating role reductions under USSG § 3B1.2.

United States v. Cruz-Rodriguez, 625 F.3d 274 (5th Cir. 2010).

District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); although defendant’s prior California state conviction for making criminal threats (in violation of Calif. Penal Code § 422) was not a qualifying “crime of violence” conviction, defendant’s prior California state conviction for willful infliction of corporal injury (in violation of Calif. Penal Code § 273.5) was a qualifying “crime of violence” under § 2L1.2’s residual “crime of violence” definition.

United States v. Allen, 625 F.3d 380 (5th Cir. 2010).

District court did not reversibly err in denying defendant’s motion to suppress evidence (child pornography) seized pursuant to a search warrant; although the search warrant was not sufficiently particularized and although the attachment detailing the items to be seized was not incorporated by reference in the warrant, the fruits of the search were admissible under the good-faith exception to the exclusionary rule. Under the analysis of Herring v. United States, 129 S. Ct. 695 (2009), the particularity defects in the warrant did not merit application of the exclusionary rule. Furthermore, the information in the search warrant affidavit was not stale (though it was 18 months old when the warrant was issued).

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010).

(1) In prosecution for possession and receipt of child pornography, defendant was not impermissibly tried beyond the 70 days prescribed by the Speedy Trial Act (STA); the district court satisfied the STA’s reasons requirement for an “ends of justice” continuance by stating its reasons for the continuance and by stating that those reasons were in the district court’s mind when it granted the continuance. Moreover, although the first continuance was open-ended and did not specify a trial date, a district court may decide to continue a trial indefinitely when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of an otherwise justified continuance. Finally, a second continuance, granted at the behest of the government based on the unavailability of a witness, likewise resulted in excludable time under the STA. Moreover, the requirement to set out ends-of-justice findings did not apply because the continuance was granted under 18 U.S.C. § 3161(h)(3) based on the “absence or unavailability of … an essential witness” and was not granted under 18 U.S.C. § 3161(h)(7).

(2) District court did not err in admitting images of putative child pornography retrieved from defendant’s computer, notwithstanding the fact that no expert testified that these were unaltered images of actual minors actually engaged in the conduct depicted. The Fifth Circuit has held (as have other circuits) that the question of whether images depict actual minors may be decided by lay jurors (or judges) without expert testimony. This case law compelled the conclusion that there was no authentication problem barring admission of the images, especially in the absence of any evidence that the images were not of actual children or that the state of technology is such that the images could have been of “virtual” children.

(3) District court did not err in denying defendant’s motion to dismiss the indictment for failure to receive a fair trial; the alleged pornography was, at all times, “reasonably available” for inspection by the defense, as required by 18 U.S.C. § 3509(m)(2). Defendant had full access to the pornography exhibits and could have done all the forensic tests that he allegedly was prevented from doing. Any concerns about prosecution of a defense expert for possession of child pornography could have been allayed by obtaining a protective order. Finally, defendant did not identify any expert he wished to consult but was prohibited from doing so.

(4) District court did not err in finding that the government’s destruction of defendant’s computer (done after the course of civil forfeiture proceedings) was not done in bad faith. Even though defendant indicated that he intended to contest the forfeiture, and even though the government was negligent in failing to provide defendant with adequate notice of the forfeiture proceedings, there was no evidence that the destruction of the computer was done to impede defendant’s defense in the criminal case. Moreover, it appears highly likely that all relevant evidence was preserved in the forensic images of the working hard drives of defendant’s computers.

COURT OF CRIMINAL APPEALS

Direct Appeal from Cameron County

Ex parte Gutierrez, __S.W.3d__ (Tex.Crim.App. No. AP-76,406, 5/4/11)

Affirmed: Cochran (8-0)

Appellant was convicted of capital murder and sentenced to death for his participation in the robbery and murder of eighty-five-year-old Escolastica Harrison. At the time of Harrison’s murder, she kept about $600,000 cash in her home. Appellant raises five issues on appeal. The first relates to the denial of his motion for counsel; the rest relate to the denial of the motion for DNA testing. CCA holds as follows: (1) Appellant is not entitled to appointed counsel because “reasonable grounds” do not exist for the filing of a motion for post-conviction DNA testing; (2) Appellant’s second issue is without merit because Appellant was “at fault” in not seeking DNA testing at trial; (3) Appellant has not shown that “the single loose hair” that he would like to have tested currently exists or could be delivered to the convicting court; (4) The trial judge acted within his discretion in finding that identity was not and is not an issue in this case; (5) Appellant has failed to establish, by a preponderance of evidence that he would not have been convicted of capital murder if exculpatory results had been obtained through DNA testing.

In sum, granting DNA testing in this case would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder.

Application for Writ of Habeas Corpus from Green County

Ex parte Evans, __S.W.3d__ (Tex.Crim.App. No. AP-76,445, 5/4/11)

Granted: Cochran (8-0); Keller concurred

Applicant contends that the Texas Department of Criminal Justice-Parole Division (TDCJ) improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the record, the habeas judge entered findings that Applicant had not been convicted of a sex offense and that his conviction for Injury to a Child did not involve evidence of sexual abuse. The habeas judge further found that Applicant was not afforded constitutional due process before the sex-offender conditions were imposed. The judge recommended that CCA grant relief. CCA agrees with the habeas judge that under Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009), aff’d in part, 607 F.3d 392 (5th Cir. 2010), Applicant is entitled to immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole.

State’s PDR from Harris County

Ex parte Garza, __S.W.3d__ (Tex.Crim.App. No. PD-0381-09, 5/4/11)

Affirmed: Price (6-2); Keller dissented w/Cochran

After the jury was empanelled and sworn but before trial commenced in this misdemeanor DWI case, one juror became at least temporarily indisposed and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over Appellant’s objection. When the case was reset, Appellant filed a pre-trial application for writ of habeas corpus arguing that because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief, but COA reversed and remanded, presumably so that the convicting court might dismiss the information against Appellant.

CCA granted the State’s PDR to consider, inter alia, whether COA erred to hold that the trial court should not have granted the mistrial without first exploring the option of proceeding to trial with only five jurors, Appellant having expressed at least a tentative willingness to waive his constitutional right to a full complement of six. CCA rejects the State’s arguments that there was manifest necessity for a mistrial. Under circumstances in which Appellant’s counsel at least suggested a willingness to proceed with less than a full complement of jurors, the failure of the trial court even to explore that option cannot be attributed to Appellant, whether or not he obtained an express ruling on his suggested alternative or actually executed a formal waiver.

State’s PDR from Lubbock County

Meekins v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0261-10, 5/4/11)

Reversed; Affirmed: Cochran (7-1); Keller concurred; Johnson concurred; Meyers dissented w/ Price

An officer stopped Appellant for a traffic offense and, during that stop, asked if he could search the car. In Appellant’s pocket, officer found a pill bottle containing marijuana. Appellant filed a motion to suppress the evidence, arguing that he did not voluntarily consent to the search of his car. The trial judge denied the motion and Appellant pled guilty to possession of marijuana. COA reversed.

While the audio recording of officer and Appellant’s interaction is not of high quality, careful listening would support an implied finding that appellant replied “Yes” to officer’s sixth and final request to search Appellant’s car. At a minimum, the recording fails to clearly rebut the officer’s testimony that Appellant said, “Yes.” But even if the trial judge concluded that Appellant said, “I guess,” that phrase could reasonably be interpreted as a positive response, a colloquial equivalent of “Yes.” Indeed, the Texas Supreme Court has held that a response of “I guess so” to an officer’s request to search, combined with other circumstances, supported the finding of voluntary consent.

Regardless of whether Appellant said “Yes” or “I guess,” the trial judge was also required to decide what an objectively reasonable person standing in the arresting officer’s shoes would conclude that response meant. Both officer’s and Appellant’s actions immediately after the response supports the trial judge’s implicit finding that Appellant intended to consent. While Appellant’s response of “Yes” or “I guess” may be open to interpretation, there can be little doubt that officer believed Appellant consented because he immediately asked Appellant to step out of the car so that he could search it without difficulty. If Appellant intended to refuse consent, it seems reasonable that he would have objected, complained, or refused to get out of his car. Instead, he readily complied.

State’s PDR from Hale County

Griego v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1226-10, 5/4/11)

Affirmed: Per Curiam (8-0)

A jury convicted Appellant of evading arrest or detention, and assessed punishment at confinement of 10 years. COA found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Additionally, COA remanded the case for a new trial having determined the evidence was factually insufficient to prove Appellant evaded arrest or detention.

The State contends, among other things, that the case should be remanded to COA in light of CCA’s recent opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), in which CCA overruled Clewis v. State and set aside its factual sufficiency standard of review, holding that the Jackson v. Virginia standard for legal sufficiency is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” In the instant case, COA did not have the benefit of Brooks. CCA remands this case for reconsideration.

Appellant’s PDR Granted from Travis County

10-1547 Dustin Doan Theft

COA erred in holding that the Brazos County Attorney and the Travis County Attorney were not the “same parties” for collateral estoppel purposes.

Appellant’s PDR Granted from El Paso County

10-1675 Abraham Cavazos Murder

1. COA erred when it held manslaughter was not a lesser-included offense of the charged murder.

2. COA erred when it held the trial court did not err by denying Appellant’s request to instruct the jury on manslaughter.

State’s PDR Granted from Smith County

11-0230 Charles Nieto Murder

1. Does the fact that a venireperson shares the same last name as a known criminal family constitute a racially neutral reason for a prosecutor to exercise a peremptory strike? (RR III: 15-17)

2. Does the fact that a venireperson is noted to be “glaring” at a prosecutor during voir dire constitute a racially neutral reason for a peremptory strike? (RR III: 15-17)

3. Did the 1st Court of Appeals fail to consider the “entire record of voir dire” where it did not review the record regarding the prosecutor’s racially neutral reasons for striking four other minority venire persons. Nieto, 2010 Tex. App. LEXIS 9953 * 12-18

Appellant’s PDR Granted from Dallas County

11-0312 Ronnie Tienda, Jr. Murder

COA erred in finding that it was not an abuse of discretion to admit, over objection, MySpace evidence without proper authentication.

State’s PDR Granted from Ector County

11-0435 Joshua Lee Goad Burglary

Does a trial court abuse its discretion by refusing to submit a lesser included instruction that is only “supported” by unrelated hearsay admitted through the victim?

For a list of issues pending before the court, click here.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Kelly v. State, 331 S.W.3d 541 (Tex.App.-Houston [14 Dist] 2011).

Although officer stopped D for no front license plate, officer’s questioning of D about whether he possessed narcotics was reasonably related to the stop, in part because of officer’s knowledge of D’s background with narcotics. “Because [officer’s] suspicions were aroused, in part, by [D’s] furtive movements inside the vehicle and [D’s] nervousness after being stopped, [officer’s] questioning about whether [D] possessed narcotics was reasonably related to the traffic stop investigation … especially given the fact that [officer] learned of [D’s] criminal background involving narcotics and asked [D] about this information….”

Glenn v. State, No. 11-09-00099-CR, 2011 WL 322451 (Tex.App.-Eastland Jan 27, 2011).

The following exchange was deemed sufficient to constitute D’s consent to search. In response to officer’s request for permission to search the vehicle, D asked the officer: “You want to have a look inside?” Then D asked the officer: “You want me to open the trunk?”

Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR, 2011 WL 339213 (Tex.App.-Houston [1 Dist] Jan 31, 2011).

Lack of specific dates in search warrant affidavit was not fatal to search warrant because the affidavit “includes several direct and indirect references to the timing of the controlled buy. First, [officer] described his contact with the first confidential informant as having occurred ‘recently.’… The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring ‘after’ [officer] ‘recently’ met with the first confidential informant.”

Sosa v. State, No. 06-10-00161-CR, 2011 WL 346215 (Tex.App.-Texarkana Feb 4, 2011).

The following insufficient to give rise to RS: D was present just outside a storage facility after its normal business hours, D failed to pass through the gate in thirty or forty seconds of observation, and the storage facility is occasionally broken into. “‘The fact that a car is parked in close proximity to a business that is [closed], is not, in and of itself, suspicious; instead, it is only a factor to consider in deciding whether there is reasonable suspicion.’… In addition, the time of day is not sufficient…. All the facts indicate is that [D] was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into.”

May 2011 Complete Issue – PDF Download

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Features

18 | Slate of Candidates and Proposed Changes to the TCDLA Bylaws
20 | FAQs About 46B Competency – By Jeanette Kinard
26 | A History Mystery: Who Shot J. W.? – By Chuck Lanehart
44 | Defendant’s Written Objection to Admissibility of Extraneous Offenses, Request for Procedural Determination by Trial Court with Findings of Fact and Conclusions of Law, and for Limiting Instruction – By Jim Lane & David Richards

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

Departments
5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
35 | Significant Decisions Report

FAQs about 46B Competency

When should you ask for a competency evaluation?

Competency should be addressed at the earliest possible stage of the proceedings where there is evidence1 to “suggest” that competency might be lacking.2 If not suggested by defense counsel, a competency examination may be requested by the prosecution or the court on its own motion.3 Once the request has been made, the court will conduct an informal inquiry to determine if there is “some evidence” the defendant is incompetent to stand trial.4

If the issue of competency was not apparent before trial, it may nonetheless be raised subsequent to the trial on the merits.5 More specifically, it may be raised at any time before the “sentence is pronounced.”6 If raised after the return of the verdict, “the court shall make the determination as soon as reasonably possible after the return.”7 However, the issue of competency is moot if a verdict of not guilty is returned.8

It is advantageous to defense counsel and the client to raise the competency issue as soon as possible. First, the prosecution may dismiss the charges against the defendant, regardless of a finding of incompetency.9 Once dismissed, if the court feels there is evidence to support a finding of incompetency, the court may transfer the defendant to civil commitment proceedings (more in-depth discussion to follow).10 Second, a client deemed incompetent might be more likely to take medication in order to become competent and not continue to languish in jail.

Furthermore, once the suggestion of incompetency is made by either party and an informal inquiry has been held by the court supporting incompetency, the court orders an expert examination to make the final determination as to the defendant’s competency to stand trial.11 While a jury trial, to determine a defendant’s incompetency to stand trial is not required; it may nevertheless be requested by either party or the court upon its own motion.12 However, an interlocutory appeal, as to the defendant’s incompetency to stand trial is barred by the rules.13

Who can perform a competency evaluation?

The court may appoint an expert when there has been a suggestion as to the defendant’s incompetency, either to examine the defendant or testify.14 However, if there is evidence to support a finding of incompetency, the court must appoint an expert to examine or testify as to the defendant’s incompetence.15 This expert may not also be involved in the defendant’s treatment.16 If there exists evidence to support a finding of incompetency, the court must appoint an expert, whether it be a psychologist or psychiatrist employed by the local mental health or retardation authority;17 an expert chosen by the defendant;18 or another appointed by the court.19

The code specifically delineates the qualifications the aforementioned experts must have.20 They include being a physician or psychologist with a doctoral degree, licensed in this state, and certification by the American Board of Psychiatry and Neurology “with added or special qualifications in forensic psychiatry” or American Board of Professional Psychology in forensic psychology.21 If the expert is not board certified, then he or she must have “at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations” or at least 5 years’ experience before January 1, 2004, in performing criminal forensic evaluations for courts and at least 8 hours of continuing education relating to forensic evaluations (completed in the 12 months preceding the appointment).22 In addition, regardless of any board certification, the expert must have completed at least 6 hours of continuing education courses in forensic psychiatry or psychology in the preceding 24 months.23 If an expert does not fit into the criteria above, as long as there are some exigent circumstances based on the expert’s specialized training or experience he may qualify.24 As a practical matter, most counties have an approved list of PhD psychologists and MD psychiatrists that they will appoint to do a competency examination.

How is competency different from Not Guilty by Reason of Insanity (NGRI)?

Competency is a determination as to the defendant’s ability to stand trial. This evaluation focuses on the defendant’s present ability to consult with their attorney and understand the proceedings against them.25 Competency is not a defense or excuse for the crime committed; however, it acts as a stay to the proceedings.26

Insanity is an affirmative defense that acts as an acquittal for the defendant.27 The defense is focused on the mental state of the defendant at the time of the incident.28 In addition, the insanity defense uses the term “mental disease or defect” and “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”29

Where will my client go if found incompetent?

Once a determination of incompetency has been made by the expert, assuming the determination is uncontested,30 the code lists two options: commitment to a facility or release on bail to an outpatient facility.

Release on bail is subject to many conditions and focuses on ensuring safety for the community and effective mental health treatment for the defendant, with the specific objective that the client regain competency (and not necessarily be cured of the mental illness).31 Bail is available for felony cases, but is mandated for misdemeanor cases—where the defendant “may be safely treated on an outpatient basis and there is room available at an outpatient facility.”32 The treatment at the outpatient facility will not exceed 120 days.33

The court will not rest on counsel or defendant’s word alone as to the defendant’s ability and willingness to complete an outpatient treatment program. The court must receive a “comprehensive treatment plan” that represents the treatment for competency restoration and identifies the treatment provider.34 In addition, the court can require the defendant’s outpatient treatment to be administered by a community center or any other entity that provides outpatient restoration treatment.35 Also, the court can prescribe the care or treatment to be utilized, including medication.36

While outpatient treatment is desirable, there is limited space, and many persons who are incompetent to be tried will probably not fit the criteria for outpatient care. Also, if the defendant is unsuccessful at an outpatient treatment facility, it only delays an admission into a hospital. As the outpatient treatment order of the court will not exceed 120 days, neither will the commitment to a facility.37 However, there is a one-time extension of 60 days for a committed defendant who has not regained competency.38

Can they go to any psychiatric hospital?

No. The defendant will be ordered to a forensic facility based on his or her offense. For non-violent offenses,39 including assault, and offenses where an “affirmative finding” of the use or exhibit of a deadly weapon40 has not been made, the defendant will be committed to a “mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.41

Violent offenses and any offense in which a deadly weapon was used or exhibited will see the defendant being committed to a “maximum security unit of any facility designated by the Department” of State Health Services, “agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.”42 For instance, the North Texas State Hospital, Vernon campus, currently serves as the main mental health facility in Texas for violent offenders.

Can any doctor treat them?

The facility in which the defendant was committed or the outpatient treatment program, if the defendant was released on bail, will treat the defendant.43 Other treatment providers are not necessarily provided for in the code, but remain an option.44

Can my client bond out of jail if there is a writ pending?

The writ pending would be the order of commitment to a mental health facility or residential care facility based upon the determination that the defendant is incompetent to stand trial.45 Given the limited space of state hospitals, writs can remain pending for up to 120 days or more. The simplest answer is that your client cannot bond out of jail if there is a writ pending. The code only presents two options upon a finding of incompetency: commitment or release on bail.46 Once the court has gone the route of commitment, release on bail is no longer an option. In any event, it would behoove counsel in any county to inquire into their local policy respecting this issue.

How long will they wait in jail?

Texas is the second most populous state in the country, but almost dead last in terms of mental health funding—49th.47 In 2005, there were 12.1 psychiatric beds per 100,000 people.48 To meet the minimum standards of treatment, there would need to be more than 11,000 additional beds.49 The Texas State Department of Health Services intends to cut an additional 183 psychiatric beds, or 12 percent of total capacity, when the legislature convenes in 2011.50 Therefore, depending on your county, the wait could be anywhere from 30 days to 120 days or more.

Are any outpatient programs available?

If your client is released on bail based upon a determination that he or she is incompetent to stand trial, the court will require the defendant to participate in an outpatient treatment program.51 The code authorizes the outpatient treatment program to be administered by either a community center or any other entity “that provides outpatient competency restoration services.”52

Most likely, the outpatient treatment program will be administered by the local mental health/mental retardation authority. For instance, in Austin the authority is Austin Travis County Integral Care, and they operate a Community Competency Restoration Program (CCRP).53

What if my client “clears up” while waiting for a bed at a forensic hospital?

Due to the long wait for a state hospital bed in any county in Texas, and the lack of outpatient programs that will fit most client’s needs, it is possible that a defendant will have regained competency while in jail. However, this result is extremely unlikely if the defendant is incarcerated and not receiving or taking medication. The code allows for the redetermination of competency at any time.54 The defense, prosecution, or the court on its own motion may make an inquiry into restoration,55 as well as moving the court to determine that the defendant has been restored to competency.56 Affidavits may accompany the restoration motion,57 in addition to a request to appoint a “disinterested” expert.58

In addition to the parties and the court making an inquiry into restoration, a mental health or residential care facility and an outpatient treatment provider may do the same.59 They may also request the court to determine that the defendant has been restored to competency, along with an accompanying written statement of their opinion of the defendant’s competency.60

If both parties and the court agree that the defendant has been restored to competency, the criminal court proceedings will resume.61 However, if contested, the court will hold a hearing, either on the request of the head of a facility or outpatient treatment provider,62 and on its own motion or on motion by either party if “any supporting material establishes good reason to believe the defendant may have been restored to competency.”63 In addition, the court or either counsel may make a motion to have a jury determine the outcome of the hearing.64 Lastly, incompetency is presumed at the hearing,65 unless the head of the facility or outpatient treatment provider has provided an opinion that the defendant has regained competency.66

Thereafter, if the redetermination of the defendant’s competency has been successful, the criminal proceedings are resumed.67 However, if a defendant remains incompetent to stand trial, he or she will continue their commitment at a facility or outpatient treatment program.68 Once a redetermination of competency has been made and the defendant remains incompetent, any subsequent redetermination of competency motion or request filed before the 91st day after the date of a previous redetermination must be accompanied by an explanation supporting the belief that the defendant has regained competency.69

What if my client will not take medication while in jail or in commitment?

Often, depending on the severity of your client’s mental illness, your client will not regain competency without medication. You will have a difficult time seeking an order for a re-evaluation if your client refuses medication. Those clients who have been required to take psychoactive medications as a result of their continuity of care plan with an inpatient or outpatient treatment provider, and have been found to not meet the criteria of court-ordered administration of psychoactive medications under the Health and Safety Code,70 may be eligible for court-ordered medications under the Criminal Code.71 Although, a client released on bail would not be required to have the hearing under the aforementioned Health & Safety Code.72

Once a hearing under the Health & Safety Code has found the client to not be a danger to self or others, then the court will make its own findings, by clear and convincing evidence, that the medication is medically appropriate (weighing harm versus benefit); the state has a clear and compelling interest in defendant obtaining competency; no other less-invasive means is available; and the prescribed medication will not undermine defendant’s use of defensive theories at trial.73 Lastly, the court will require the testimony of two physicians—one who prescribed the medication (either correctional facility or outpatient treatment program) and another who is not involved in the proceedings against the defendant.74

What if my client remains incompetent throughout the proceedings against them?

If your client remains incompetent, whether they have been committed or released on bail to an outpatient treatment provider, he or she cannot be ordered to participate in either of those two options for a period that exceeds the maximum term provided by law for the offense charged.75 Any additional period of confinement must be pursuant to civil commitment proceedings.76 Civil commitment proceedings depend on whether the charges have been dismissed.77

If your client is a person with a mental illness, the court must conduct a hearing to determine whether court-ordered mental health services are appropriate.78 The criminal court where the charges remain pending will conduct the civil commitment proceedings pursuant to the Health and Safety Code.79 To receive mental health services by court order, the court must find by clear and convincing evidence: that your client is mentally ill; and that as a result of their mental illness is likely to cause serious harm to self or others, or “is suffering severe and abnormal mental, emotional, or physical distress” that prevents the person from living independently and making a rational decision for treatment.80

If court-ordered mental health services are appropriate, the court will either make a temporary81 or extended82 mental health services determination. Temporary mental health services will only be ordered if there is clear and convincing evidence that mental health services are available for the client; the illness is “severe and persistent”; the client will continue to suffer abnormal stress if not treated; the client shows an inability to function independently without court-ordered mental health services; and the client is unable “to participate in outpatient treatment services effectively and voluntarily.”83 The temporary court-ordered mental health services may be inpatient or outpatient, and will not exceed 90 days.84

While temporary court-ordered mental health services seem arduous, extended is that much more. In addition to meeting the basic criteria established in paragraph two and three of this section, the client’s condition must be expected to continue for more than 90 days and the client has received court-ordered inpatient mental health services “for at least 60 consecutive days during the preceding 12 months.”85 But, this should often be the case under 46B, given that the defendant has likely just received 180 days of inpatient treatment, yet remains incompetent to stand trial.

An extended civil commitment will not last longer or shorter than 12 months.86

Finally, if the charges have been dismissed and there is evidence to support a finding of your client’s mental illness or retardation, the court must “enter an order transferring the defendant to the appropriate court for civil commitment proceedings.”87

Special thanks to Ryan Mosler Esq. and Brian D. Shannon, Professor of Law, Texas Tech.

For more information on any of the issues raised in this article, please consult, Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (2008), available at http://www.namitexas.org/resources/nami_tcp_guide2008.pdf.

Notes

1. Tex. Code of Crim. Proc. § 46B.003 (a) (2010), evidence that the person cannot consult with attorney or understand the proceedings against them.

2. Id. § 46B.004 (a).

3. Id. at (b).

4. Id. at (c).

5. Id., § 46B.005 (d).

6. Id.

7. Id.

8. Id.

9. Id., § 46B.004 (e).

10. Id. See Tex. Code of Crim. Proc. § 46B.151 (2010) for civil commitment proceedings.

11. Id., § 46B.005 (a).

12. Id., § 46B.005 (c).

13. Id., § 46B.011.

14. Id., § 46B.021 (a).

15. Id. at (b).

16. Id. at (c).

17. Id. at (e).

18. Id. at (f).

19. Id. at (a).

20. Id. § 46B.022

21. Tex. Code of Crim. Proc. § 46B.022(a) (2010).

22. Id.

23. Id. at (b).

24. Id. at (c).

25. Id., § 46B.003(a).

26. Id., § 46B.004(d).

27. Tex. Code of Crim. Proc. § 46C.155(a) (2010).

28. Tex. Penal Code § 8.01(a) (2010).

29. Id. at (b).

30. Id., § 46B.054.

31. Id., § 46B.072(a).

32. Id. at (1) & (2).

33. Id. at (b).

34. Id. at (c).

35. Id. at (d).

36. Id.

37. Id., § 46B.073(b).

38. Id. § 46B.080.

39. Any offense not listed in Tex. Code of Crim. Proc. § 17.032(a) (2010) except (a)(6).

40. Tex. Code of Crim. Proc. § 42.12 3g(a)(2) (2010).

41. Tex. Code of Crim. Proc. § 46B.073(d) (2010).

42. Id. at (c).

43. Id., § 46B.077.

44. Id., § 46B.111, for the appointment of disinterested experts; and id., § 46B.086 (d), for testimony of a physician not involved in the defendant’s proceedings for use in the determination of court-ordered medications.

45. Id., § 46B.073.

46. Id., § 46B.071.

47. L. Aron, R. Honberg, K. Duckworth et al., Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness 143 (2009), available at http://www.nami.org (follow “Grading the States” hyperlink, then follow “Full Report” hyperlink).

48. E. Torrey, K. Entsminger, J. Geller et al., The Shortage of Public Hospital Beds for Mentally Ill Persons 16 (2006) http://nami.beardog.net/AdvHTML_Upload/TACShortageofBedsStudywithtables.pdf .

49. See supra note 47, at 18.

50. Lillian Ortiz, “Mental health cuts could be disastrous,” Houston Chronicle, http://www.chron.com/disp/story.mpl/editorial/outlook/7123337.html (last visited Oct. 11, 2010).

51. Tex. Code of Crim. Proc. § 46B.072 (2010).

52. Id. at (d)(1).

53. Austin Travis County Integral Care, http://www.integralcare.org/?nd=ccrp (last visited Oct. 11, 2010).

54. Tex. Code of Crim. Proc. § 46B.108(a) (2010).

55. Id. at (b).

56. Id § 46B.110.

57. Id. at (b).

58. Id § 46B.111.

59. Id § 46B.108(b).

60. Id., § 46B.109.

61. Id., § 46B.112.

62. Id., § 46B.113 (a).

63. Id. at (b).

64. Id. at (c).

65. Id. at (e) and thereafter, incompetency is presumed at the hearing unless refuted by a preponderance of the evidence.

66. Id. at (d) and thereafter, competency is presumed at the hearing unless refuted by a preponderance of the evidence.

67. Id., § 46B.116.

68. Id., § 46B.117.

69. Id., § 46B.115 (a).

70. Tex. Health & Safety Code § 574.106 (a) (2010); and id. at (a-1), is under court order to receive inpatient mental health services, and clear and convincing evidence, that the patient lacks capacity to make own decision regarding medication and the proposed medication is in the best interest of the patient; and the patient presents a danger to self or others in the inpatient mental health or correctional facility.

71. Id., § 46B.086.

72. Id. at (a)(4).

73. Id. at (e).

74. Id. at (d); see, generally, Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States St. Mary’s L.J. (2010), http://www.stmaryslawjournal.org/pdfs/Shannon_II.pdf (discussing the evolution of Texas’ approach to court-ordered medications).

75. Id., § 46B.0095, except if charged with a misdemeanor and ordered to participate in an outpatient treatment program, the maximum period is two years.

76. Id. at (b).

77. Id., § 46B.102, where charges remain pending; and id., § 46B.151, where charges have been dismissed.

78. Id., § 46B.102(a).

79. Tex. Health & Safety Code § 574.034–574.035 (2010).

80. Id., § 574.034(a); and id., § 574.035 (a).

81. Id. § 574.034.

82. Id., § 574.035.

83. Id., § 574.034(b).

84. Id. at (g).

85. Id., § 574.035(3) & (4).

86. Id. at (h).

87. Id., § 574.151(b).

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. Jeanette has a Bachelor’s Degree from the University of Texas at Austin and a Law Degree from the University of Houston in Houston. A frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system, Jeanette is a member of the State Bar of Texas, Austin Criminal Defense Lawyers Association (President, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association. She serves on the Mayor’s Mental Health Task Force, the Texas Continuity of Care Task Force, and Travis County MH Jail Diversion Committee and is a Board Member for Capacity for Justice. Jeanette, a partner at Kinard & Kinard in Austin for 17 years, is editor of Kinard’s DWI Manual. She served six years on the District 9 Grievance Committee (1992–98) and was formerly a prosecutor in Harris, Bell, and Travis counties. Jeanette is a frequent contributor to Voice for the Defense magazine.

A History Mystery: 
Who Shot J.W.?

J. W. Jarrott was a trail-blazing lawyer and a courageous advocate. As a tragic consequence, he became the first person murdered in the recorded history of the South Plains of Texas.1 In the tradition of Stephen F. Austin, Jarrott brought some of the first waves of settlers to a vast wasteland once known as the Great American Desert, becoming a hero to his friends and clients, and then a martyr. Yet his death remains an unsolved mystery, and it is a shame that Jarrott’s name has been all but forgotten.

James William Jarrott was born in 1861, the year Abraham Lincoln was inaugurated as president of the United States. He was commonly referred to in contemporary documents by his initials, “J. W.,” but he was affectionately called “Jim” by friends and family. A native of Hood County, Texas, he was formally educated at Add-Ran College.2 Jim was described as a man who showed “a commendable degree of cultivation, and is refined in his manners, small in stature, and of light figure; his action is quick, and his speech rather rapid.”

The single existing photograph of a young Jim Jarrott depicts him as rather plain, with odd features, but some historians have written that he was handsome. In 1886, he married 20-year-old Mollie D. Wylie of Thorp Spring, the daughter of a prominent pioneer ranching family in the Hood County area. She was a beautiful young lady, with high cheekbones and dark features. The Jarrotts first lived in Hood County, and then Parker County, where Jim was elected to the Texas Legislature at the age of 24.

But he spent just a short time as a lawmaker, moving on to Stephenville. There, Jim studied law, was admitted to the bar, and became Erath County Attorney. The wandering Jarrott family next made a brief attempt at ranching in Arizona before other opportunities beckoned. Meanwhile, Jim befriended a fellow former county attorney and state legislator named Charles Rogan, the new Texas Land Commissioner.

The Move to Lubbock

With land speculation in mind, the ambitious young attorney made an exploratory journey to the South Plains, and in early 1901 he decided to bring his wife and children to Lubbock, almost 300 miles west of their Hood County roots. The Jarrott family delayed their move until June, when school was out for their four young children, and took up temporary residence in the Nicolette Hotel on the courthouse square, as they began establishing themselves in Lubbock. It was a tiny community with fewer than 300 residents, but the area was booming with real estate deals happening everywhere.

In official documents, J. W. is first mentioned as one of the lawyers who elected H. C. Randolph of Hale County as “special judge” of the 64th District Court on September 1, 1901, along with pioneer Lubbock lawyers John R. McGee, J. J. Dillard, George R. Bean, and others. He also attended a March 31, 1902, Lubbock bar association meeting where a resolution was adopted lamenting the death of 50th District Court Judge S. I. Newton of Baylor County.

In just a few short months, the same association of lawyers would hold a memorial service in remembrance of a younger member of the bar, J. W. Jarrott.3

Opportunity Arises on the Llano Estacado

The flat, treeless plain Jim sought to develop was part of the Llano Estacado, so named by Spanish explorer Francisco Coronado some three centuries earlier. This semi-arid plateau was later described as the Great American Desert, wholly unfit for human habitation or cultivation. Today it is part of a region called the Great Plains, a land offering fertile soil and known as one of the finest agricultural regions anywhere in the world.

Though early settlers found little water in lakes or rivers here, the region sat atop the Ogallala Aquifer, one of the world’s largest underground water resources. Here, tall wooden windmills began dotting these windswept plains, drawing water from the earth for cattle and cattlemen. Farmers would soon draw from the same source to irrigate crops of fiber and grain.

At the beginning of the 20th century, this grassland could sell for less than a dollar an acre, and town lots in the village of Lubbock were trading hands for three bucks each. So, the South Plains of Texas was ripe for discovery by opportunists and colonists looking for cheap, abundant land. It was common for lawyers of the era to invest in real estate and to solicit clients for land deals.

But Jim had an angle, and a distinct advantage over others in the business of South Plains real estate speculation. With the encouragement of his friend, Land Commissioner Rogan, he paid to re-survey the area west of the unincorporated hamlet called Lubbock. Much of the land had been previously claimed or leased by nonresident cattle baron corporations from Chicago and elsewhere. Huge, unfenced ranches dominated the landscape, populated by corporate employees with job descriptions like cowboy, wrangler, and foreman.

The new survey revealed there was prairie land to be had from the State of Texas for 50 cents an acre, with four years to pay the debt, in the almost vacant, unorganized Texas counties of Hockley, Terry, and Cochran. Rogan proclaimed that the person who financed the survey, Jarrott, was to be given first claim to the land. This meant the existing ranchers in the area who were required to remove their cattle from the property could easily identify a young Lubbock lawyer, J. W. Jarrott, as an enemy.

Trouble was brewing on the broad West Texas horizon.

The Struggle to Settle the Land

In 1901, the Jarrotts filed for themselves and 24 other families under the 1895 Four-Section Act on a 100-section strip of public land extending from the western boundary of Lubbock County almost to the border of the Territory of New Mexico, a huge expanse of real estate. A hundred sections is roughly equivalent to a hundred square miles of land, an area greater than five times the size of the island of Manhattan. So, the diminutive nickname bestowed on the property, “The Strip,” was a bit of a misnomer.

The Strip did, however, properly describe the shape of the property, which extended some 60 miles in length, and less than two miles to five miles in width. The tent the Jarrott family pitched on their Hockley County claim was the only human habitation within a 30-mile radius, but friends from the east—Parker, Erath, and Hood counties—would soon follow.

The law required settlers to occupy and make improvements to the land. So, with small landowners feverishly stretching canvas and digging dugouts—and certain to soon build fences— the hostile ranching conglomerates became alarmed. Lined up against what they called “The Jarrott Gang” were ranchers from spreads with colorful names: the Mallet, Slaughter, L7, Jumbo, J. Cross, Osxheer, DOV, QIV, YellowHouse, XIT, K, Spade, TFW, Lazy S, Cros C, Flying D, 9R, and Fish.

Ranching interests labeled the newcomers “nesters” and took action. Their attorneys filed lawsuits and complaints against Jim and the other settlers. An Illinois corporation, the Lake-Tomb Cattle Company, spearheaded the ranchers’ litigation.

Jim zealously defended his clients’ rights to The Strip in far-flung South Plains courthouses and in the Texas Capitol at Austin, with Land Commissioner Rogan steadfastly taking the settlers’ side in the bitter litigation. By the summer of 1902, Jim had firmly established all of his clients and their families on the land.

But the controversy was about to get uglier, and bloody.

According to legend, when Jim filed his family claim on land in Hockley County, a man named Painthorse Hamilton complained that he had been cheated. Hamilton threatened Jim more than once, but there was no violence.4

An Ill-Fated Journey

On Wednesday, August 27, 1902,5 Jim departed from Lubbock in a wagon with provisions for John Doyle, an employee who was camping on the proposed site of the Jarrott residence, some 30 miles southwest of Lubbock. Jim had a choice of two roads to his destination. He chose the southern route, which midway through his journey offered a spot with two windmills for watering—known as the “Twin Sisters”—near present-day Ropesville, Texas.6

The journey would take the unarmed lawyer through the L7 Ranch, owned by his chief adversary, the Lake-Tomb Cattle Company.

Doyle expected his grocery delivery by Thursday, but when Jim failed to show, the hungry Doyle traveled by horse to Lubbock, taking the northern route. He arrived Friday night and went directly to the Nicolette Hotel to inform Mrs. Jarrott that his food and her husband were both missing.

She panicked, immediately fearing the worst. “Oh, he has been murdered!” she cried. Mollie Jarrott was right.

Saturday morning, Doyle and Lubbock pioneer merchant J. D. Caldwell traveled the southern road in search of Jim. At the Twin Sisters, the lawyer’s lifeless body was found lying in a stock tank on the L7 Ranch, property of the Lake-Tomb Cattle Company. He had been shot to death, probably on Wednesday, and scavengers had gnawed on the remains.7 Jim’s wagon was nearby, his harness was hanging in a windmill tower, and his horses were found hobbled, grazing on the prairie grass.

Jim Jarrott was only 41 years old.

Investigation and Indictments

Lubbock County Sheriff Barrett Penny’s investigation was hampered because of rain on Thursday. Nevertheless, the lawman made notes in an attempt to reconstruct the crime:

A man standing by the tower shot him with a Winchester rifle. This shot seems to have caused the team to whirl suddenly to the left as shown by wagon tracks. Blood was found on the right rear wheel and Mr. Jarrott was either thrown or jumped out at the first shot. Traces of blood and tracks were found leading to the lake in which he was found. Two empty shells were found near the water tower and two near the lake, indicating that at least four shots were fired, the last and perhaps the fatal one, taking effect in the small of his back. It is believed Mr. Jarrott ran into the lake and was chased by the assassin . . . A reward of $1000 has been offered for the arrest and conviction of the assassin or assassins.

The murder polarized the West Texas community. Townsfolk and farmers in the area blamed the ranchers, accusing them of hiring a professional gunman to kill Jim in order to frighten away The Strip’s settlers. The ranching interests claimed to be appalled at the deed, but rumors were soon spread that Jim’s wife Mollie may have been involved.

The widow was summoned to testify before a grand jury investigating the murder. She hired a lawyer from her Hood County hometown, but she did not stand on any legal privilege, and gave the grand jurors a blistering lecture on her bleak situation and the unfairness of the inquisition. However, the offended Mollie was unable to shed much light on the case. The murder became the South Plains’ major unsolved mystery.

Prime suspect Painthorse Hamilton had an airtight alibi. He was in Portales, New Mexico, on the Wednesday Jim left Lubbock, well beyond traveling distance to have committed the crime within the supposed time frame.

The case went cold for more than a year.

Finally, in late 1903, murder indictments were handed down against four men with ties to Jim’s adversary, the Lake-Tomb Cattle Company: Ben Glaser, Morgan Bellows, B. F. Nix, and William Barrington. Barrington was accused as the shooter and the others as accomplices. In addition, Nix was charged with perjury.8 All were quickly released on bail supplied by prominent area ranchers Frank Wheelock, Van Sanders, W. T. Petty, and M. V. Brownfield.

Bail bondsman Wheelock would later become the first mayor of the City of Lubbock, in 1909,9 and a school in Lubbock was also named in his honor. Bail bondsman Sanders was a cousin of George Wolffarth, who would be the namesake of the misspelled City of Wolfforth, just west of Lubbock. And the City of Brownfield, 35 miles southwest of Lubbock in Terry County, was to be named in honor of bail bondsman M. V. Brownfield. Known as “Pap,” M. V. Brownfield would assume a much larger role in the Jarrott than that of a surety for a poor cowpoke.

During the grand jury investigation, Glaser testified that he had unharnessed Jim’s rig at the Twin Sisters that fateful Wednesday, hung the harness on the windmill, and then watered his horse. But he claimed he did not see the body.10 The four ranch hands indicted for Jim’s murder did not face trial in Lubbock County or elsewhere. Their cases were moved to Floyd County, 55 miles northeast of Lubbock, on a change of venue, and each case was eventually dismissed for lack of evidence.11

Again, the case went cold—this time for decades.

The Settlers, the Widow Jarrott, and Monroe Abernathy

Jim’s assassination failed to scare settlers off The Strip. “We became more intent and closely allied in our fight for survival,” wrote Mary Blankenship, who with her husband had staked a claim. “The name Jim Jarrott became a legend among us, and his martyrdom served to spur us on. We were determined not to pull up stakes and retreat back to the East.”

In years to come, Jim’s settlers and their descendants prospered. Some raised small herds of cattle, and others became farmers. They soon learned to grow valuable crops of cotton on this inhospitable prairie. The South Plains of Texas would become the largest contiguous cotton-growing region in the world.

Burdened with four children less than 15 years of age, Jim’s 36-year-old widow Mollie successfully developed the land that had cost her husband his life. She expanded the original Jarrott claim from 4 to 16 sections, naming the spread the Swastika Ranch,12 where she raised a prime herd of registered Hereford cattle.

In 1905, Mollie was remarried to Monroe G. Abernathy, a local real estate developer. The city of Abernathy was later named in honor of Mollie’s new husband.13 She began investing in business property in the fledgling town of Lubbock, eventually financing the construction of the J. C. Penney building, one of the largest of downtown commercial structures.

The couple led the promotion of the construction of the Santa Fe Railroad into Lubbock. The arrival of the railroad in 1909 immediately began to transform the small village into a thriving city. Mollie’s astute management of ranch and business holdings led to her reputation as Lubbock’s first pioneer businesswoman. In 1960, she died in Lubbock at the age of 94.

Mollie never lost her love for Jim Jarrott, and always honored his memory. Shortly before her death, she said in an interview: “I tell you the way I’ve always felt . . . [No person has] done as much for this country as Mr. Jarrott . . . He did more for the settlement of this country than anybody else who ever came here, and he lost his life for it.”

Deacon Jim Miller and the First Suspicious Confession

In 1909, an infamous outlaw and professional killer named James B. Miller was lynched along with three members of his gang by a mob of perhaps 40 men in Ada, Oklahoma. “Deacon Jim” Miller earned his nickname because he usually dressed the part, wearing a black hat and a long black frock coat. He pretended to be a pious, church-going man.

For 29 years, there seemed to be no connection between the 1909 Miller lynching and the 1902 Jarrott murder. Then in 1931, Lubbock lawyer and writer Max Coleman wrote a colorful yarn that tied Deacon Jim to Lawyer Jim, in the Frontier Times magazine.

In 1909 . . . Jim Miller was hanged by a mob. Just before being swung up he told Gib Abernathy, a cousin of [Monroe Abernathy] that he killed Jarrott, being paid the sum of $500 for so doing. He refused to say who paid him. He stated that in all his killings Jarrott was the only man he ever hated to kill. He said he was hid in the windmill tower when Jarrott drove up. He shot him twice, but not fatally. Jarrott plead with him to spare his life, but he told him that he was paid to do that deed, and that he would not fall down of his employer.

Among the problems with Miller’s supposed confession is that Gib Abernathy somehow forgot to tell anyone about it until 1914, five years after the fact. Coleman wrote that none of the Lubbock oldtimers ever believed the tale about Miller’s confession. There is no evidence that Monroe Abernathy had a relative known as “Gib,” but the Palo Pinto County Sheriff between 1914 and 1931 was named Gib Abernathy.

Another problem with the confession is that no one named Abernathy can be connected to the Miller lynching in news accounts of the era. No contemporary evidence exists that Miller made a confession related to Jim Jarrott or any other individual victim prior to his death, though the supposed confession has spawned much speculation among historians over the years. The story is probably a legend recounted by Max Coleman—or pure fiction invented by Coleman.

Deacon Jim Miller and the Second Suspicious Confession

Seemingly out of the blue, in March of 1933, John “Jack” Abernathy wrote a letter to his cousin Monroe Abernathy, who had married Jim’s widow, Mollie.14 In Jack’s startling message, he informed his family members of the Miller confession.15 Jack Abernathy, a hunting buddy of iconic United States President Theodore Roosevelt, was the U.S. Marshall for Oklahoma at the time of the Miller lynching. He wrote that he had arrested Miller and transported him to Ada shortly before the outlaw was hanged. On the train ride to Ada, Miller discussed his life as a hired gun, and the marshal asked the deacon which of his many victims16 was the hardest to kill.

“I had to shoot Jarrott five times before I ever killed him,” Miller answered. The outlaw confirmed his victim was J. W. Jarrott of Lubbock, and recounted his memory of the attack. Jack’s account of Miller’s confession is similar to Coleman’s published article written two years earlier, though in Coleman’s account it is clear that Miller said he regretted killing Jim, and not just because he was “the hardest to kill.”

On March 27, 1933—four days after Jack’s letter was dated—Monroe Abernathy wrote a letter to a San Antonio judge, and the letter supported his cousin’s account of Miller’s confession. Monroe claimed to have been involved in the discovery of Jim’s body, and wrote that he took part in the 1902 investigation of the original murder scene, which he said matched Miller’s description of the crime, as confessed to Jack Abernathy. Yet there is no evidence that Monroe Abernathy—the 1903 Lubbock County Justice of the Peace—participated in the Jarrott case except to set bail for the four original murder suspects.

Mollie was asked about the Miller connection to her husband’s murder shortly before her death. She said she believed Miller to be the killer, but it seems her allusion to Miller’s involvement originated from Wild West pulp magazines like those featuring Max Coleman’s stories.

Questions Abound

Why would a respected lawman like Jack Abernathy wait 24 years—much less a day, a week, or five years—to tell anyone of Deacon Jim Miller’s blockbuster confession, especially if the murder victim was related to his own family members? Maybe he didn’t need the $1,000 reward for Jim Jarrott’s killer. Maybe he was just lazy or forgetful. Or, could it be that he needed to establish some credibility for his soon-to-be-published autobiography, Catch ’em Alive Jack: the Life and Adventures of an American Pioneer?

Why were the 1902 investigative notes of an obscure Texas sheriff and the 1903 grand jury testimony of a forgotten cowboy transformed into dramatic, colorful accounts in Wild West literature by Max Coleman, known teller of tall tales, almost three decades later? How could Coleman have known about the Miller confession two years before Jack Abernathy first disclosed the confession to Monroe? Are Gib Abernathy, the man Coleman says obtained Miller’s confession, and Jack Abernathy actually the same person?

Was Jack Abernathy’s tale true, or was he just trying to get his book published? Or was he attempting to collect the 1902 reward offered “for the arrest . . . of the assassin”? Did Jack and Monroe create the Miller confession, perhaps with help from Max Coleman, in order to squelch lingering suspicion that Mollie was involved in Jim’s murder?

Jack’s memoirs were finally published in 1936. It seems strange that Abernathy did not mention Miller’s confession of Jim’s murder anywhere in his book. In fact, he wrote only three short paragraphs about his arrest of Deacon Jim, one of the most notorious outlaws of the era. But Abernathy did write: “A reward of one thousand dollars had been offered for the capture of Miller. I never did receive that reward, but I still have hopes.” Jack did not tell his readers that the $1,000 reward related in any way to slain Lubbock lawyer Jim Jarrott, whose name does not appear in his memoirs.

Land Deal Connects Miller to Cattle Barons

The confession stories may have just been a convenient way to wrap up a cold case in a way easily understood by the folks still interested in the case decades later. But the fact that Deacon Jim Miller probably did not confess to the murder of Jim Jarrott does not mean he did not commit the crime. Miller was probably the killer. Circumstantial evidence and direct evidence indicates he was well connected to the ranching interests suspected of paying to assassinate Jarrott.

In 1903, less than six months after the Jarrott murder, one “J. B. Miller”17 participated in a sinister real estate transaction in Terry County, which borders both Hockley and Lubbock counties.18 Four sections of land near The Strip were flipped in just a few months, and a careful look at the complicated deal reveals a suspiciously close relationship between Miller and the enemies of Jim Jarrott.

On January 23, D. J. Howard conveyed 2,560 acres of land to Miller for $3,900, which the outlaw promised to pay in the form of a promissory note secured by land in East Texas. A week later, Miller sold the land to W. H. Fisher for $4,100, which looked like a nice $200 profit. But the notes securing Miller’s debt to Howard turned out to be worthless, so it seems Miller made out like a bandit with the whole $4,100 he received from Fisher. In less than six weeks, Fisher dumped the four sections on A. M. “Dick” Brownfield for $800, apparently incurring a $3,300 loss. Then Dick made a huge profit when he sold the property, creating another layer of intrigue to the Jarrott legend.

The cheated Howard should have looked to Miller to cover the bad debt, it seems, but instead he chose to sue Dick Brownfield. Howard claimed Dick was involved in a conspiracy with Miller and Fisher to swindle him out of his four sections of grassland. Miller testified on behalf of Dick, and Howard lost his lawsuit and his land.

Howard was a settler in the area who early on partnered in cattle deals with Dick Brownfield’s ranching family, but later often feuded with them. W. H. Fisher, another player in the land flip, was a Fort Worth banker. His connection with Miller and Dick Brownfield is not clear, but it is clear Fisher sold the land to Dick for substantially less than fair market value. It is rare indeed to find a banker so unwilling to make a profit. If Howard’s allegation of a conspiracy is true, it would make sense that Miller and Fisher may have divided a profit on the deal, and Dick Brownfield wound up with four sections of land for less than 31 cents per acre, which had sold a few weeks earlier for $1.52 an acre. Then, just three months later, Dick Brownfield sold the property again, this time for $3 an acre.

It is quite interesting that the shady transaction involved Dick, who was the son of M. V. “Pap” Brownfield, a rancher who was connected to the Lake-Tomb Cattle Company, Jim Jarrott’s main enemy. Pap Brownfield, less than a year earlier, had helped post bail for the four L7 Ranch cowboys who were originally accused of conspiracy to murder the Lubbock lawyer.

In a strange twist, the land likely used to compensate Deacon Jim Miller for murdering Jim Jarrott became a town named after one of the ranchers who should have been investigated for arranging the killing.19 Dick sold the four sections to real estate developers, who transformed the open prairie into a town that would be named Brownfield in honor of his father, Pap.

So, there is compelling circumstantial evidence that Deacon Jim Miller was near the scene of the Jarrott murder within five months of the commission of the crime, that he was doing business with ranchers who had been aligned against Jarrott, and that the business he conducted with the ranchers resulted in Miller reaping a windfall profit.

But there is other evidence that directly connects contract killer Miller to M. V. Brownfield, bail bondsman for the Lake-Tomb Cattle Company cowboys.

Miller’s Convenient Witnesses

In 1904, Miller was arrested for killing detective Frank Fore at Fort Worth. One of the witnesses he called in his defense was Pap Brownfield, who claimed that he was in the hotel washroom with Miller and Fore, and that Fore drew his pistol first. Miller was acquitted on the testimony of Pap, the father of Dick Brownfield, who only a year before apparently profited on a crooked land deal brokered by Miller.20 This is further evidence that contract killer Deacon Jim Miller well knew Pap, a prominent rancher connected to cattle barons aligned against Jim Jarrott.

Miller also knew a man by the name of Tom Morrison. As early as 1897, Morrison was called as a character witness for Miller in his Eastland County trial for the murder of Bud Frazier at Pecos. Miller was tried twice, and acquitted. In what seems a bizarre coincidence, the same Tom Morrison appeared on the list of witnesses subpoenaed some six years later for the four L7 Ranch cowboys indicted for conspiring to kill Jim Jarrott. Did Deacon Jim Miller offer up his favorite magic character witness in order to keep the cowboys quiet about Miller’s involvement in Jim Jarrott’s murder?

The answer to this question, and all the others surrounding the Jim Jarrott assassination, will probably be forever lost in the lore of the Llano Estacado.

Jarrott or Brownfield?

The Deacon Jim Miller confession legend is an “O. Henry” type ending to the Jim Jarrott story. It probably created more questions than answers to the mystery.

It is likely that Jarrott was killed at the behest of powerful South Plains ranching interests. Whether the actual shooter was the infamous Miller or some poor ranch hand is interesting, but the real inquiry should always have been, “Who ordered Jim Jarrott’s assassination?” The official investigators of the 1902 crime were unable or unwilling to trace the origins of the killing, and they were probably afraid to probe into the influential ranchers’ affairs. Some of those who should have been prime suspects are now regarded as South Plains pioneer heroes, with towns and schools bearing their names.

Any evidence tending to positively connect anyone to the crime is likely long gone. Over the years, authors and historians intrigued by the case have chosen not to raise many questions about the cattle baron connection to the murder or the unlikely Miller confession. They have concentrated on the colorful and romantic nature of the story—the Twin Sisters, the four cowboys, the poor widow who made good, the contract killer who pretended to be a deacon—instead of posing perhaps a better question.

The better question is this: Shouldn’t the South Plains City of Brownfield be renamed “Jarrott”?

Sources: “Who Killed This Man?” by Max Coleman, Frontier Times magazine, Volume 8, No. 12, September 1931; “Courts of the Panhandle,” by Max Coleman, Frontier Times magazine, Volume 9, No. 8, May 1932; From Mustanger to Lawyer, Part A, by Max Coleman, Carleton Printing Company, 1952; From Mustanger to Lawyer, Part B, by Max Coleman, Carleton Printing Company, 1953; Texas State Historical Association Handbook of Texas Online; the Southwest Collection of Texas Tech University; Death on the Plains: The Murder of Jim Jarrott, by Yvonne Perkins and Judy Womack, self-published, 2010; Catch ?em Alive Jack: the Life and Adventures of an American Pioneer, by John R. Abernathy, Bison Books, 2006 (originally published in 1936 by the Association Press of New York); Personnel of the Texas State Government, compiled and published by Lewis E. Daniell, Austin: Press of the City Printing Company, 1887; Archives of the Lubbock County District Clerk; Archives of the Floyd County District Clerk; Archives of the Terry County Clerk.

Dan Kim, Texas Tech MBA candidate, assisted in researching this article. Lubbock County Court-at-Law Number 3 Judge Paula Lanehart (retired) contributed to this article, as did Waco historian Ellis Lindsey.

Notes

1. An earlier killing in Dickens County resulted in a murder trial. However, the jury ruled that the killing was not a murder, and the defendant was acquitted. Getting Away with Murder on the Texas Frontier, by Bill Neal, Texas Tech University Press, 2006.

2. Add-Ran College, established at Thorp Spring, eventually found its way to Fort Worth, where it is now known as Texas Christian University.

3. This was the first of hundreds of similar memorial services, the most honored and unique tradition of the Lubbock County Bar Association. The Lubbock County Bar Association is believed to be the only organization in the State of Texas that memorializes each local departed attorney with a special meeting of the bar, usually at the courthouse.

4. The Painthorse Hamilton story is based on the writings of Lubbock lawyer Max Coleman, an early chronicler of South Plains legal history. Unfortunately, Coleman admitted he often embellished his memoirs, books, and magazine articles with tall tales, and he rarely provided source references.

5. Max Coleman’s account of the Jarrott case dates the murder “Wednesday, August 7, 1902.” But August 7 of that year was a Thursday. Jarrott was last seen alive on Wednesday, August 27, 1902. His gravestone in the City of Lubbock Cemetery was engraved with his date of death as August 28, 1902.

6. There is no record of a place known as Twin Sisters in Lubbock or Hockley County records, though there is no question that the murder was committed at a windmill. Max Coleman probably invented the name of this colorful setting.

7. Max Coleman wrote that wolves had feasted on Jarrott’s carcass. But the last gray wolf (a “loafer wolf” or ‘buffalo wolf”—canis lupus nubilus) in the area was reported to have been killed before the turn of the century by Lubbock pioneer rancher, farmer, and civic leader George C. Wolffarth (namesake of the town misspelled Wolfforth), so it is unlikely wolves molested Jarrott’s corpse, though other critters may have participated in this dastardly deed.

8. The indictments were handed down by a Lubbock County grand jury, though the murder had taken place in Hockley County, an unorganized Texas county. Only 44 people lived there at the time of the 1900 census. Therefore, Hockley County was attached to Lubbock County for judicial purposes until it was organized in 1921.

9. Wheelock also distinguished himself by being the first person in the history of Lubbock County to be indicted for a felony crime, fence-cutting, and cattle theft, in 1891. The charges were dismissed.

10. There is no existing transcript of Glaser’s grand jury testimony, and there is no reference to this account except in Max Coleman’s writings, so this information is suspicious.

11. Archives of the Floyd County District Clerk, Cause Nos. 250 and 251.

12. The swastika was a popular symbol of luck in Western culture until the German Nazis adopted the swastika as an icon for the repressive regime in the 1930s.

13. Perhaps by coincidence, Abernathy was the Lubbock County Justice of the Peace who arraigned the original four murder suspects in 1903. And his name, along with Mollie’s, appears on a defense subpoena application filed in the perjury case of B. F. Nix, one of the four L7 Ranch men accused of conspiring to kill Jarrott.

14. Just as there is no evidence that Monroe Abernathy was related to Gib Abernathy, there is no verifiable evidence that Monroe Abernathy was related to Jack Abernathy, other than the fact that the men claimed to be cousins.

15. A copy of Jack Abernathy’s letter to Monroe Abernathy is among the papers in the James William Jarrott reference file at the Southwest Collection, Texas Tech University.

16. Some accounts claim Miller killed as many as 51 men, among them Pat Garrett, the lawman who took the life of Billy the Kid. But the story of Miller’s assassination of Garrett is the subject of much historical debate.

17. Terry County deed records indicate the transactions involved “J. B. Miller and wife S. B. Miller.” Tarrant County records show that Deacon Jim Miller, a native of Tarrant County, was married to Sarah B. Miller. So there is little question that Deacon Jim Miller was the same person as the J. B. Miller involved in the Terry County transactions.

18. Terry County deed records, 1903.

19. It is noteworthy that Pap Brownfield “counted little on law enforcement, believing himself fully capable of handling his own problems.” Unpublished paper “Three Major Crises in the Life of Terry County,” by Glen H. Mitchell, 1957, Southwest Collection of Texas Tech University.

20. Miller was represented by Texas lawyer Moman Pruitt. Pruitt was a legend, a dynamic litigator who never had a client executed, winning acquittals in 304 of his 342 murder cases.

Chuck Lanehart is a shareholder in the Lubbock firm of Chappell, Lanehart & Stangl, PC, where he has practiced law since 1977. A 1977 graduate of Texas Tech University School of Law, he is board certified in the field of Criminal Law by the Texas Board of Legal Specialization. Chuck served as director of the State Bar of Texas, District 16, and as president of the Lubbock County Bar Association. He was the founding editor in 1987 of LCBA’s monthly publication, The Lubbock Law Notes. A former director of the Texas Criminal Defense Lawyers Association, Chuck received the President’s Commendation for “Outstanding Service to the Citizen Accused” in 1990 from TCDLA. In 1993, TCDLA honored him with the President’s Award for his service to the TCDLA Strike Force. Chuck is a charter member and former president of the Lubbock Criminal Defense Lawyers Association. Texas Monthly magazine has named him a “Super Lawyer” in the field of criminal law. He is a Fellow of the Texas Bar Foundation. In 2008, Chuck was named among the “200 Most Influential People in the History of Lubbock” by the Lubbock Avalanche-Journal.

President’s Message: We Ought to Be Ashamed – By William Harris

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On May 3, 2011, the State of Texas executed Cary Kerr from Fort Worth. Brad Levenson and his staff at the newly created Office of Capital Writs (OCW) made a valiant attempt to get the Court of Criminal Appeals and the Supreme Court to halt the execution and consider fully mitigation evidence developed by OCW after Mr. Kerr’s state habeas counsel failed to do so in the original state proceeding. Brad and his staff performed to the highest standards of our profession. We should all be proud of their work.

What we should be ashamed of is the holding of the Supreme Court and the lower courts following its lead: that an indigent capital defendant has no constitutional right to the effective assistance of counsel on the post-conviction review of his case. Post-conviction review of trials in which a death penalty is imposed is required by the United States Constitution. It is beyond question that every defendant tried in our criminal courts for non-petty offenses is entitled to competent, effective assistance of counsel as a matter of constitutional right. In cases where the death penalty is imposed, we require that new counsel review the process for constitutional error, including the effectiveness of trial and direct appeal counsel. Yet the Court blithely says there is no right to effective, competent performance by the lawyer performing that post-conviction review.

I have read the legal reasoning behind this rule, and I think it faulty. If the constitutional adequacy of the process at the trial and on appeal is subject to review, the attorney assigned to perform that review should also be required to do a competent job of it. If not, it allows for the cynical appointment of attorneys who have demonstrated poor performance in the habeas review process by courts who wish to protect convictions and death sentences. It means that the taxpayer is paying substantial sums of money for work that is little more than a sham. It means we cannot be certain that our criminal justice system functions as it should when we call upon it to impose the most severe punishment possible. Most importantly, how do we look to the rest of the world when the criminal justice system—which we like to call the best—says at the highest level that a condemned person is not entitled to competent counsel in every stage of the process?

I have devoted thirty-five years of my life to working in this system. I know its strengths and I know its weaknesses. I know it can always be improved. As long as we, as a society, say that we honor justice, that justice should be served, we cannot accept a rule that says that ineffectiveness of defense counsel at any stage of the proceeding, particularly when that counsel is assigned by the very government seeking to execute the condemned, is constitutional. We ought to be ashamed.

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

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Special thanks to our course directors, John Donahue, David Moore, and Stanley Schwieger, who had 148 attendees in Waco on April 8, and course directors David Moore and Kelly Pace, who had 52 attendees in Tyler on April 15 for our CDLP seminar “Trial Tactics: The Art of War.”

Special thanks also to George Bianchi, President of the National College of DUI Defense (NCDD), and the NCDD Board of Regents for allowing TCDLA to co-sponsor the Mastering Scientific Evidence seminar held in New Orleans April 14–16. Thanks to Troy McKinney, J. Gary Trichter, and Mimi Coffey, our course directors, we had 289 attendees.

Thanks go out as well to course directors Lynn Richardson and Jeanette Kinard, who had 92 attendees in Dallas on May 2 for our CDLP Indigent Defense seminar.

Special thanks to course directors Lawrence Boyd and David Burrows, who presided over our DWI Defense Project seminar on May 6, attracting some 230 attendees to Arlington.

Special thanks to senior lobbyist Allen Place, who conducted a Legislative Update conference call on April 20. We plan on having another conference call in mid-summer to update criminal defense lawyers on changes to Texas laws.

We invite all of our TCDLA members to attend the 40th annual membership meeting on Saturday, June 11, at approximately 11:00 am—immediately following the 24th Annual Rusty Duncan Advanced Criminal Law Course.

President-elect Gary Trichter invites all of our members to join him for the TCDLA Members Retreat, July 27–30, 2011, at the unique T-Cross Ranch in Shoshone National Forrest outside of Dubois, Wyoming. The ranch lies at an elevation of 7,800 feet in an untouched country of pine forrest 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 make plans for the summer to join us for fun and CLE. The following CLE will be held in cities across Texas:

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

August 3–4 Austin, “Innocence Work in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction”

August 10 Houston, NHTSA SFST Update

August 11–12 Houston, 9th Annual Top Gun, co-sponsored with Harris County Criminal Law Association

August 19 Richmond, “Trial Tactics: The Art of War”

August 25 Austin, “Innocence Lost: How & Why Investigations Go Wrong”

Good verdicts to all.

Editor’s Comment: Driving My Kids to School on Monday Morning – By Greg Westfall

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So this morning I’m taking my kids to school and listening to the radio. My son and I are talking about the debt ceiling, and I explain to him about debt, budgets, and the politics of the debt ceiling. At one point, my explanation becomes something like this: “It’s a lie. Everything the politicians say is a lie. The politicians who hate Obama lie about Obama and his policies. The ones on the other side lie about those guys. Politicians never tell the truth. They always overstate their claims. They always posture. They always lie. But somehow we keep moving forward.”

I have thought about this all morning. My son is 10 years old, my daughter is 7. What kind of message am I sending them by talking about our elected officials this way? Actually, to my mind, I am sending them an eminently truthful message; just check http://www.politifact.com/truth-o-meter/statements/, where you will find a detailed list of 400 statements, mostly from politicians and those who support or attack them in the media, that are classified as “false.” Another 160 such statements are classified “pants on fire,” meaning falser than false, I guess. But still, what should I tell my kids?

The ironic thing is that right now, our family is watching the HBO miniseries “John Adams.” We just saw the segment on drafting the Declaration of Independence last night. Are my kids going to assume the Congress that included John Adams are all liars?1 Probably not. But really, I wouldn’t care if they did.

I have decided that what I wish most for my children is for each to have an inquiring mind. I want them to think for themselves. I want them to take available information and come to their own conclusions regardless of the positions being staked out by advocates. Thankfully, in this country we do have the freedom to do just that. And I’m going to let them know that when we drive to school tomorrow.


1. If so, he’d be partially right. Sam Adams was a member of the Massachusetts delegation. After the “Boston Massacre” he distributed pamphlets that were demonstrably untrue.

Federal Corner: Will All Arrestees Be Required to Squat and Cough? – By F. R. Buck Files Jr.

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Over the years, I have listened to so many clients relate the pain and embarrassment that they felt as they went through the book-in process at a jail. At least in Texas, Louisiana, and Mississippi, “jail officials may strip search a person arrested for a minor offense and detained for the posting of bond only if they possess a reasonable suspicion that he is hiding a weapon or contraband.Kelly v. Forti, 77 F.3d 819, 821 (5th Cir. 1996) (emphasis added).

That may change—and not for the better. On April 4, 2011, the Supreme Court granted a Petition for Writ of Certiorari in Florence v. Board of Chosen Freeholders, ___ S.Ct. ___, 2011 WL 202772 (2011). The question presented by Petitioner Albert W. Florence is “whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” (Petitioner’s Brief, Florence v. Board of Chosen Freeholders of the County of Burlington, ___ S.Ct. ___, 2011 WL 220710 (2011).

Florence is seeking relief at the Supreme Court from the decision of the United States Court of Appeals for the Third Circuit, which found a suspicionless strip search to be appropriate. Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3rd Cir. 2010) [The panel: Circuit Judges Sloviter, Hardiman, and Pollard. Opinion by Sloviter; dissent by Pollard.]

Judge Sloviter’s opinion reads, in part, as follows:

[The Facts]

On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003, bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

According to Florence, he was subjected to a strip and visual body-cavity search by corrections officers at BCJ. During the jail’s intake process, Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him, and directed Florence to shower once the search was complete. Florence was held at BCJ for six days.

During Florence’s sixth day at BCJ, the Essex County Sheriff’s Department took custody of him and transported him to the Essex County Correctional Facility (ECCF). Florence alleges that he was subjected to another strip and visual body-cavity search upon his arrival at ECCF. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough. After donning ECCF-issued clothing and visiting a nurse, Florence joined the general jail population until the following day, when the charges against him were dismissed.

[The Proceedings in the District Court]

After his release, Florence sued BCJ, ECCF, and various individuals and municipal entities (collectively, the Jails) under 42 U.S.C. §1983. While Florence asserted numerous constitutional claims, the only claim germane to this appeal is his Fourth Amendment challenge to the strip search procedures at BCJ and ECCF.

On March 20, 2008, the District Court granted Florence’s motion for class certification, defining the plaintiff class as:

All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003, to the present date who were directed by Defendants’ officers to strip naked before those officers, no matter if the officers term that procedure a “visual observation” or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons[.]

Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at 17 (D.N.J. Mar. 20, 2008).

***

The District Court found that BCJ’s “blanket” strip search policy “entails a complete disrobing, followed by an examination of the nude inmate for bruises, marks, wounds or other distinguishing features by the supervising officer, which is then followed by a supervised shower with a delousing agent.” Id. at 502. The Court found that ECCF utilized similar strip-search and supervised-shower procedures; however, the ECCF procedures were slightly more intrusive because “Essex officers carefully observed the entire naked body of the inmate, including body openings and inner thighs.” Id. at 503. Having thus defined the Jails’ respective search policies, the District Court concluded that the procedures failed the Bell balancing test and observed that “blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional.” Id. at 513. Based on this holding, the District Court granted the Plaintiffs’ motion for summary judgment on the unlawful search claim, but denied the Plaintiffs’ request for a preliminary injunction. Id. at 519. The Court denied Defendants’ cross-motion which sought qualified and Eleventh Amendment immunity. Id.

[The Path to the Court of Appeals]

Following the decision, the Jails moved the District Court to certify its summary judgment as an appealable order pursuant to 28 U.S.C. §1292(b). The District Court agreed that the order “involve[d] a controlling question of law as to which there is substantial ground for difference of opinion,” id., and we granted permission to appeal. The District Court certified the following question for our review: “whether a blanket policy of strip searching all non-indictable arrestees admitted to a jail facility without first articulating reasonable suspicion violates the Fourth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment.” Florence v. Bd. of Chosen Freeholders of the County of Burlington, 657 F.Supp.2d 504, 511 (D.N.J.2009) (order certifying issue for appeal).

[The Legal Landscape for the Issue before the Court]

This interlocutory appeal requires us to decide whether it is constitutional for jails to strip search arrestees upon their admission to the general population. Although the question is one of first impression for this Court, the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and the many cases that followed it inform our analysis.

In Bell, the Supreme Court rejected a Fourth Amendment challenge to a policy of visual body cavity searches for all detainees—regardless of the reason for their incarceration—after contact visits with outsiders. Id. at 560, 99 S.Ct. 1861. The Court applied a balancing test and concluded that the visual body cavity searches were reasonable because the prison’s security interest justified the intrusion into the detainees’ privacy.

Since Bell was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail’s blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir.2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco’s general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir.2010) (en banc).

Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court’s decision in Bell.

[The Fourth Amendment and Personal Rights]

The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. To enforce this guarantee, government officials are limited to only those searches which are reasonable. Delaware v. Prouse, 440 U.S. 648, 653–54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Reasonableness under the Fourth Amendment is a flexible standard, Bodine v. Warwick, 72 F.3d 393, 398 (3d Cir.1995), “not capable of precise definition or mechanical application,” Bell, 441 U.S. at 559, 99 S.Ct. 1861. “In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id.

[The Fourth Amendment and Its Application in Detention Facilities]

Detention in a correctional facility “carries with it the circumscription or loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). “The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security.” Id. (internal quotation marks and citations omitted). Because privacy is greatly curtailed by the nature of the prison environment, a detainee’s Fourth Amendment rights are likewise diminished. See id. at 526, 104 S.Ct. 3194 (holding that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell”); Bell, 441 U.S. at 537, 99 S.Ct. 1861 (“Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility.”).

While the Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution[,]” Hudson, 468 U.S. at 523, 104 S.Ct. 3194, it has also emphasized that the judiciary has a “very limited role” in the administration of detention facilities, Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as “unique place[s] fraught with serious security dangers,” Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which “courts are ill equipped to deal with,” id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407–08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As the Supreme Court cautioned in Bell: “[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” 441 U.S. at 547, 99 S.Ct. 1861. In addition to prison administrators’ “professional expertise,” separation of powers and federalism concerns support “wide-ranging deference” to the decisions of prison authorities. Id. at 548, 99 S.Ct. 1861 (“[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive branches of our Government, not the Judicial.”); Turner v. Safley, 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[S]eparation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”).

[Bell and the Split in the Circuits]

In the years following Bell, ten circuit courts of appeals applied the Supreme Court’s balancing test to strip searches of individuals arrested for minor offenses and found the searches unconstitutional where not supported by reasonable suspicion that the arrestee was hiding a weapon or contraband. In general, these courts concluded that the extreme invasion of privacy caused by a strip and/or visual body-cavity search outweighed the prison’s minimal interest in searching an individual charged with a minor crime shortly after arrest. See, e.g., Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983). The critical factor in balancing the competing interests was the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs. See, e.g., Shain v. Ellison, 273 F.3d 56, 64 (2d Cir.2001) (“It is far less obvious that misdemeanor arrestees frequently or even occasionally hide contraband in their bodily orifices. Unlike persons already in jail who receive contact visits, arrestees do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide something.”); Roberts v. Rhode Island, 239 F.3d 107, 111 (1st Cir.2001) (“[T]he deterrent rationale for the Bell search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.”).

Recently, the Eleventh and Ninth Circuits, sitting en banc, reversed their prior precedents and held that Bell authorizes a policy of blanket strip searches for all arrestees entering the general population of a jail. See Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) (overruling Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001)); Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010) (en banc) (overruling Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984)).

[Applying the Balancing Test from Bell]

Mindful of the newly-minted circuit split we have described, we proceed to apply Bell’s balancing test to the question certified for interlocutory appeal in this case.

***

Like the Supreme Court in Bell, we assume detainees maintain some Fourth Amendment rights against searches of their person upon entry to a detention facility.

***

To determine whether the strip search procedures at BCJ and ECCF violate the Fourth Amendment, we first consider the scope of the searches at issue.

We have previously recognized that a strip search constitutes a “significant intrusion on an individual’s privacy.” United States v. Whitted, 541 F.3d 480, 486 (3d Cir.2008). Here, the strip search policies require the arrestees to undress completely and submit to a visual observation of their naked bodies before taking a supervised shower. We do not minimize the extreme intrusion on privacy associated with a strip search by law enforcement officers; however, the searches at issue here are less intrusive than the visual body-cavity searches considered by the Supreme Court in Bell. In fact, they are closer to the strip searches upheld by the lower court in Bell.

The searches were also conducted in a similar manner and place as those in Bell—by correctional officers at a detention facility. The policies governing strip searches at BCJ require that they be conducted “in private . . . under sanitary conditions . . . [and] in a professional and dignified manner.” Moreover, the searches are relatively brief, such that between the search and supervised shower, an arrestee is not required to remain naked for more than several minutes. Because the scope, manner, and place of the searches are similar to or less intrusive than those in Bell, the only factor on which Plaintiffs could distinguish this case is the Jails’ justification for the searches.

[The Court’s Conclusion]

Like the Ninth and Eleventh Circuit Courts of Appeals, we conclude that the security interest in preventing smuggling at the time of intake is as strong as the interest in preventing smuggling after the contact visits at issue in Bell. We reject Plaintiffs’ argument that blanket searches are unreasonable because jails have little interest in strip searching arrestees charged with non-indictable offenses. This argument cannot be squared with the facts and law of Bell.

My Thoughts

With an eight/three split in the Circuits, it is no surprise that the Supreme Court granted certiorari in Florence. Because Florence was innocent of the charges that the officer believed were pending against him, he makes a sympathetic petitioner. Will that carry any weight with the justices as they ponder this case? I would bet not. If I had to predict—which one should never do with the Supreme Court—I would think that more and more of our citizens are going to be introduced to the emotional trauma of a strip search for even the least of offenses.

Send your letters, pictures, gripes, bonehead gaffes, or what-have-you to .

Said & Done

/

Kudos

Yikes: Last month’s “Catch of the Day” was attributed to Sarah Roland when, in fact, it was the work of Sarah Gunter (whose signature appeared at the end). A Sarah error that we deeply regret.

On Friday, April 14th, TCDLA Strike Force members represented Houston TCDLA member Mark Bennett in a matter involving a third party attempting to breach the attorney/client privilege on a contract issue between the lawyer and his client. Our TCDLA Strike Force members were successful in representing Mark and protecting the attorney/client privilege. A big thank you to both Katherine Scardino and Stan Schneider for their volunteer heroism.

TCDLA members rallied to testify in hearings on HB 626, related to the issues to be proven by DPS at an ALR hearing. It would have amended §724.042 of the Transportation Code to eliminate the issues of reasonable suspicion or probable cause to stop or arrest a defendant, and whether probable cause existed to believe that the defendant was operating a motor vehicle while intoxicated. This would have left the only issues at the ALR hearing: whether the defendant was operating a vehicle in a public place, was arrested, was requested to submit a specimen, and whether (s)he refused to provide a specimen. This would have made ALR hearings almost meaningless. It was pointed out to the committee that this would preclude a defendant from raising the issue of an illegal, racially motivated, or politically motivated arrest. A dozen TCDLA members, board members, and officers converged upon the Homeland Security Committee to raise red flags to the passage of this bill, including the dubious constitutionality and suspect factual underpinnings. At the end of the hearing, the author withdrew the bill and stated that she would offer a Committee Substitute in order to address concerns raised by the witnesses. That’s teamwork.

Bill Habern, Craig Jett, and John Bennet won habeas relief on the following facts:

  • Client convicted of aggravated sexual assault on 4/19/82 and sentenced to 16 years, entering prison 4/22/82;
  • Notice of Appeal filed 7/12/82, Dallas Court of Appeals reverses conviction on 11/19/84;
  • State files PDR 1/11/85, Court of Criminal Appeals sets bond, which client makes on 1/25/85;
  • CCA reverses Dallas CA on 2/19/86, remands to Court of Appeals, which affirms conviction on 7/14/87; no warrant issued until 11/16/07;
  • Client never called to appear before conviction court;
  • Client arrested for DWI in Missouri 5/21/09, extradited to Texas to serve his sentence—DWI later dismissed;
  • Client was productive member of society, with no new convictions, living openly under his own name; and,
  • Court of Criminal Appeals grants relief, giving day-for-day credit for all time on the street.

State concurs in the grant of relief, which is ordered by a unanimous court

Bill Trantham of Denton obtained a reversal of a felony DWI conviction, with a sentence of 3 years, from the Ft. Worth Court of Appeals. The 2nd Court of Appeals held that the evidence was insufficient to prove that D had been “twice (or even once) previously convicted of DWI in the State of New Mexico . . .” As it turned out, his client acknowledged guilt on one of the cases but told the court that he hadn’t had counsel in either case because he couldn’t afford one. The appellate court reviewed the documents and observed that there were no signed waivers of counsel in either. Though D did not contest the conviction for misdemeanor DWI in Denton County, since the jury was not instructed on the lesser included offense of Class B misdemeanor DWI, the appeals court entered an acquittal.

Steve Green from Athens earned an acquittal from a Henderson County jury on April 19, 2011, after a plea offer of 3 years’ confinement. In the aggravated assault-domestic violence case, his client was alleged to have stabbed the complainant in the head with a Bowie knife. The investigating officer agreed that the injury caused by that type of assault alleged would have been obvious and acknowledged that he didn’t observe any such injury.

Charles Soechting Jr.’s client avoided having his convictions for burglary of a habitation adjudicated and potentially being sent to prison for 3 years (Dallas County). The client, placed on a deferred probation to expire in December 2009, stopped reporting in May 2009 and had a poor record of making payments or doing the community service work. Charles’ investigation revealed that the capias on the MTR was not issued until November 2009, and that his client was unaware of the warrant until he was arrested in February 2011. He presented evidence that his client had not avoided the authorities and had not committed any other violations of the law. The court not only didn’t adjudicate the probationer; it also released him from custody in time to see his two-day-old daughter, born during his incarceration.

David Burrows obtained three not-guilty verdicts on DWI cases in Dallas County. Three not-guilty verdicts in a year might be enough for most of us, but David’s were all in one week. In each, David employed Charlie Foster, who had been a police officer for 28 years, certified in the standardized field tests. David developed testimony from Charlie relative to the new research on HGN testing. He was also able to evaluate whether the one-leg-stand and walk-the-line tests were conducted and graded correctly by the officers.

Paul L. LePak got an acquittal on April 15th on a murder trial in Bell County. He tried the case last year, and the jury hung 9–3 for acquittal. The State had offered 15 years on manslaughter without a finding of the use of a deadly weapon. The owner of the trailer where a shooting took place told officers that the victim, purportedly his friend, had a phone conversation with a man who then appeared at his trailer. Owner left, but said he heard one shot and found his friend bleeding in the trailer. Video from a convenience store showed the defendant talking to the victim, and the defendant’s DNA was found on a hat at the trailer. Paul argued victim could have had contact with any number of individuals after talking to his client in store, and numerous people’s DNA might have been in the trailer. Specifically, owner could have shot his “friend” and just blamed it on the last person to call there. Paul also argued that the evidence connecting various others who visited trailer was just as strong.

David Reddell and partner Jim Story got the two-word verdict for a client who was a co-defendant in a deadly conduct case in Nueces County. Client was accused of firing a shot from a car into a truck stopped five feet away, barely missing two young ladies, and police subsequently found a handgun under client’s bed. The co-defendant, whose car was ID’d by the victims, was originally thought to be the shooter and sole actor—until he convinced the police to wire him. He then conversed with someone he ID’d as the client, who admitted to being the shooter. Based on the audio and his promise to testify, the prosecutor knocked him down to 10 years deferred. David and Jim attacked the weaknesses in the case, not the least of which, of course, was the co-D’s wish to get a better deal. In addition, the officer who wired the co-D and followed him to D’s house was 150 yards away and couldn’t positively identify the person he met. So he, then, was the only person who could ID the voice on the audio, and he was the only one who claimed D was even in the car that night. The co-D, who had gangster photos of himself on his Facebook page holding a gun, had claimed all along that he didn’t know anything about the incident. Good work, guys.

 

Dispatches

Dear TCDLA,

Super application. I used it on my iPhone 4 as well but it is much more useful on an iPad, so thank you for adapting it.

I do a lot of federal criminal work, and I noticed that the federal sentencing guidelines Sentencing Table, which is a chart, comes out unreadable on both devices. Rather than appearing as a chart, it looks like a series of paragraphs explaining formatting. I keep the sentencing guidelines on my devices as a PDF file anyway, but the app would be more useful if it appeared as a table. I am pretty familiar with the table and there is no way to decipher it as it is currently presented.

Having said that I am, as always, grateful for TCDLA and its efforts, which, in this context, gives me hundreds of dollars’ worth of books that I can carry with me always. Incredible.

Best regards,
Charles van Cleef

 

Regarding the Sentencing Table . . . I’m looking at it right now and it is a little hard to read. The trouble is we’ve tried to cram so much information onto a tiny screen. Unfortunately, the chart itself is only a single page. I think I’ll contact Charles and see if we can figure out a way to improve the chart.

Regards,
Grant Scheiner
Chair, Computer & Technology Section