Monthly archive

July 2011 - Page 2

Federal Corner: Don’t Let Your Client Drive the Bus Over the Cliff – By F. R. Buck Files Jr.


On February 26, 2010, United States District Judge Barbara Lynn of the United States District Court for the Northern District of Texas sentenced Don Hill, a former mayor pro-tem of the City of Dallas, to 216 months confinement after a jury had convicted him of the offenses of conspiracy to commit bribery, bribery, conspiracy to commit extortion, extortion, conspiracy to commit deprivation of honest services, and conspiracy to commit money laundering.

Anyone who had followed this case in The Dallas Morning News or seen the television coverage of Hill’s case could not have been surprised by the outcome. What makes this case a little out of the ordinary is that Hill led his lawyer down the primrose path to a contempt citation.

Waldo Snerd represented Hill throughout the investigation and the trial of his case. Hill and Snerd were mentioned in 155 articles appearing in The Dallas Morning News, and there was significant footage of the two of them on the evening news broadcasts of the television stations in the Dallas-Fort Worth metroplex.

Well before the beginning of trial, Judge Lynn entered a gag order which included the following paragraphs:

No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .

Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record. [Emphasis added.]

Four days before the beginning of Hill’s trial, both Hill and Snerd participated in a tele­vision interview that Hill’s public relations representative had arranged. Gary Reaves, a reporter for WFAA-TV, asked Hill, “If you’re not guilty, why do you think you’re getting prosecuted?” Hill responded:

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [ ] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. [Emphasis added.]

Snerd was then asked by Reaves, “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Snerd answered:

Well, that’s—that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t—I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted. [Emphasis added.]

Judge Lynn was not favorably impressed when she learned of Hill’s and Snerd’s comments. She ordered Hill and Snerd, their counsel, and the public relations representative for Hill to appear before her and gave notice to them that she was citing them for criminal contempt. After the conclusion of the criminal case, Judge Lynn presided over a one-day bench trial on the contempt charges. During the hearing, Hill did not testify. Jackson did—and found himself being questioned sharply by Judge Lynn; e.g., “What in the world was going on with you that prevented you from crying foul when you realized that he [Hill] violated the terms of the interview?” and, “What was the source of your optimism that what happened in the interview wouldn’t violate the terms of my order?”

Hill and Snerd were each found guilty of criminal contempt. Hill was sentenced to 30 days imprisonment and Snerd to a $5,000 fine and a 120-day suspension from receiving any new criminal appointments in the Northern District of Texas. Both Hill and Snerd appealed Judge Lynn’s sentence, with each challenging the sufficiency of the evidence.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed Judge Lynn’s sentences. United States v. Hill, ___ F.3d ___, 2011 WL 1207522 (5th Cir. 2011) [Not Selected for Publication] [Panel: Circuit Judges King, Davis, and Southwick. Per Curiam]

The opinion of the Court included the following:

A criminal contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt that there was “(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d 246, 255 (5th Cir.2009) (citation omitted).

[Specificity of the Order]

The district court relied on precedents addressing restraints on out-of-court statements challenged as First Amendment violations. We agree with the district court that those cases offer the best guidance for determining whether the gag order was reasonably specific.


There is no dispute that the phrase “without elaboration or characterization of any kind” modifies the word “discuss.” Although “discuss” may not have been the most apt word to use, it did not redact “out” from “without elab­o­ra­tion.”

The defendants’ contention that the order is unclear is further weakened by their failure to suggest any changes to the district court after being given a draft of the order for review. The gag order was reasonably specific.

[Violation of the Order]

We now turn to whether there was a violation of the district court’s order. We need not agree that every statement identified by the district court violated the order.


The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

We agree that Hill’s statement violated the gag order. Hill did not limit his comments to the general claim that Democrats were being targeted for prosecution by the Bush Administration, which would have been permissible because those claims were included in Hill’s publicly-filed selective prosecution motion. Claiming there was statistical and anecdoctal evidence supporting his claim, though, exceeded the public record. That statement had the potential to impede efforts to impanel an impartial jury.

After Hill completed his interview, Snerd then was asked a number of questions by Reaves. The district court held that Snerd’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?”


The district court concluded, “Snerd did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial. . . .”

[T]he statement also goes beyond what had been filed in the case because Snerd stated that it had been “shown” the Bush Administration was targeting Democrats. That transforms the allegations in the motion into a statement of fact, clearly an elaboration that was potentially prejudicial to the jury pool. This violation might fairly be seen as less egregious than those of Hill, but it was a violation nonetheless.

[Intent to Violate the Order]

Hill and Snerd contend that the government failed to prove they acted with the requisite intent to violate the gag order. The intent element of criminal contempt requires “a willful, contumacious or reckless state of mind.” In re Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the administration of justice[,]” as opposed to negligent behavior, is a sufficient basis on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996 WL 101416, at *6 (5th Cir.1996) (unpublished).

There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Snerd confirmed or mentioned the rules to Reaves before the interview.

Snerd testified that he had not had sufficient time to study the order because he had been busy with another trial. Despite his admitted lack of preparation, he still neglected to bring a copy of the gag order to the interview. Hill, also an attorney, did not have a copy of the order.

Although the defendants’ mere participation in the interview four days before trial did not violate the gag order, they should have proceeded cautiously with their answers. They did not. A couple questions into the interview, Hill was asked an open-ended question by Reaves; specifically, if Hill were not guilty, why was he being prosecuted? Hill, aware the gag order’s purpose was to protect the impartiality of the jury pool, responded that he was being selectively prosecuted due to political and racial motivations. The government contends that it was reckless for Hill to interject the allegations of selective prosecution into the interview. The government argues that the district court denied Hill’s motion to dismiss for selective prosecution, and therefore that issue would never be before the jury. Hill’s response, the government insists, was intended to taint the jury pool.

Snerd testified at the contempt trial that he became uncomfortable with the interview questions and Hill’s answers almost immediately. He was most concerned about Hill’s comments on selective prosecution, yet he too expounded on the very subject when questioned later by Reaves. Snerd admitted that at no point did he stop the interview or ask for a break to retrieve and review a copy of the gag order. After the interview, Snerd was concerned that Hill’s answers violated the order, but neither he nor Hill requested that Reaves not broadcast the interview or gave any indication that the interview may have violated the gag order.

The defendants’ conduct evinced a willful, or at the very least reckless, disregard for the district court’s gag order, the need for a fair trial by an impartial jury, and the fair administration of justice.

My Thoughts

Without being critical of anyone who has a contrary view, my rule—for 33 years—has been never to comment on a pending case. I well remember giving a “background comment” to a reporter who had assured me that his story was not going to run until after a RICO case had concluded. Unfortunately, the story was published on a Saturday, and the federal judge in whose court I was practicing had the entire weekend to become more and more displeased. On the following Monday, he posed the question, “Would you rather practice law in my court or in the newspaper?” After pondering the question, I chose the first option. That was my last such comment.

Rule 3.07 [Trial Publicity] of the Texas Disciplinary Rules of Professional Conduct sets out the prohibition against inappropriate pretrial publicity.

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Ellen Pitluck, an ethics attorney for the State Bar of Texas, told me that there are no ethics opinions under this rule and that the Board of Disciplinary Appeals (BODA) has not considered a complaint under this rule.

In retrospect, Mr. Snerd would probably have preferred—if the choice had been his—to have faced a panel of a grievance committee rather than the wrath of a federal judge.

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

Said & Done



Victor Amador of Lewisville was victorious when the 2nd COA ordered the 16th Judicial District Court in Denton to dismiss a murder case against his client due to the violation of the Interstate Agreement on Detainers Act. Victor filed a motion to quash the 2008 indictment, the 16th court denied it, so he filed a Writ of Prohibition and Mandamus. The COA ruled in his favor, and the defendant walked out of the Denton County Jail on April 8, 2011. Nice work, Victor.

Corpus Christi members had a May to remember: Constance Luedicke and Michelle Ochoa heard the two-word verdict 22 times in a possession of child pornography case in the 105th District Court in Nueces County. On the same day, Jimmy Granberry heard the “not guilty” returned in an assault case in County Court at Law #2 in Nueces County. Way to go, Corpons.

Fort Worth member Bob Ford scored a major victory for Chelsea Richardson, the first woman in Tarrant County to be sentenced to death. After a four-year appellate battle, Bob secured an agreement with the DA’s office that the former prosecutor on her case withheld evidence, and that she should get a new punishment hearing—and a life sentence. Richardson and two others were found guilty of the slayings of her boyfriend’s parents at their home in Mansfield in 2003. If District Judge Steven Herod, who was appointed to hear the appeal, agrees with their conclusions, he will make a recommendation to the Texas Court of Criminal Appeals. If the appellate court agrees, both sides then plan to enter into an agreement, and Richardson will receive a life sentence. A long, tough fight, Bob. Way to hang.

Two Trial College grads—Leslie Starr Barrows (2010) and Dean Miyazono (2011)—heard the two-word verdict in a DWI 2nd with a portable breath test of .175 in Tarrant County Criminal Court No. 7. Good work, y’all. You make us proud. Tarrant County prosecutors have had their hands full there recently: 4 not-guilty verdicts in that court in the past 2 weeks!

Keith and Cynthia Hampton of Austin won a mandamus in the Court of Criminal Appeals June 15th. The case involved the disqualification by the trial court of Bob Phillips, the defendants’ retained counsel, for a perceived conflict of interest because of his former representation of a witness who was expected to testify for the state, but who had nothing to do with the defendants’ case. In re Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519 & 76,520, delivered June 15, 2011). The case is important because it not only reinforces the defendant’s 6th Amendment right to chosen counsel, but, because the CCA, after observing that the trial court made no record on whether there was a conflict, disabuses the state and trial court of the notion that counsel can be removed merely because of how his representation may appear to the public: “[B]efore the mere appearance of unfairness may be allowed to defeat the Sixth Amendment presumption in favor of retained counsel, it must be accompanied at least by some serious potential for conflict. Here, the respondent allowed his concern about the public’s perception of fairness, without more, to override the relators’ own perception that the best way they could assure fairness for themselves was to be ‘defended by the counsel [they] believe[d] to be best.’ [] Such a concern, untethered to a finding of an actual or serious potential for conflict of interest, cannot suffice to overcome the . . . presumption [in favor of retained counsel].” The Court also rejected the state’s argument that appeal was an adequate remedy: “Requiring an accused to go through the ordeal of trial and appeal before he can pursue his remedy on appeal is a waste of public resources that can serve only to compel him unduly to reveal his evidence and trial strategy to the State.” Congratulations, Keith and Cynthia, on a great win!

The TCDLA Droid App Is Here

The new Android app for codes is now available in the App Market. Thanks once again go out to Grant Scheiner, Chair of the Computer & Technology Section of the State Bar of Texas, for his efforts seeing this created.

TCDLA warrior Stan Brown, who has practiced law in Abilene since 1972, will be honored in July as the first recipient of the Warren Burnett Award by the Legal Services to the Poor in Criminal Matters Committee of the State Bar of Texas. Jeff Blackburn, chairman of the committee presenting the award, told Greg Kendall-Ball of the Abilene Reporter-News: “Stan is the perfect example of a totally unsung hero who has been doing the right thing—because it’s the right thing—for decades, often with little or no reward. He’s absolutely following in the footsteps of Warren Burnett.”

Jeff said that Brown was the perfect recipient of this award, named in honor of Warren Burnett, an Odessa lawyer who, Blackburn said, “made as big a mark and cut as big a swath through the legal profession as any lawyer Texas has produced.”

For nearly 40 years, Stan has been handling court-appointed criminal cases in Taylor County and the surrounding area. A member of TCDLA since 1974, Stan earned a political science degree from UT then graduated from the University of Texas School of Law in 1969. For the past two years, he’s mostly been appointed to work on appeals cases. “That’s my way of slowing down a little bit,” he says.

Fallen Heroes: Anthony Nicholas


TCDLA Hall of Fame Member Anthony Nicholas passed away on May 7, 2011. Raised in Austin, Anthony was a Navy veteran of World War II. After receiving his law degree from the UT Law School, Anthony served as a prosecutor in Bexar County, beginning in 1951. In 1957, Anthony and Roy Barrera Sr. formed a partnership that lasted more than 50 years—the oldest unchanged legal partnership in San Antonio and possibly in the State of Texas. A charter member of TCDLA, he was a member of the ABA, NACDL, SABA, and SACDL (where he served on the original Board of Directors and was named Director Emeritus), among many others. A member of the original Board of Directors of the Texas Board of Legal Specialization, Anthony served as director for eight years. He has been listed in Martindale-Hubbell with “AV” rating since the mid-1960s—under preeminent lawyers in 1996. He has been named in The Best Lawyers in America in criminal law since its inception in 1987. He is survived by his loving wife of 18 years, B. A. Nicholas, and sons Michael and Drue.

May 17, 2011 SDR

Vol. XXVI, No. 14: 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


United States v. Jackson, 625 F.3d 875 (5th Cir. 2010).

District court violated defendant’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session, and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator distributed to defendant. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared the ledgers and entries, and under what circumstances. There was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated so as to render them admissible under the co-conspirator-statement exception. Accordingly, the district court erred in admitting them. This error was not harmless beyond a reasonable doubt; given the government’s reliance on the notebooks in its closing argument, the government could not show that the notebooks did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including an opportunity for a new trial. (Judge Dennis concurred, primarily to caution that authenticated business records that fall within the business-records exception to the rule against hearsay might still be “testimonial” under Crawford and progeny.)

United States v. Houston, 625 F.3d 871 (5th Cir. 2010).

Where defendant received a 25-year sentence under 18 U.S.C. § 924(c) for brandishing a firearm in connection with one Hobbs Act robbery, and a 7-year consecutive sentence under the same statute for brandishing a firearm in connection with another Hobbs Act robbery, the 7-year consecutive sentence was not barred by the first clause of § 924(c)(1)(A)(i), “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law….” The Fifth Circuit held that the statute’s “greater minimum sentence” exception most reasonably refers only to another, greater sentence for the same, specific crime of firearm possession. Here, the 25-year sentence and the 7-year sentence were for separate crimes of possession. The Fifth Circuit noted, but rejected, the Second Circuit’s different rule, namely, that the “except” clause applied to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence, see United States v. Parker, 577 F.3d 143, 147 (2d Cir. 2009).

United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010).

(1) In prosecution for bribery, conspiracy to commit bribery, and money laundering conspiracy, defendants’ objection to the definition of the “corruptly” element of bribery did not preserve their claim that the indictment was constructively amended by the proof adduced at trial. On plain-error review, it was questionable whether there was clearly or obviously a constructive amendment of the indictment. In any event, neither the third nor the fourth prong of plain-error review was satisfied. It was defendants who first touched upon the areas of evidence that they claimed on appeal should not have been before the jury. Moreover, the evidence of bribery was strong, and it was improbable that the jury would have acquitted if only the evidence had been excluded.

(2) Even if prosecutor’s comments during closing argument could be construed as an impermissible comment on one defendant’s failure to testify (and the Fifth Circuit suggested that this was questionable, as the government’s innocent explanation of the statements was “plausible”), the comments nevertheless did not require reversal on plain-error review, because they were not sufficiently prejudicial to cast serious doubt on the correctness of the jury’s verdict, especially given the court’s cautionary instruction to draw no inference from a defendant’s failure to testify.

(3) Assuming, without deciding, that the jury instructions for the money laundering conspiracy count (a violation of 18 U.S.C. § 1956(h)) incorrectly instructed the jury on the mens rea for that offense, the error was harmless beyond a reasonable doubt because, given the overwhelming evidence, no jury could fail to find the defendants guilty of money laundering conspiracy under the correct standard; a fortiori, there was no plain error (the standard applicable in the absence of an objection to the instructions).

(4) In bribery case, district court erred in calculating the value of the bribe for purposes of USSG § 2C1.1. Particularly, it was error to ascribe to defendant a portion of the value of two yachts he was permitted to use when he had no ownership interest in those yachts. However, the error was harmless because, including the fair rental value of comparable yachts as part of the value of the bribe to the defendant, the same 14-level Guideline enhancement would have applied, and thus the Guideline range would have been unchanged.

United States v. Marquez, 626 F.3d 214 (5th Cir. 2010).

Defendant’s prior conviction for possession of a deadly weapon by a prisoner (in violation of N.M. Stat. Ann. § 30-22-16) was one for a “crime of violence” under the “residual clause” of USSG § 4B1.2(a)(2); therefore, defendant was properly treated as a “career offender” under the Sentencing Guidelines.

United States v. Juarez, 626 F.3d 246 (5th Cir. 2010).

District court did not clearly err in applying a 4-level increase under USSG § 2K2.1(b)(5) (for “engag[ing] in the trafficking of firearms”); there was considerable evidence from which the district court could infer that defendant knew, or had reason to believe, that her conduct would result in the transport, transfer, or disposal of a firearm to a person who intended to use or dispose of the firearm unlawfully. Nor did the court err in apply a 4-level increase under USSG § 2K2.1(b)(6) (for knowledge, or constructive knowledge, that the firearm “would be used or possessed in connection with another felony offense”); first, the district court did not plainly err in concluding that another firearms possession or trafficking offense (here, the illegal transportation or smuggling of guns into Mexico) could constitute “another felony offense” under this Guideline; amendments to the Guidelines make clear that another firearms offense may be the “another felony offense” if, as here, that other offense is not the one that serves as the basis for the defendant’s instant federal conviction; finally, the district court did not clearly err in concluding that defendant knew or should have known that the guns would be used or possessed in connection with the offense of smuggling guns into Mexico.

Henderson v. Thaler, 626 F.3d 773 (5th Cir. 2010).

Where death-sentenced Texas defendant was authorized to file a successive federal habeas petition raising a claim that he was mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), the Fifth Circuit vacated the district court’s order finding the mental-retardation claim time-barred, and remanded for the district court to reconsider, in light of the intervening decision in Holland v. Florida, 130 S. Ct. 2549 (2010), whether defendant was entitled to equitable tolling of the AEDPA limitations period. The Fifth Circuit also held that there was no exception to the AEDPA’s limitation periods for person who are “actually innocent” of the death penalty. Accordingly, the Fifth Circuit remanded for reconsideration of whether defendant’s successive petition was timely and, if it was found to be timely, whether the Atkins claim succeeded on the merits. (Judge Wiener filed a dissenting opinion, in which he opined that the AEDPA’s statute of limitations was never meant to apply, and never should be applied, to claims that a person is categorically ineligible for the death penalty under Atkins or similar rules. He argued that a fundamental miscarriage of justice would occur if defendant were not afforded a federal habeas opportunity to prove that he is ineligible for execution under Atkins.)


Writ of Habeas Corpus & Stay of Execution from Tarrant County

Ex parte Kerr, __S.W.3d__ (Tex.Crim.App. No. WR-62,402-03, 4/28/11)

Dismissed, denied: Per curiam; Price dissented w/Johnson

In 2003, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, and the trial court, accordingly, set applicant’s punishment at death. CCA affirmed applicant’s conviction and sentence on direct appeal. In 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. CCA denied relief. Applicant filed his first subsequent application in the trial court in 2006. This Court dismissed that application because it failed to meet the dictates of Tex. Code Crim. Proc. art. 11.071, § 5. This, his second subsequent application, was filed in the trial court on April 27, 2011.

Applicant presents a single allegation that his initial state habeas counsel rendered ineffective assistance, which denied applicant a proper review of his ineffective assistance of trial counsel claims. Without elaboration, CCA says it has reviewed the application and finds that applicant failed to meet the requirements of Article 11.071, § 5. Accordingly, CCA dismisses his application and denies his motion for stay of execution. Judge Price dissents that applicant presents a more-than-colorable claim of ineffective assistance of counsel at the punishment phase of his trial.

Writ of Habeas Corpus from Tarrant County

Ex parte Bohannan, __S.W.3d__ (Tex.Crim.App. No. AP-76,363, 5/11/11)

Dismissed: Johnson (8-0); Keller concurred; Keasler concurred w/Price, Hervey, Cochran

In 1983, applicant was convicted of aggravated rape and sentenced to 25 years’ imprisonment. He did not appeal. In this writ, applicant contends he was denied a timely preliminary hearing to determine whether there is probable cause to believe he violated his parole. Although applicant has received a preliminary hearing, he argues that this case is not moot because the issues involved herein are clearly capable of repetition, yet evading review, due to the fact that when a writ of habeas corpus is filed seeking to insure the constitutional right to a preliminary hearing, the Texas Department of Criminal Justice (TDCJ) now convenes a late preliminary hearing.

CCA holds that applicant’s claim is not justiciable under the “capable of repetition, yet evading review” doctrine of Weinstein v. Bradford, 423 U.S. 147 (1975), because CCA cannot assume applicant will again be held in custody facing the prospect of a preliminary hearing to determine whether there is cause to believe he violated a condition of his parole. And, applicant has already received such a preliminary hearing on the instant alleged violation. CCA notes that TDCJ must conduct preliminary hearings, as required by Tex. Gov’t Code § 508.2811 and Morrissey v. Brewer, 408 U.S. 471 (1972), within a time frame that meets the demands of due process so that releasees will not be required to seek CCA’s intervention to enforce these rights.

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


Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

In re A.M., No. 11-09-00304-CV, 2011 WL 491018 (Tex.App.-Eastland Feb 11, 2011, pet. filed).

State did not engage in “trickery or deception” in obtaining inculpatory statements juvenile made to polygraph examiner because prior to taking the polygraph exam, juvenile signed a release that expressly authorized polygraph examiner to disclose the results to the probation department. In addition, examiner explained to juvenile that he could be required by law to release the examination results to other parties. Moreover, “[a]bsent an express or implied promise to the contrary, a probation officer is duty bound to report wrongdoing by the probationer when it comes to her attention.”

Miles v. State, No. 11-09-00090-CR, 2011 WL 494885 (Tex.App.-Eastland Feb 11, 2011).

Officer’s observation of D in the act of “talking to a known cocaine addict” deemed a partial basis for RS as to D. “[Officer] testified that there had been at least two robberies in the recent past involving the convenience store where the incident occurred. He also testified that the owner of the convenience store had requested that the police provide extra patrolling in the area due to the high-crime activity. [Officer] observed [D] talking to a known cocaine addict, and he also observed [D] and the known cocaine addict acting suspiciously when he drove up. These facts provided [officer] reasonable suspicion to detain [D] for a Terry stop.”

Carlson v. State, No. 01-09-01030-CR, 2011 WL 649682 (Tex.App.-Houston [1 Dist] Feb 17, 2011).

Minor victim took possession of video tapes containing her nude image with intent to turn them over to police, and, thus, said evidence was not subject to suppression under criminal procedure provision forbidding the admission of evidence seized by any person or officer when that evidence has been obtained in violation of state or federal law; also, the minor victim, unlike D, had a lawful ownership interest in the images, held court. The court observed that the minor victim filed a police report within 48 hours of retrieving the videotapes from D’s (her uncle’s) home. In addition, the minor victim had ownership interest in possessing the images, even though the images were illegal, because she did so in order to preserve her own privacy and to prevent further publication of the images by D.

Hughes v. State, No. 06-10-00160-CR, 2011 WL 662325 (Tex.App.-Texarkana Feb 24, 2011).

Interaction between officer and D was a mere “encounter” rather than an investigative detention, because officer activated squad car’s white overhead lights rather than the red and blue lights; also the position of the quad car relative to D’s vehicle did not entirely prevent D from leaving. “[Officer] observed [D’s] car in a parking lot of [a park] legally parked with the headlights on. As [officer] approached, the headlights of [D’s] vehicle turned off…. [Officer] parked his marked police jeep at an angle to [D’s] car and turned on the vehicle’s bright overhead white lights. [Officer] then illuminated the front of [D’s] vehicle with his spotlight. [Officer] testified he did not observe any illegal activity, but testified the [the park] area has a high incidence of drug and prostitution activity…. [D] argues the initial interaction between [officer and D] was an investigative detention because [officer] parked in front of [D’s] vehicle and activated his overhead [white] ‘take-down’ lights…. It is important to note that the lights activated by the police officer in this case were not his overhead emergency lights which flash red and blue, but rather the overhead white safety or ‘take-down’ lights. We believe this distinction to be extremely important…. While under some circumstances, overhead ‘take-down’ lights could be sufficient along with other circumstances to indicate a sufficient demonstration of authority, [such was not the case here].”