Monthly archive

June 2012

June 2012 SDR – Voice for the Defense Vol. 41, No. 5

Voice for the Defense Volume 41, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

D’s fair trial did not preclude prejudice from counsel’s ineffective assistance. Lafler v. Cooper, 132 S. Ct. 1376 (2012)

      It was conceded that counsel was deficient in providing erroneous legal advice concerning the plea bargain, but petitioner prison warden contended that inmate suffered no prejudice because he was properly convicted after a fair trial. The Court held that D’s fair trial did not preclude prejudice from counsel’s ineffective assistance. The right to effective assistance was not solely to ensure a fair trial, and there was no indication that the fair trial cured counsel’s error. Further, D suffered prejudice rather than a windfall based on the likelihood that the outcome would have been different, since D sought relief based on a failure to meet a valid legal standard rather than application of an incorrect legal principle. Also, a lack of prejudice could not be based on the reliability of the trial since the reliability of the pretrial bargaining, which caused the inmate to lose the benefits of the bargain, was the concern at issue. However, the appropriate remedy for counsel’s error was to re-offer the plea bargain and conduct further proceedings in state court, rather than directing that the plea bargain be enforced. The judgment upholding the grant of the writ of habeas corpus and directing that the plea bargain be enforced was vacated, and the case was remanded for remedial action.

The district court had discretion to order that D’s federal sentence run consecutively to his anticipated state sentence for the probation violation. Setser v. United States, 132 S. Ct. 1463 (2012)

      D was convicted of a drug offense in federal court and a probation violation and drug offense in state court. D contended that his federal sentence was improperly imposed to run consecutively to the anticipated state sentence for the probation violation. D appealed the judgment of the Fifth Circuit that upheld the sentence.

      The U.S. Supreme Court held that the district court’s authority under 18 U.S.C.S. § 3584(a) to impose concurrent or consecutive sentences when multiple sentences were imposed at the same time, or when a defendant was already subject to a state sentence, did not preclude the discretion of the district court to impose the single sentence to run consecutively or concurrently with a state sentence not yet imposed. Further, the authority of the Bureau of Prisons to determine whether a sentence would be served in state or federal prison did not commit the concurrent/consecutive determination exclusively to the Bureau. Also, the practical difficulty in determining the length of D’s sentence, based on the state sentence for the probation violation being shorter than the state sentence for the drug offense, did not render the sentence unreasonable. The judgment upholding D’s sentence was affirmed.

New federal immigration provision, 8 U.S.C.S. § 1101(a)(13)(C)(v), did not apply to alien’s pre-Act conviction. Vartelas v. Holder, 132 S. Ct. 1479 (2012)

      After petitioner alien became a lawful permanent resident, he pled guilty to a felony in 1994. He traveled abroad in 2003. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. An immigration judge denied the alien’s request for relief and ordered him removed. The Board of Immigration Appeals (BIA) affirmed the judge’s decision, and the Second Circuit affirmed. The Supreme Court reversed and remanded.

      The Illegal Immigration Reform and Immigrant Re­spon­si­bil­ity Act (IIRIRA) of 1996 effectively precluded foreign travel by lawful permanent residents who had a conviction like the alien’s. Guided by the deeply rooted presumption against retroactive legislation, the Supreme Court held that the IIRIRA’s admission provision, 8 U.S.C.S. § 1101(a)(13)(C)(v), did not apply to the alien’s conviction because the provision attached a new disability (denial of reentry) in respect to past events (his pre-IIRIRA conviction). The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore de­ter­mined not by IIRIRA, but by the law in force at the time of his conviction. Under that law, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status.

Jails may perform suspicionless strip searches on new inmates regardless of the gravity of their alleged of­fenses. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012)

      The search procedures at the county jails struck a rea­son­able balance between inmate privacy and the needs of the in­sti­tu­tions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules D proposes. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process; se­curity imperatives involved in jail supervision override the as­sertion that some detainees must be exempt from invasive search procedures absent reasonable suspicion of a concealed weapon or other contraband.

Fifth Circuit

The weight computation in a meth case determines the base offense level and is a question of fact. United States v. Conn, 657 F.3d 280 (5th Cir. 2011)

      In case involving manufacture of meth, Application Note (C) to USSG § 2D1.11 requires the court to compute the base offense level using only the weight of the pure pseudoephedrine, not the entire gross weight of the tablets containing the pseu­do­ephedrine. This computation is a question of fact and, as a question of fact, could not constitute plain error (at least in the absence of clear evidence that the weight was improperly that of the entire tablets).

District court erred in holding an evidentiary hearing on D’s federal habeas petition claiming juror bias and ineffective assistance and then in granting relief on the enhanced record that included the evidentiary hearing. McCamey v. Epps, 658 F.3d 491 (5th Cir. 2011)

      Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), when federal constitutional claims are adjudicated on the merits in state court, a federal habeas court may not hold an evidentiary hearing except under very limited circumstances not present here—see 28 U.S.C. § 2254(e)(2). Rather, the federal court’s con­sid­er­ation of the petitioner’s claims is limited to the record that was before the state courts that adjudicated those claims on the merits. Based solely on the state-court record, the Mississippi courts did not unreasonably apply federal law by rejecting D’s federal constitutional claims as waived. The Fifth Circuit reversed the district court’s grant of federal habeas relief.

Where district court re-characterized a federal pris­on­er’s habeas petition under 28 U.S.C. § 2241 as a suc­cessive motion under 28 U.S.C. § 2255, and trans­ferred that motion to the Fifth Circuit for au­tho­ri­za­tion to proceed, the Fifth Circuit had juris­dic­tion to review the district court’s re-char­ac­ter­i­za­tion/transfer. In re Bradford, 660 F.3d 226 (5th Cir. 2011)

      The district court did not err in re-characterizing and trans­ferring the petition because D’s claim—that he was erroneously sentenced as a career offender in light of recent Supreme Court decisions—was not a claim of actual innocence of the crime of conviction and thus was not the type of claim that warrants re­lief under § 2241. Nor was D entitled to authorization to pro­ceed on a successive § 2255 motion because the recent Supreme Court decisions have not been made retroactive to cases on collateral review as required under § 2255(h).

Valid traffic stop was unconstitutionally prolonged be­yond the time necessary to investigate the circum­stances that justified the stop and was not supported by reasonable suspicion of additional criminal activity. United States v. Macias, 658 F.3d 509 (5th Cir. 2011)

      Furthermore, D’s consent, even if voluntary, was not suf­fi­ciently attenuated from the antecedent constitutional violation so as to remove the taint of that violation. Accordingly, all of the evidence in the case should have been suppressed; without the suppressed evidence, there was no evidence to support D’s conviction for felon in possession of a firearm. The Fifth Circuit reversed and vacated the conviction, and remanded for entry of an acquittal.

Within-Guidelines sentence of 27 months’ imprisonment, imposed on D convicted of illegal reentry under 8 U.S.C. § 1326, was not substantively unreasonable due to the staleness of the 1990 drug conviction driving the Guideline calculation or his cultural assimilation in the United States. United States v. Rodriguez, 660 F.3d 231 (5th Cir. 2011)

      The age of a prior conviction does not destroy the presumption of reasonableness attaching to sentences within the range arrived at by use of the “stale” prior conviction, or suffice to overcome that presumption; nor did D’s evidence of cultural assimilation require he be given a sentence lower than 27 months’ imprisonment.

Because prisoner attempted to mail his petition in a man­ner consistent with the actual mail regulations and because he was prevented from doing so because prison mailroom officials wrongfully returned it for failure to comply with nonexistent prison-mail regulation, prisoner should have been afforded the benefit of the prison mailbox rule. Medley v. Thaler, 660 F.3d 833 (5th Cir. 2011)

      On original submission, the panel found that Texas state prisoner’s federal habeas petition was untimely because he bore the blame for an unsuccessful timely attempt to mail that petition from the prison in which he was incarcerated, and because his next, successful attempt was untimely. However, after the original decision, it was learned that the purported mail regulation, based upon which prisoner’s original mailing was rejected by the prison mailroom, did not exist. The Fifth Circuit granted prisoner’s petition for panel rehearing, reversed the district court’s decision dismissing prisoner’s petition as untimely, and remanded.

The County did not demonstrate that the district court plainly erred in instructing the jury that reasonable sus­picion was required for jail strip search. Jimenez v. Wood County, 660 F.3d 841 (5th Cir. 2011)

      A panel decision, following longstanding Fifth Circuit pre­ce­dent, upheld jury verdict finding Fourth Amendment vio­la­tion and awarding damages on the basis of a suspicionless strip search, at a Texas jail, of D arrested for a misdemeanor. On rehearing en banc, the Fifth Circuit held that the County had not preserved its objection to Fifth Circuit law holding that before minor-offense arrestees may be strip-searched, officials must have reasonable suspicion that the arrestees have weapons or contraband; because the County did not preserve its objection, its complaint about that law was reviewable only for plain error. The court then held that “any error in following decades of well-settled circuit precedent does not rise to the level of obviousness” necessary for relief on plain-error review. On the error the County did preserve, the district court did not err in characterizing the offense as “minor” as a matter of law for purposes of this rule. NOTE: The issue of whether minor-offense arrestees may be strip-searched without a showing of reasonable suspicion was decided by Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012), granting cert. to Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir. 2010). See above.

Taken with all the facts, D’s comments to the effect that he wished he had a lawyer did not evince intent on D’s part to invoke his right not to be questioned by police without an attorney present. United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011)

      D’s waiver of his Miranda rights was not involuntary; detective’s statement that D would not get an attorney until he was arraigned in federal court was accurate information, not de­ception vitiating D’s waiver.

      District court did not abuse its discretion in giving a “flight” instruction (i.e., that D’s flight from officers was evidence the jury could consider in determining guilt). A flight instruction is proper when the evidence supports four inferences: (a) the defendant’s conduct constituted flight, (b) the defendant’s flight was the result of consciousness of guilt, (c) the defendant’s guilt related to the crime with which he was charged, and (d) the de­fen­dant felt guilty about the crime charged because he, in fact, committed the crime. On the facts, the jury could rationally have drawn each of these inferences.

      In prosecution for possession of meth with intent to dis­trib­ute, district court abused its discretion in admitting evidence that D’s nephew smoked meth with D. The evidence was clearly “extrinsic” evidence subject to Fed. R. Evid. 404(b), but the government did not give the required notice of its intent to introduce the evidence. This and admission of evidence that D was previously convicted, in Texas state court, of delivery of a controlled substance, even if erroneous, did not warrant re­ver­sal. In light of the strong evidence of guilt and the court’s limiting instruction, these errors were harmless beyond a reasonable doubt.

Court of Criminal Appeals

D showed that his trial was closed to the public, and that closure was not justified. Lilly v. State, No. PD-0658-11 (Tex.Crim.App. Apr 18, 2012)

      D was convicted of assault on a public servant. COA held that his trial proceedings, which were convened at the prison-chapel courtroom, were not closed to the public. CCA reversed and remanded for a new trial.

      D met his burden to show that his trial was closed to the public and that the trial court failed to take every reasonable measure to accommodate public attendance at criminal trials. The record shows that the State did not argue that D waived his public-trial claim until he appealed, that the State signed the plea agreement certifying D’s right to appeal his public-trial claim, and that the parties and the court were aware of D’s intention to appeal the open-trial issue. Although there was suf­ficient evidence to determine that D’s trial was closed to the public, the pretrial hearing and the ruling of the trial court did not constitute the findings of facts necessary to justify closing D’s trial. Because the trial court failed to make findings of fact that justified closing D’s trial, the closure was improper, and D’s constitutional right to a public trial was violated.

The cumulative evidence was sufficient to support a conviction for arson because it established D’s identity as the person who set his vehicle on fire. Merritt v. State, No. PD-0916-11 (Tex.Crim.App. Apr 18, 2012)

      A jury found D guilty of arson for the burning of an insured and mortgaged vehicle. COA reversed, determining that the evidence was insufficient because it did not establish D’s identity as the person who set his vehicle on fire. CCA held that COA incorrectly applied the Jackson standard, in that it failed to properly consider the combined and cumulative force of the evidence and to view the evidence in the light most favorable to the jury’s guilty verdict, and improperly used a divide-and-conquer approach, separating each piece of evidence offered to support the conviction. The evidence supporting a finding as to identity included evidence of motive, in that D had financial problems. There was also evidence of D’s opportunity to commit the crime, in that D was in possession of both sets of keys at the time of the alleged theft. There was testimony that because the ignition and steering column were intact, the vehicle could be moved only by someone using a key to drive it or by a wrecker towing it, and there were no marks indicating a wrecker at the scene. There was also testimony that interior items had been removed, that expensive tires and rims had been replaced, and that items found in D’s trash were documents typically kept in a vehicle. CCA reversed COA, affirmed the trial court, and remanded for COA to consider D’s other claims.

D’s counsel was not shown deficient in failing to object to the lab report on Confrontation Clause grounds when the record does not contain counsel’s reasons for failing to object and does not establish whether the lab analyst could or would have testified upon an objection. Menefield v. State, No. PD-1161-11 (Tex.Crim.App. Apr 18, 2012)

      A laboratory report was admitted into evidence, but the analyst who conducted the test and prepared the report did not testify. COA erred in determining that the record on direct appeal was sufficient to find trial counsel ineffective under Strickland v. Washington, 466 U.S. 668 (1984), where counsel’s actions could have been based on reasonable strategy.

The State was not required to file its own notice of appeal when D appealed his conviction and the State wished to appeal a ruling of law under Tex. Code Crim. Proc. art. 44.01(c). Pfeiffer v. State, No. PD-1234-11 (Tex.Crim.App. Apr 18, 2012)

      Once a convicted defendant files a timely notice of appeal, appellate courts have jurisdiction to address any pertinent cross-appeal or rebuttal issues raised by the State. In the instant case, COA did not address the State’s response to D’s claim that the trooper lacked reasonable suspicion to detain D until the ca­nine unit arrived. The State claimed that the trial court erred by excluding a trooper’s testimony regarding what a county in­vestigator told him, and that the excluded testimony provided the trooper with reasonable suspicion for detaining D. The State petitioned for review of COA’s judgment, which held that it did not have jurisdiction to consider the State’s cross-issue because the State failed to file a notice of appeal.

      The purported “cross-appeal” was merely part of the State’s argument on direct appeal as to why COA should have considered the trooper’s testimony regarding his call from the in­ves­ti­ga­tor. COA thus erroneously held that it did not have ju­ris­dic­tion to consider the State’s argument. CCA reversed and remanded to COA.

Expert testimony deficiencies in D’s murder trial did not warrant habeas relief. Ex parte Jimenez, No. AP-76,669 (Tex.Crim.App. Apr 25, 2012)

      The district court recommended applicant be granted habeas corpus relief from her felony murder and injury to a child convictions based on (1) a violation of Ake v. Oklahoma, 470 U.S. 68 (1985), because she was denied adequate funding to hire experts, and (2) counsel’s handling of experts. CCA denied relief.

      D forfeited her Ake claim for habeas review because she failed to preserve the claim in the trial court by filing a proper writ­ten Ake motion and ensuring that the trial court formally ruled on it. CCA further held that defense counsel was not ineffective in his pretrial preparation because the record showed that he has practiced for more than 28 years, many of the witnesses declined to speak with him despite his requests, and he focused on showing that the child choked on accident. Counsel was not ineffective for retaining its expert, even though he was not an expert in pediatric forensic pathology, because he had some pediatric experience and, as a forensic pathologist, was ideally situated to determine the cause and manner of death in sus­picious circumstances. Counsel was not ineffective for failing to request a mistrial or a continuance after the expert used profanity in speaking to the prosecutor during a break because D failed to show that there was any error in the prosecutor’s impeaching the expert with his inappropriate remark to show his bias.

The complexity of the offense and D’s role in the offense need to be squared with a finding of mental retardation. Ex parte Sosa, No. AP-76,674 (Tex.Crim.App. Apr 25, 2012)

      Applicant sought habeas corpus relief from his capital murder conviction and death sentence. The district court found that he proved his mental retardation. CCA remanded to that court for the judge to consider the factors established in Ex parte Briseno, 135 S.W.3d 1 (2004).

      On the current record, there was no basis on which to determine whether a man who committed the offense that a jury found beyond a reasonable doubt in 1984 could have had the disabilities that D proved by a preponderance of the evidence to a habeas judge in 2008. The record of D’s trial showed that he took the initiative to lead his nephew through a bank robbery, and that he took the initiative to kill the only witness who could identify him, a sheriff’s deputy. CCA remanded so that the judge of the convicting court could gather information and provide findings as to whether D’s alleged symptoms of mental retardation were inconsistent with his being able to commit the crime, and whether, considering the facts of the offense and D’s role, the judge still found that D was mentally retarded.

D’s evading arrest conviction was properly enhanced to a state-jail felony based on his prior evading arrest conviction, even though his prior conviction predated the enhancement statute. Ex parte Carner, No. AP-76,775 (Tex.Crim.App. Apr 25, 2012)

      D’s evading arrest conviction was enhanced to a state-jail felony under Tex. Penal Code § 38.04(b)(1)(A) because it was his second evading arrest conviction. D petitioned for writ of habeas corpus, arguing that his first conviction was committed before the effective date of § 38.04(b)(1)(A). CCA held that because the date of D’s prior conviction is not an element of the offense, he is not entitled to relief.

      The State chose to allege and prove that at the time D was charged with evading arrest a second time, he had been previously convicted of evading arrest. This attendant circumstance to the crime elevated the severity of D’s offense from a Class B misdemeanor to a state-jail felony. The date of D’s prior conviction was irrelevant to the State’s burden of proof. The State met its second burden when it introduced proof that D’s 2008 conviction was final at the moment he evaded arrest a second time.

Pre-arrest, pre-Miranda silence is not protected by the U.S. Const. amend. V right against compelled self-incrimination, and prosecutors may comment on such silence regardless of whether defendant testified. Salinas v. State, No. PD-0570-11 (Tex.Crim.App. Apr 25, 2012)

There was no reasonable suspicion for the traffic stop; the lane-change signal statute required the existence of more than one lane. Mahaffey v. State, No. PD-0795-11 (Tex.Crim.App. Apr 25, 2012)

      Officer stopped D for failing to signal an alleged lane change. Officer ultimately arrested D for DWI. D filed a motion to suppress. The trial court denied the motion, and COA affirmed on direct appeal and on remand. CCA reversed COA and remanded.

      The highway was comprised of clearly marked lanes for vehicular travel and, therefore, was a laned roadway under Tex. Transp. Code § 541.302(7). Once the clear markings on that highway terminated, so too did the corresponding lane. CCA disagreed with the State’s contention that the termination of a lane did not affect whether a driver changed lanes under the signal statute, Tex. Transp. Code § 545.104(a). D did not change lanes; the two lanes became one. Because a signal was required only to indicate an intention to turn, change lanes, or start from a parked position under § 545.104(a), no signal was required when the two lanes merged. Thus, officer failed to articulate specific facts that supported a reasonable suspicion that D violated § 545.104(a). Therefore, there was no reasonable suspicion for the initial stop, and the trial court erred by failing to suppress the evidence obtained as a result of the stop.

COA misapplied the standard of review for sufficiency of the evidence by focusing on the alternative explanations for the child pornography on D’s computer, rather than determining whether the jury’s inference was rea­sonable based on the cumulative force of all the evidence in the light most favorable to the verdict. Wise v. State, No. PD-0473-11 (Tex.Crim.App. Apr 25, 2012)

      A jury could have reasonably rejected D’s claims that the images were due to a virus or former computer owner and instead determined that D had a history of and present sexual at­trac­tion to children, and that he intended to possess the pornographic images of children that were in the free space of his computer. The jury could have inferred from D’s possession of temporary internet files referring to “young porn” and “teen sex” that he knowingly and intentionally had possession of the other child pornography. The evidence also showed that D had an improper sexual relationship with a 16-year-old girl, and his stepdaughter testified that he performed sex acts on her when she was younger than 10. CCA rendered a judgment affirming the trial court, which convicted D of 10 counts of possession of child pornography.

COA should abate D’s appeal because the trial court’s oral denial of the motion to quash D’s information and its written order granting the motion were in conflict. Henery v. State, No. PD-0958-11 (Tex.Crim.App. Apr 25, 2012)

      D contended that the trial court lacked jurisdiction to accept his guilty plea, to sentence him, or to sign the judgment because the case was dismissed when the trial court signed the order quashing the information. COA agreed. CCA vacated COA’s judgment and remanded to that court with instructions to abate the appeal and order appropriate findings by the trial court.

      Tex. R. App. P. 44 controlled because both preconditions were met. First, the trial court’s oral denial of D’s motion to quash and its written order granting the motion are in conflict. Hence, the case could not be properly presented to COA—the trial court’s jurisdiction over the case, and thus the jurisdiction of COA, is determined by which ruling of the trial court controls. Second, only the trial court is in the position to know whether the grant or denial was intended.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed a voluntary, consensual encounter—despite officer parking his car at an angle that partially blocked D’s car’s egress and despite officer shining his spotlight in D’s car—because police car did not prevent D from maneuvering around him and driving away, among other facts. Johnson v. State, No. 14-10-01089-CR (Tex.App.—Houston [14th Dist] Dec 13, 2011)

      D’s vehicle “was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running. . . . [Officer] did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson. . . . [Officer] approached [D’s] car and asked, ‘What’s going on, what are you doing out here?’ and requested [D’s] identification. . . . [Officer] did not carry a flashlight, draw a weapon, order [D] to put his hands up, or otherwise inform him that he was being detained.”

      In reference to the practice of an officer asking, during a consensual encounter, for identification, “[e]ven if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that the citizen complied with the request does not negate the consensual nature of the encounter.”

“Video evidence of a traffic stop is obviously not required in every case, but in a case where there is video evidence which contradicts the officer’s live testimony about the basis for the stop, it may certainly be considered by the trial court.” No. 04-11-00133-CR (Tex.App.—San Antonio Dec 21, 2011)

      COA wrote the above in response to the State’s argument that “‘clear, video evidence’ is not required to support an investigatory stop” and the State’s argument that by deferring to the video, “[the State] is being implicitly held to a higher standard than the minimal threshold of ‘reasonable suspicion.’”

Officer had RS to stop D for failing to signal, despite D’s argument that the State did not provide evidence that “the signal lights on [D’s] vehicle, or any vehicle, stay on during a turn, or after a turn has been completed” to substantiate officer’s statement that he would have seen D’s rear signal lights as they came into his view after the turn if they had been activated prior to the turn. Stewart v. State, No. 14-10-01221-CR (Tex.App.—Houston [14th Dist] Dec 22, 2011, pet. refused)

      “[Officer] and [D] both testified that [D’s] signal would have continued blinking during the turn and for at least ‘a second, two seconds’ as [D] came out of the turn, if [D] had activated the signal prior to making the turn. . . . The trial court properly could have concluded that [officer] had specific, articulable facts that, combined with rational inferences from those facts, would lead [officer] reasonably to conclude that [D] had been engaged in criminal activity.”

When questioned by off-duty sheriff’s deputy about theft at D’s workplace, a reasonable person in D’s circumstance would have felt free to terminate the interrogation and leave despite D’s subjective belief that he was under arrest and despite officer accompanying D to the restroom following his statement. Aguilera v. State, No. 01-10-00304-CR (Tex.App.—Houston [1st Dist] Dec 29, 2011)

Officer had PC to arrest D for DWI, despite officer’s admission that the smell of alcohol on D’s breath did not necessarily indicate intoxication, and that D’s bloodshot eyes could have been caused by chemicals released from the vehicle’s air bag deployment. Jackson v. State, No. 05-10-00816-CR (Tex.App.—Dallas Jan 25, 2012)

                “The possibility of an innocent explanation for [D’s] bloodshot eyes and the smell of alcohol on his breath did not deprive [officer] of the capacity to entertain a reasonable suspicion of criminal conduct justifying further investigation.”

Breath Testing in Texas: A New Paradigm Standard Operating Guidelines for Technical Supervisors: A Good Start

Though Texas has had a breath alcohol testing program for over 40 years, its program has only recently adopted formal written “Standard Operating Guidelines” (SOG) for technical supervisors to follow in the operation of some aspects of the breath test program. The lack of such guidelines (or almost any written policies) has long been problematic and has long been a source of valid criticism of the Texas program—from within Texas and elsewhere. Why it has taken this long to begin to try put anything resembling science into a program headed by a position named “Scientific Director” is, at least in part, due to the culture at DPS that believed that if it had written policies and standards, others might seek to hold those involved in the program accountable to the standards, both scientifically and legally. One can speculate why DPS would see the need to be concerned about those in the program living up to specified standards and policies, but, at least until they begin to water them down, the Texas Breath Alcohol Testing Program now has written standards that technical supervisors are required to follow with respect to some aspects of the breath testing program. It is a new paradigm in Texas—and one this article will explore, both from scientific and legal perspectives.

The new SOGs have fundamentally changed the way DPS regulates breath alcohol testing in Texas. Rather than regulating breath alcohol testing exclusively through formal adoption of administrative regulations in the Texas Administrative Code, DPS now also regulates breath testing through rules contained in its “Standard Operating Guidelines,”which the administrative regulations require to be followed both to have a program approved and to maintain continued approval and certification of the program.

DPS has long had the ability to promulgate and adopt administrative regulations governing breath alcohol testing.1 Such regulations have been and are contained in Title 37, Part 1, Chapter 19, Subchapter A of the Texas Administrative Code. 37 TAC § 19.1 et seq. Until recently, such administrative regulations were the beginning and end of formal policies by DPS concerning breath testing—at least so far as technical supervisors would admit.2 Instead of having requirements exclusively in the Texas Administrative Code, 37 TAC § 19.4(f) of the administrative regulations provides that approval of breath alcohol testing programs is contingent on each program agreeing “to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”3 Thus, the administrative regulations incorporate a requirement that technical supervisors and breath test operators also comply with “any directives, orders, or policies issued or to be issued by the scientific director. . . .”

Most judges, prosecutors and defense lawyers are familiar with the requirement that to be admissible, a breath test cannot violate and must comply with the requirements of the Texas Administrative Code.4 In large part, this knowledge has been the byproduct of the administrative regulations being the only formal rules applicable to breath testing. Now, however, the SOGs, as well as other rules and directives of the department, govern the administration of breath alcohol tests in Texas.

Why the SOGs Matter to Breath Test Cases: Suppression for Failure to Follow

This article is, in part, the product of participants in the criminal justice system wanting to know more about the new SOGs, and about them asking whether a breath test result is subject to suppression if it does not comply with the SOGs. In answering this question it is necessary to recall that it is often amazing what one finds when actually reading statutes and other laws. Tex. Trans. Code § 724.016 provides:

(a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to per­form the analysis.

(b) The department may:

(1) adopt rules approving satisfactory analytical methods.5

Section 724.016 has long been held to set a statutory predicate for admissibility of breath tests in Texas. That is, a breath test must comply with § 724.016 before it is admissible, and a breath test that was not “taken and analyzed under the rules of the department” and that violated the rules of the department was not admissible.6

Notably, § 724.016 does not limit its applicability to regulations adopted under the Texas Administrative Code. It applies to all “rules” of the Department. The new SOGs constitute “rules” of the department. First, on their face, they are rules that must be followed by technical supervisors in administering some as­pects of a breath alcohol testing program. In the common understanding of the word “rules,” the SOGs are rules of the department that must be followed.

Second, and likely more importantly, § 19.4(f) of the administrative regulations expressly requires compliance with “any directives, orders, or policies issued or to be issued by the sci­entific director regarding any aspect of the breath alcohol testing program.” The SOGs clearly constitute “directives, orders, or policies issued . . . by the scientific director. . . .” Indeed, under § 19.4(g), approval of the program may be withdrawn if a program does not comply with all requirements of § 19.4, which includes the requirement to abide by “any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”7 In this context, the SOGs expressly refer to the contents of the SOGs as “policies” of the department. Thus, regardless of whether the SOGs are independently “rules” within the meaning of § 724.016, they are incorporated into § 19.4 of the administrative regulations which have long been held to be within the scope of § 724.016.

Amend v. State, No. 05-08-01656-CR, 2010 Tex. App. LEXIS 3315 (Tex. App.—Dallas, Mar. 5, 2010, no pet.)(not designated for publication), presented a factual situation where what constituted a “rule” of the department under § 724.016 and whether an oral directive from the Scientific Director constituted “any directives, orders, or policies issued or to be issued by the scientific director” under § 19.4(f). In Amend, the defendant argued that an oral directive from the Scientific Director that the 15 minutes presence period contained in 37 TAC § 19.4(c)(1) was not satisfied during the time that the observing officer was in the front seat of a patrol car and the breath test subject was in the back seat, at least when they subsequently arrived at the station and the defendant was taken inside for a later breath test. Though the court ultimately resolved the issues on the basis that the oral directive was not in effect at the time of Amend’s breath test, the factual scenario repeats itself throughout the state on a regular basis and technical supervisors other than the one in Amend have given substantially similar testimony.8

There is no reason to limit the applicability of § 724.016 to only written “rules” when the statute contains no such limitation. Similarly, nothing in § 19.4(f) limits the “directives, orders, or policies . . . of the scientific directive” only to those issued in writing. Indeed, it is more likely that the use of the word “any” before “directives, orders, or policies” without any limiting language makes it clear that oral “directives, orders, or policies” are included. This would also be consistent with the long established DPS practice of often issuing “directives, orders, or policies” only in oral form.

The scope of § 724.016 and § 19.4(f) also makes it important for counsel to seek from the technical supervisor, via discovery in each case, all rules, directives, orders, and/or policies, other than anything contained in the Texas Administrative Code:

1. applicable at the time of the breath test in the case;
2. at the time of certification of the breath test machine in the case;
3. at the time of the last calibration, as defined by the SOGs, of the breath test machine in the case;
4. at the time of the last “Autocal”9 of the breath test machine in the case; and
5. at the time of the preparation of all solutions used to Autocal, calibrate, or in the reference simulator used at the time of the test in the case.

While some technical supervisors have testified that there are no rules, directives, orders, and/or policies other than what is contained in the Texas Administrative Code, other technical supervisors have testified differently, and some technical supervisors have produced documents purporting to be rules, directives, orders, and/or policies issued by the Scientific Director. Obviously, either not all are telling the truth or not all technical supervisors are aware of all of the rules, directives, orders, and/or policies issued by the Scientific Director: Either alternative has potentially adverse consequences for the State in the trial of a breath test case.

The minimization and elimination of details and specifics in § 19.4 of the administrative regulations was likely the product of a desire to have more flexibility in modifying breath alcohol testing program rules without having to go through the cumbersome and formal procedures of amending the administrative regulations. Without doubt, it has accomplished that goal. The changes have also made the requirements of the rules in the SOGs predicates to admissibility and a basis for suppression when they have been violated.

The elements of the rules, regulations, directives, order, and policies may only become part of the predicate for admissibility when an issue about a specific rule is expressly raised by the defense. In Gifford v. State, 793 S.W.2d 48, 49 (Tex. App.—Dallas 1990), pet dism’d improv granted, 810 S.W.2d 225 (Tex. Crim. App. 1991), the Court, relying on Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986), held that compliance with the 15-minute observation period was not part of the predicate for admissibility of the Intoxilyzer test result. Further, relying on Sims v. State, 735 S.W.2d 913 (Tex. App.—Dallas 1987, pet. ref’d), and Mosely v. State, 696 S.W.2d 934 (Tex. App.—Dallas 1985, pet. ref’d), the Court further held that the State was only required to prove compliance with DPS regulations when a defendant had “raised a fact issue” as to whether there had been compliance with a particular regulation.

Regrettably, the cases on which Gifford relied do not stand for the propositions for which they were cited and relied upon by the court. There is not now and never has been a rule in Texas that a statutorily required predicate is satisfied merely because a defendant does not offer evidence that it has not been satisfied, i.e., by creating a fact issue. Harrell does not expressly hold that the State need not show compliance with the 15-minute continuous observation period in order to admit an Intoxilyzer test result. Harrell does, however, hold that the predicate for admissibility of a breath test result is: (1) the use of properly com­pounded chemicals; (2) the existence of periodic supervision over the machine and operation of the machine by one who understands the scientific theory of the machine; and (3) proof of the result of the test by a witness qualified to translate and in­terpret such result so as to eliminate hearsay. Despite its apparent omission of the 15-minute observation period, the lack of discussion of it is easily explained.

First, the observation period was not a regulatory requirement when the three-prong test was first promulgated. See French v. State, 484 S.W.2d 716 (Tex. Crim. App. 1972); Hill v. State, 256 S.W.2d 93 (Tex. Crim. App. 1953). Since the 15-minute observation issue was not at issue in Harrell, it is neither surprising nor of any legal significance that the Court did not modify the long-standing three-part test. Second, and more importantly, the only issue in Harrell was whether the breath test at issue complied with DPS regulations. Thus, regardless of whether the compliance with the regulatory requirements was part of the formal three-part test, the Court implicitly recognized that compliance with DPS regulations was necessary for a breath test result to be admissible. Otherwise, the entire opinion was meaningless dicta.

Ultimately, the court held that the breath test was admissible because it complied with DPS regulations. Thus, while proof of the 15-minute observation period may not be part of the three-part test initially discussed in Harrell, it is not accurate to say that a breath test is admissible without regard to proof of compliance with DPS regulations. To the contrary, and consistent with the statute, the State must show that the breath test was conducted in accordance with applicable DPS regulations.

The Court’s reliance on Mosely is similarly misplaced and erroneous. While Mosely did hold that a defendant is not entitled to a jury instruction unless the evidence has raised a fact issue, Mosely did not hold that a fact issue was necessary before the State had to show compliance with DPS regulations for admissibility purposes. To the contrary, the court held that for admissibility purposes, the State had showed compliance with all applicable DPS regulations by virtue of undisputed, unobjected-to evidence of such compliance. Mosely, 696 S.W.2d at 936. Indeed, the court in Sims, 735 S.W.2d at 919, the final case erroneously relied on by the court in Gifford, expressly recognized that the “fact-issue” holding of Mosely applied only to whether a defendant was entitled to a jury instruction on compliance with DPS regulations.

What Gifford may have meant, but did not say, is that proof of compliance with every detailed regulation is not necessary in the absence of a specific objection pointing out the alleged failure to comply with the regulations. Indeed, this is suggested by Mosely. 696 S.W.2d at 936–937. Finally, as Mosely points out, the Court of Criminal Appeals has held that proper administration of the test, i.e., compliance with DPS regulatory requirements for administering the test, is “a necessary predicate to admissibility of the test result when lack of such a predicate is raised by a proper objection.” Mosely, 696 S.W.2d at 936. See Slagle v. State, 570 S.W.2d 916, 917–918 (Tex. Crim. App. 1978); Cody v. State, 548 S.W.2d 401, 404 (Tex. Crim. App. 1977). It is an objection that raises the prospect of the need for additional proof, not the creation of a fact issue, when admissibility is the issue.

Hawkins v. State, 865 S.W.2d 97 (Tex. App.—Corpus Christi 1993), also holds that the State was not required to prove compliance with the 15-minute observation period contained in the DPS regulations when the defendant had not “raised a fact issue” as to whether there had been compliance with the 15-minute observation requirement. Hawkins relied exclusively on the unsupported holding of Gifford. Thus, Hawkins is likewise suspect. Moreover, it appears that what really happened in Hawkins is that the defendant never objected to the lack of proof of the observation period. The court’s opinion couched the evidence in terms of Hawkins never having “averred” that the trooper did not follow the 15-minute observation period. Once again, it is the specificity of an objection that raises the issue, not the need for additional evidence to create a fact issue.

Counsel handling breath test cases need to ensure that they have a thorough knowledge of the “rules” as well as the “directives, orders, and/or policies” in effect at the time of various steps in the breath testing process. Once counsel knows the standards applicable to the case, counsel can determine whether the State can show compliance with the requisite standards. If the State cannot prove compliance, either because proof is not available to them or because there was not compliance, suppression of the breath test and a favorable resolution of the case become far more likely.

The SOGs: Scope, Details, and Opportunities

The SOGs contain six parts.

  • Part One: “Instrument and Testing Location Management”
  • Part Two: “Record Keeping: Instrument Certification File, Solution File, Subject File, and Maintenance File”
  • Part Three: “Electronic Data Management”
  • Part Four: “Record Retention and Release”
  • Part Five: “Breath Alcohol Instrument Calibration”
  • Part Six: “Thermometers Used in the Instrument Calibration Procedure.”

Part One: “Instrument and Testing Location Management”

This section governs the procedures that must be followed by the Technical Supervisor (TS) in inspecting and testing the machine. It describes what constitutes a “complete inspection.” Section 1.1 provides that an inspection of an evidential machine can only be conducted at the testing site. Thus, it would be improper to inspect and test a machine at any location other than the “evidential testing location.” Issues with respect to this requirement could arise when a machine that is normally at one location is moved to another location or to a mobile location or when a TS purports to have conducted an inspection at home or in a lab followed by a later transfer of the machine to a testing location.10

Section 1.1.1 states a specific requirement for a proper inspection: The “capability of the instrument to detect and subtract the effect of acetone shall be tested.” Though the rule requires the TS to test both the ability of the machine to detect and subtract acetone, subsection provides a specific procedure only for detecting acetone. No procedure is specified for inspecting the “capability of the instrument to . . . subtract the effect of ace­tone. . . .” Practitioners will be unlikely to find any support for a claim that the machine’s ability to subtract acetone was tested. If this portion of the rules has not been followed, a breath test conducted after such a deficient inspection is not in compliance with the rules of the department and the requirement in Harrell for periodic inspection (in compliance with DPS rules) has not been satisfied. Counsel should seek discovery of documentation showing compliance with this rule.

Section 1.2 requires a complete inspection each time a machine is placed into or returned to service at a location. Section 1.2.1 requires that each time a machine is placed into or returned to service at a location the TS shall hand write on the INSP TS test record the date on which the machine was last calibrated and autocaled. Section 1.3 requires that if possible, a compete inspection shall be done each time a machine is removed from service at a testing location. Section 1.4 requires that every machine have a complete inspection at least once each calendar month.

Section 1.5 requires that at least once each calendar month, the reference solution should be replaced with a new solution and the lot number of the new solution recorded on the test record. Section 1.5.1 requires that the nominal value (the expected value) of the reference solution shall be set as the “predicted value.” Thus, if the TS thinks they have a 0.08 solution, 0.08 shall be set as the predicted value. Importantly, section requires that the nominal value be within 0.003 or 3 percent, whichever is greater, of the unbiased estimate of the alcohol concentration.11 Thus, a 0.08 nominal solution value must actually be no less than 0.077 and no more than 0.083.

Most importantly, section 1.5.2 requires that the unbiased estimate and the uncertainty (plus or minus a specified amount) of the solution shall be established by an unspecified “procedure establishing traceability of measurement through an unbroken chain of comparisons to the National Institute of Standards and Technology (NIST) all having stated uncertainties.” Traceability to NIST is a common scientific requirement for assuring accurate measurement. NIST is a government organization that established the true values of various weights and measures. Think of it this way: What is really one gram? NIST answers that question by providing weights that are certified to be one gram plus or minus some degree of uncertainty. Traceability to NIST is a process that requires whatever is being measured to be compared against a known value from NIST. Thus, if a TS uses a solution prepared for the reference simulator solution, that solution must have been tested in comparison to a known standard from NIST. Often times, commercially prepared solutions represent their reported value (plus or minus uncertainty) to be traceable to (measured against) a NIST standard.

The requirement for NIST traceability in breath testing is new in Texas. Counsel should always seek discovery of documentation verifying NIST traceability. As a practical matter, a TS in Texas may have problems testifying to NIST traceability unless that TS has actually done the comparison. A TS who seeks to testify to traceability merely because someone else has told him that it is traceable may be offering no more than hearsay. Such testimony may also raise confrontation issues.

Part Two: “Record Keeping: Instrument Certification File, Solution File, Subject File, and Maintenance File”

This section contains requirements for documenting the certification and calibration of the machine. Technical Supervisors are required by section 2.1 to maintain an “Instrument Certification File,” which must contain “Evidential Breath Alcohol Testing Instrument Certificates” and “Letters of Certification.” Section 2.1.1 requires that prior to being placed into service an instrument must have either a current “Calibration Certificate” and an “Evidential Breath Alcohol Testing Instrument Certificate” or an instrument certification letter signed by the Scientific Director. Section 2.1.2 explains that when a TS provides the Office of the Scientific Director with an initial Calibration Certificate, the Scientific Director will issue an Evidential Breath Alcohol Testing Instrument Certificate. Though it might seem like these paperwork requirements would be routinely followed, hundreds of breath alcohol results in Polk County were invalidated a few years ago when similar documentation requirements had not been fulfilled. Counsel should always seek discovery of this documentation.

Section 2.2 provides that the “Solution File” maintained by the TS must contain the certificates of Analysis and documents necessary to establish NIST traceability, unbiased estimate, nominal value, and combined uncertainty of the reference sample solution used at evidential testing locations. Counsel should always seek discovery of this documentation.

Section 2.3 provides that a TS shall collect and maintain a copy of each breath alcohol test record produced by a machine in the “Subject File.” Section 2.3.1 provides that evidential subject test records may only be produced by a certified instrument in an approved evidential testing location, and that such records must be sequentially numbered. Section 2.3.2 provides that no alterations may be made to data on a printed subject test record. Thus, if the breath test operator has erred in entering information for a breath test, that data may not later be altered. Section 2.3.3 provides a procedure when a breath test slip is missing. Section 2.3.4 provides that test records produced in a laboratory are not evidential and must not be kept in the Subject File. Discovery requests should seek both test slips in the Subject File as well as any non-evidential slips not kept in the Subject File.

Section 2.4 governs records in the “Maintenance File” pertaining to instrument and simulator maintenance and repair and certificates of calibration for thermometers used in the calibration procedures. Calibration procedures are discussed later. Section 2.4.1 provides that maintenance records shall be organized and detailed enough to allow any other TS to render an opinion in litigation concerning the maintenance history of the machine. Thus, it is not enough that a TS claims to “know” what he or she has done on and to the machine; others must be able to also “know” it just from looking at the records. Section 2.4.2 requires that each INSP TS (see section1.1.2) record be kept in the Maintenance File. Section 2.4.3 requires that each ACA test record generated by an inspection “to demonstrate the ability the instrument to detect and subtract acetone,” as required by section, be kept in the Maintenance File.12

Section 2.4.4 provides that the Maintenance File shall contain notes “regarding the major components . . . that are replaced or repaired.” Section provides that if abbreviations or codes are used to describe maintenance and repairs, there shall be a document clearly explaining the codes and abbreviations. Section 2.4.5 requires that the Maintenance File contain notes of major components of each simulator that is replaced or repaired. Section 2.4.6 requires that the Maintenance File contain documentation establishing the NIST traceability of thermometers used in the calibration procedures.

Every document in the Maintenance File should be sought in discovery. The necessary time frame for each type of document will vary from category to category. For example, the necessary time frame for records of major repairs should be substantially longer (perhaps even years) than the INSP TS and acetone ACA records.

Part Three: “Electronic Data Management”

DPS has begun taking a new position with respect to reports generated from its electronic data. For decades, TS’s provided and defendants regularly obtained reports created from the electronic data. These reports were basically printouts of spreadsheet data and included such useful information as actual measured values when the reference solution was out of tolerance and error codes for any test in which there was an error. For decades, TS’s preached that defendants did not need individual breath test slips because TS’s preferred just to provide the breath test log generated from the electronic data. These logs allowed voluminous data to be viewed in a summary fashion that made it more useful and user friendly. DPS has now done an about-face and is instructing TS’s not to produce the breath test logs that they have long represented was all the defendants really needed in discovery. The new desire to only provide test slips is nothing more than an effort to limit information dissemination that could be useful in the defense of a breath test case.13

Section 3.1 sets out how useful the electronic data can be. Section 3.1.2 governs when a TS may manually enter data into the database in place of electronic data. The ability to manually enter data is part of what allowed Dee Wallace (a former technical supervisor) to fabricate on-site inspection records.14 Following this debacle, DPS required specific and explicit permission before any TS could manually enter or change data. Regrettably, the SOGs have eliminated the protections put in place to prevent the manual fabrication of records.

Section 3.2 governs TS monthly reports. Section 3.2.1 and its subsections govern the processing of complete and incomplete monthly TS reports. Counsel should seek discovery of these reports—both complete and incomplete.

Part Four: “Record Retention and Release”

Part Four governs record retention and release. Section 4.1 provides that test records produced at evidential testing location shall be kept for five years plus the current year. Section 4.2 provides that records “shall be provided by the Technical Supervisor when requested through open records requests, discovery motions, and subpoenas.” Section 4.2.1 provides that “any document held in the possession of the technical supervisor is considered to be a government document as defined by Texas Government Code § 552.002,” and that records can be either electronic or paper. Texas Penal Code § 37.10 makes it a felony when a person “intentionally destroys . . . a government record.” Counsel should investigate whether a crime has occurred any time a TS destroys the records created by the Intoxilyzer each time an “Autocal” is performed on the machine. (See the discussion below regarding calibration and “Autocal” records.)

Section 4.3 provides that “[e]lectronic data is important . . .” Section 4.3.1 seeks to implement DPS’s change of heart regarding breath test logs. In doing so, however, it established that there is meaningful data in the electronic records that does not appear on breath test slips. Although this section “recommends” that only printed test records be submitted to comply with open records requests, discovery motions, and subpoenas. This section further expressly recognizes that documents generated from the database are “summaries or reports.” This section should be used by lawyers when a TS claims that they cannot produce such summaries or reports—especially since they have been doing so for decades and have long claimed that these reports were the only information we really needed.

The reality is that these database summaries and reports contain information that does not appear on breath test slips and can form the basis for arguments that individual machines and tests have problems. DPS should not be allowed or permitted to dictate the form of court-ordered discovery contained in their database, especially when that information does not otherwise appear on breath test slips. Sections 4.4 and 4.5 go further and expressly recognize that database printouts do not always match the data on breath test slips, and that database reports can be generated to comply with open records requests and court orders. Section 4.6 contains a disclaimer that a TS is required to attach to database reports.

Part Five: “Breath Alcohol Instrument Calibration”

In common parlance, “calibration” is understood to be the process of programming a machine to accurately and precisely conduct its measurement function. Thus, for example, one could (at least partially) “calibrate” a bathroom scale by using the zero set knob to cause the weight designator needle to point directly at zero, as opposed to say the line for 10 pounds. While this would calibrate the machine to accurately reflect a result of zero when no weight was on the scale, true calibration of the scale would also require placing a known weight of say 100, 200, and 300 pounds on the scale and adjusting the scale so that it read 100, 200, or 300 pounds when that amount of weight was placed on it. In the scientific and metrology world, “calibration” encompasses not only the process of setting or adjusting the machine’s measurement function; it also includes a verification process: That is, once the machine has been programmed to “know” what amounts to 0, 100, 200, or 300 pounds, it is then necessary to determine how accurately and precisely the machine can measure other known weights within the zero to 300-pound range.15

In the Texas breath alcohol testing world, however, section 5.1 provides that “calibration” is used only to indicate the process of testing the accuracy, precision, uncertainty of measurement, and linear response of the machine’s measurements of known standards, and does not include the process of setting or adjusting how the machine determines its measurements. While this seems at least a bit peculiar, it is the product not only of misunderstanding, but also, and more directly, of a process built into the Intoxilyzer by its maker, CMI. CMI’s name for the process of programming or adjusting the Intoxilyzer to conduct its measurement function is called “Autocal.” Thus, the SOGs refer to an “Autocal” as the process by which the machine is taught what electrical response corresponds to various solutions, ranging from 0.00 to 0.40.

Section 5.2 provides that the “calibration” shall be performed prior to a machine being placed in service for the first time, any time the machine has undergone a calibration adjustment (an “Autocal” discussed below), or any other time as determined by the TS. Section 5.3 provides that a “calibration” shall be accompanied by the completion of the “Calibration Analyst Worksheet.” Section 5.3.1 provides that the “calibration” shall be accomplished with nominal reference values of 0.00, 0.04, 0.08, 0.16, and 0.40, in order (section 5.3.2), and that the solutions used for the process must be supplied by the Office of the Scientific Director. Section provides that the Office of the Scientific Director shall make available in digital format the documents necessary to establish NIST traceability, unbiased estimate, nominal value, and combined uncertainty of the reference sample solutions.

Section 5.3.3 provides detailed instructions on how to perform the “calibration.” This procedure requires each simulator to be at 34.0 degrees centigrade 6.2 degrees centigrade and that the temperature be confirmed with a NIST traceable thermometer ( The head space gas for each solution is tested 20 times (, and each calibration check must be printed ( The label from the nominal reference standard bottle must be affixed to the printed calibration check ( The printed calibration checks must be signed or initialed and scanned into digital format ( Only the final 15 calibration checks are recorded in the Calibration Analyst Worksheet ( All results for the 0.00 solution must be 0.00 ( The mean of the 15 analyses of the ethanol solutions must be within 0.003, or three percent, of the unbiased estimate of the standard ( The standard deviation of the nominal 0.04. 0.08, and 0.16 solutions must be less than 0.001 ( The standard deviation of the nominal 0.40 solution must be less than 0.002 (

Section 5.3.4 provides that if the process must be terminated before completion, all records will be maintained, and that a complete calibration procedure must be accomplished—i.e., they must start over, before a calibration Certificate is issued. Section 5.3.5 and 5.4 provide that once the calibration procedure is complete, all documents must be completed and signed and submitted for technical and administrative review by another technical supervisor using the Technical and Administrative Review Checklist. Once the process is complete and the calibration certificate is completed, all paper and electronic documents and files will be sent to and maintained by the Office of the Scientific Director (5.6).

Though the SOGs do not contain any specific requirements for the “Autocal” function, an understanding of it is necessary. The Intoxilyzer “Autocal” function is really quite simple. In order to “Autocal” the machine—i.e., adjust the prior calibrated values—the TS enters the password protected “Autocal” function on the Intoxilyzer. In preparation for the process, the TS will have prepared simulator jars with solutions ranging from 0.00 to 0.40 grams of alcohol per 210 liters of air at 34 degrees centigrade. There must be at least three different solutions and more is usually better. Four to five solutions are common. Once in the “Autocal” function, the machine will call for the TS to connect the jar containing only water, i.e., a 0.00 solution. The machine will sample the head space from this solution four times. The machine will exclude the first test result and will calculate an average of the electrical responses of the final three solutions’ measurements.

Basically, the machine has now been taught what electrical responses correspond to 0.00 grams of alcohol per 210 liters of air. This process is repeated with solutions that may include 0.02, 0.04, 0.05, 0.08, 0.10, 0.20, 0.30, and 0.40 grams of alcohol per 210 liters at 34 degrees centigrade, when prompted by the machine to connect that solution. Whatever quantity and values of solutions are used, the TS must use a 0.00 solution and a 0.40 solution. How many solutions between those values is left to the TS’s discretion, but two to three additional solutions are normal, and a 0.08 solution is most common simply because that is the threshold for per se intoxication. In each instance, the machine again samples the head space gas of each solution four times, excludes the first value, and calculates the average of the final three solutions. This “teaches” the machine what electrical response corresponds to the solution used.

The Intoxilyzers used in Texas also have a function that reports the results of the “Autocal” process. Almost all TS’s either turn off the function that causes this report to print or if the report is printed, destroy it. If the report is not printed, the machine destroys the underlying data and saves only a summary. Conceptually, one might reasonably question why a TS, with at least the tacit—if not express—approval of the DPS Scientific Director, would fail to print or would destroy the report produced by the machine. Though DPS posits other explanations, this author believes that these reports are not printed or are destroyed because the TS does not have the knowledge or expertise to explain these reports to a jury. In the 25-plus years I have been doing this, I have only had one TS actually turn over such reports. Copies of those reports are available on request. To make a very long story short, there is a great deal of data in these reports that appears to raise serious questions about the ability of this machine to consistently obtain similar results during the “Autocal” process: That is, the allegedly measured values often differ dramatically from the other results obtained by the machine. In any event, TS’s lack the knowledge and expertise to explain to a jury how—or even if—this report shows that the “Autocal” was successful or flawed.

Once the machine’s settings have been adjusted in accordance with the “Autocal” process, the value of an unknown solution introduced into the machine is determined by locating the point on the “line” where the unknown solution falls.

True calibration of the machine is not complete until the accuracy of the settings has been tested and confirmed. DPS and the SOGs refer to this verification process in part five of the SOGs as “calibration,” though, in reality, it is a check or confirmation of the calibration—i.e., the just-completed adjustment of the settings. This process involves again taking a variety of known and NIST traceable solutions and having the machine measure them. The goal is to see how accurately and precisely the machine will now measure a “known” solution. To test the accuracy and precision of the previously made adjustments (calibration or “Autocal”), the TS must again connect all the samples previously described, measure them repeatedly, and calculate the accuracy and precision of the results.

Some Ts’s use the same solutions to test the calibration as they used to calibrate or “Autocal” the machine. Doing so is fundamentally unsound, unscientific, and forensically indefensible. A simple example demonstrates the fallacy of using the same solution to calibrate and test the calibration. To teach (calibrate) my bathroom scale to accurately measure 250 pounds, I stand on it and adjust the measurement until it reads 250 pounds. Having done so, I then want to know how much I weigh, so I get back on the scale and see that it reads 250 pounds and conclude that I must therefore weigh 250 pounds. Of course, I have not proven that I weigh 250 pounds, just that the machine will repeat back what it was taught. If I want to know that the scale can truly measure 250 pounds, I have to use something different than what I used to calibrate it, and must know that the verification weight is truly 250 pounds. The same thing applies to checking the calibration on an Intoxilyzer.

Once the values from 0.00 to 0.40 are established, they are (conceptually) plotted on a graph in a way that establishes what is known as a linearity curve. Thinking graphically, a line is drawn through all of the plotted points, beginning at the 0.00 value and ending at the 0.40 value. Ideally, this should be a perfectly straight line. How close this line comes to actually being straight is called the “correlation coefficient.” Ideally, the correlation coefficient should be a value of 1.0, which would represent a perfectly straight line. As a practical matter, for various reasons, this “line” is never really completely straight (and is why it is called a curve not a line). To be clear, the “straightness” of the line should, however, result in a value that is very close to 1.0, with most scientific standards requiring a correlation coefficient of at least 0.999.

DPS does not, however, require any minimum correlation coefficient. One might speculate that no standard is set because it is doubtful that the Intoxilyzer could meet typical scientific standards under these circumstances. Indeed if the correlation coefficients that appear to be produced by the “Autocal” process are any indication, this machine does not have ability to consistently produce correlation coefficients of at least .999.

It goes without saying that all documents related to the “Autocal” and calibration verification process should be requested and obtained in discovery.

Part Six: “Thermometers Used in the Instrument Calibration Procedure”

Part Six establishes quality assurance guidelines for NIST traceable thermometers used in the calibration process of Part Five. In short, it is not enough that a thermometer (or any other device or solution) be NIST traceable at the time it was made. It is also necessary to ensure that the quality of the measurements remain valid over time.

Sections 6.1.1 and 6.1.2 provide that NIST traceable thermometers must be used in the calibration procedures and must be maintained in the TS’s calibration laboratory “which has limited access.” Section 6.1.3 provides that NIST traceable thermometers may only be calibrated by an approved vendor and once calibrated are suitable for use for one year. Section requires that the vendor must be an ISO 17025 accredited laboratory capable of issuing a calibration certificate establishing traceability to a NIST reference standard.16

In essence, DPS has decreed that once a thermometer is calibrated, it needs no other attention or internal quality control testing for one year. This portion of the SOGs provides no internal method of measured quality control—that is, testing internally to ensure that at the time of use, the thermometer remains capable of accurately measuring the temperature. The SOGs also provide no requirement for the outside laboratory to report whether the thermometer was functioning properly when they received it at the end of the year. Without knowing that the thermometer was accurately and precisely measuring temperature both at the beginning and the end of the year, there can be no assurance that it was doing so at any time during the year.


DPS’s adoption of the SOGs is a good start. It begins to put “science” into a program that it has long touted as scientific but that has just as long lacked almost anything close to real science. But, it is just a start. DPS needs to beef up the SOGs standards, particularly where they are below industry standards, needs to stop the practice of destroying “Autocal” records, and needs to adopt similar standards for the many other aspects of the breath alcohol testing program. DPS also needs to change the culture that seeks to limit documentary paper trails. If they are practicing good science and following the rules, they have nothing to fear from a paper trail.

Defense lawyers need to obtain, read, and understand the SOGs. They also need to seek and obtain the documentary evidence necessary to confirm or rebut the proper operation of all aspects of the breath alcohol testing program. Judges need to understand that unless and until any laboratory, including a breath test lab, can document its claims of valid results and procedures, there is no validity. That documentation and verification are necessary components not only of good science but of the adversarial system is inherent in the documentation required by the SOGs. The SOGs require documentation and proof because there is no other way to prove valid results. That DPS seeks to do so in these new SOGs validates the decades of claims that they should have been doing so all along.

Ronald Reagan got it right when he said, “trust but verify.” This concept is as applicable to the legal process and forensic laboratories as it is to issues in everyday life in the rest of the world. Part of the inherent cost in running any type of forensic program is the cost required to verify to the outside world compliance with required standards. Anything less does a disservice to the pursuit of justice. All sides of the bench and bar should at least be able to agree that justice is only served with verified reliable science that we all can be confident in, and that the risk of injustice is substantial when any participant shirks the responsibilities to verify.


1. See Stevenson v. State, 895 S.W.2d 894 (Tex. Crim. App. 1995) (citing and discussing the pre-1994 version of Tex. Rev. Civ. Stat. Ann art. 6701l-5 § 3, which provided:

(b) Analysis of a specimen of the person’s breath, to be considered valid under the provisions of this section, must be performed according to rules of the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to establish rules approving satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.

This portion of article 6701l-5 § 3(b) was later codified in § 724.016 of the Transportation Code. Though the exact language of § 3(b) does not presently appear in § 724.016, all codifications of prior revised civil statutes were adopted without any substantive change, even when different or less language was used. Tex. Trans. Code § 1.001 (“The program [codification of statutes] contemplates a topic-by-topic revision of the state’s general and permanent statute law without substantive change”).

2. Prior to the adoption and release of the SOGs, though every technical supervisor I have asked under oath about the existence of a rules or policy manual applicable to breath testing—apart from what is contained in the administrative regulations—has testified that no such document or compilation of documents exists, one prosecutor has produced such a document that purports on its face to be “Forensic Breath Alcohol Laboratory: Office of the Scientific Director Policy Statements.” Resolution of what appears to be a conflict between the sworn testimony and the document I was given will have to occur in the cases still pending in which such testimony was given.

3. 37 TAC § 19.4(f). Approval of any breath alcohol testing program is contingent upon the applying agency or laboratory’s agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.

4. See Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986); May v. State, 784 S.W.2d 494 (Tex. App.—Dallas 1990, pet. ref’d).

5. All emphasis is added unless otherwise noted.

6. Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986); Davis v. State, 949 S.W.2d 28 (Tex. App.—San Antonio 1997, no pet.). See also Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996).

7. 37 TAC § 19.4(g). Approval of a breath alcohol testing program may be denied or withdrawn by the scientific director if, based on information obtained by the scientific director, a designated representative of the scientific director, or a technical supervisor, the approved agency or laboratory fails to meet all criteria stated in this section.

8. In the words of the court, “Thus, assuming without deciding that the oral directive could qualify as a rule of the DPS in addition to the requirements of section 19.4(c), the terms of the directive as described by Finkley did not apply to Amend’s test.” It does not appear that Amend argued or that the court reached the issue of whether the oral directive constituted “any directives, orders, or policies” under 19.4(f).

9. “Autocal” is a function on the Intoxilyzer that sets and adjusts the calibration. The “Autocal” process is more thoroughly discussed below. On some occasions it is shown as “AutoCal.”

10. While it might seem strange to think that a TS would conduct business regarding an evidential machine at the TS’s home, some contract TS’s do just that.

11. The Texas standard of three percent is less demanding than the two percent standard required by the National Safety Council Committee on Alcohol and Other Drugs. The National Safety Council Committee on Alcohol and Other Drugs is an organization that sets industry standards for simulator solutions used in evidential breath testing. Interestingly, Mack Cowan, the Scientific Director of Texas’ breath alcohol testing program, was recently Chair of this committee. These standards may be found online at: The two percent requirement is on page 99 of the document. Under this standard, a nominal 0.08 solution must measure to no less than .0784 and no more than .0816, meaningfully different than Texas’ lesser standard of no less than 0.077 and no more than 0.083.

12. ACA records are records reflecting an Air Blank, a Calibration Check, and then an Air Blank, hence ACA. The nomenclature “ACA” reflects the sequencing of the testing on those test slips, as opposed to the sequencing that appears on normal breath test slips.

13. Despite this new directive, DPS can and does still produce such reports when ordered by the court. This author received one on April 24, 2012.

14. Dee Wallace was a technical supervisor covering several small cities between Houston and Galveston. To make a long story short, over the course of several years, she routinely altered records to make it appear as though she had performed maintenance and changed solution when in fact she had not done so. Following discovery of her fraud, she was prosecuted and convicted. DPS invalidated several thousand breath test results as a result of her activity. More information about her can be found with a simple Google search.

15. It would never be scientifically proper to use the same items that were used to calibrate the machine to test the calibration. In the breath testing context, whatever solutions are used to “calibrate” the machine should not then be used to test or confirm the accuracy and precision of the machine’s ability to measure unknown values. Instead, other solutions of known (and confirmed) values should be used.

16. ISO 17025 is the global quality standard for testing and calibration laboratories issued by the International Organization for Standardization (ISO). This standard is what controls and forms the basis for ASCLD-LAB’s (American Society of Crime Lab Directors—Laboratory Accreditation Board) current “International” accreditation of forensic laboratories.

The Most Powerful State Agency You’ve Never Heard Of

The Texas State Securities Board (“TSSB”) is an independent administrative agency; it is not part of the Office of the Attorney General (“AG”) or any other agency. The TSSB has approximately 100 employees, and approximately half of those employees have at least a bachelor’s degree. At any given time, about 5 to 10 employees have accounting degrees or are Certified Public Accountants (“CPA”) and about 25 employees are attorneys. The mission of the TSSB is to protect Texas investors.

One of the primary ways the TSSB purports to protect Texas investors is by investigating and prosecuting those individuals it believes have sold unregistered securities, sold securities without a license, and/or engaged in securities fraud. There are numerous state and federal exemptions to registration that are beyond the scope of this article. However, the general rule is that securities offerings must be registered, and anyone that sells or offers to sell securities must also be registered. Offering for sale and/or selling unregistered securities with no applicable exemption is a third-degree felony. Selling securities without a securities license is also a third-degree felony. In other words, you can be charged with two third-degree felonies for the exact same transaction—selling unregistered securities and selling securities without a license.

The TSSB also frequently prosecutes individuals for securities fraud. So what is securities fraud? First, we have to decide what is a security. Most people think of stocks and bonds as securities and not much else, but the definition is much broader. “Congress’ purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called.” SEC v. Edwards, 540 U.S. 389 (2004). Without getting too technical, if there is an investment of money, it may be a security. Some unusual things that have been found to be securities include investments in sale leasebacks, worms (yes, the things in your garden), ATMs, and payphones.

Next, we must decide what is fraud for purposes of securities fraud under the Texas Securities Act. The definition that the TSSB usually uses is intentional failure to disclose a material fact. A material fact is anything a reasonable investor would want to know when deciding whether or not to invest. The most common thing individuals are prosecuted for failing to disclose is their criminal history. The reason this is routinely done is so that the criminal history of the defendant can be discussed during the case in chief, not just the punishment phase. Witness after witness will take the stand and testify that had they known about your client’s criminal history, they would have never invested. Needless to say, the TSSB’s conviction rate is extremely high.

In addition, like any good plaintiff’s lawyer, the TSSB forum-shops. Some jurisdictions will appoint TSSB attorneys as special prosecutors, other jurisdictions will handle the case themselves after a referral from the TSSB, and some jurisdictions will ignore the referral altogether and do nothing. The TSSB generally prefers jurisdictions where punishments are severe and TSSB attorneys will be appointed special prosecutor. For example, in 2009 and 2010, the TSSB prosecuted individuals who were sentenced to 99 years in prison.

Furthermore, the TSSB almost always has jurisdiction. It is extremely rare that a securities offering will not touch Texas in some way and give the TSSB jurisdiction. For example, is there a Texas entity, an office in Texas, are there any Texas investors, any bank accounts in Texas, any meetings or advertisements in Texas, any telephone calls, faxes, emails, or mailings to or from Texas? Moreover, the defendant is almost always charged with a first-degree felony. If the amount involved is $100,000 or more, it is a first-degree felony. And the TSSB can aggregate the investors and the sales and the offers for sale. Because of this, it is extremely rare that the amount involved will ever be less than $100,000.

Some of you may be thinking, I know very little about securities fraud or the Texas Securities Act, but I remember something about federal exemptions and federal pre-emption. You are never exempt from the anti-fraud provisions of the Texas Securities Act and the anti-fraud provisions of the Texas Securities Act are never pre-empted by federal law.

A Short Memo on the Community Caretaking Function

We have the community caretaking function in Texas, and I suppose that makes some sense. After all, these things come up with the officer approaching someone in a public place and saying something like, “Can I help you, ma’am?” The problem is that the citizen may not want any help. What allows the officer to continue to bother the citizen who wants to be left alone? What are the guidelines that the officer is to follow?

The answer comes from Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999). In that case the deputy sheriff saw a passenger vomiting out the window of a mov­ing vehicle. No traffic offense was being committed, but he stopped them anyway as a community caretaker. The Court of Criminal Appeals said that the factors relevant in determining whether or not the intrusion was reasonable are (1) the nature and level of the distress exhibited by the individual, (2) the location of the individual, (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer, and (4) to what extent the individual, if not assisted, presented a danger to himself or others. The Court also said that the community caretaking function was to be very narrowly applied, and that in only the most unusual of circumstances is any warrantless search justified. The Court of Criminal Appeals remanded the case to the 3rd Court of Appeals to let it decide whether or not these facts were good enough to justify the stop. On remand the 3rd Court said, “Nope, not good enough.”

To me, this means that the court is serious about a couple of things. One is that this doctrine is to be narrowly applied, and the other is that it is absolutely fact driven—and the trial and/or lower appellate courts are to decide if the facts of the individual case justify the intrusion on the citizen. Andrews v. State, 79 S.W.3d 649 is a really good example of that. It is a Waco Court of Appeals case from 2002. A DPS trooper saw Mrs. Andrews leaning out of the open passenger door of a stopped vehicle on Interstate 45 about 1:00 in the morning and she was vomiting. Before he could get to them, the Andrews started to drive off. The officer wouldn’t let them, and Mr. Andrews, the driver, was charged with DWI. The Waco Court looked at the 4 factors listed above and found that the stop was not justified by the community caretaking function. In analyzing the facts, the Court does put more emphasis on factor 1—level of distress—than the other factors. This makes sense too. If the officer saw a man with a bleeding head wound sitting in a dark ally behind a strip joint, it is pretty easy to understand why the officer would need to approach the citizen and insist that he visit with him despite the citizen’s expected protest. The bleeding head wound sort of pulls the other factors along with it. The case that says the first factor is the most important is Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002). On page 278 of Corbin is where you find the Court of Criminal Appeals saying that the first factor is the most important.

In our particular case, I think the State is in trouble on all the factors. The officer who is eating at Denny’s sees a crying woman in the parking lot. She is not injured, it is a well-lit parking lot of a restaurant open 24 hours a day, and before the officer ever gets to her she voluntarily gets into a vehicle and starts to leave. The distress level is very low, the location is a safe one, there is someone who can help her other than herself (that being the driver of the vehicle that just picked her up), and she doesn’t appear to be a danger to herself or others. I don’t necessarily blame the officer for making the decision to check things out, but once she decided to leave on her own, he had to let her (and the driver) go. If we change the facts up a little bit and said he was already talking to her when the truck pulled up and the driver opened the door and said, “Get in, let’s go,” it would be a closer call. In my opinion, this is a loser for the State. It is my hope that you will agree to refuse this case rather than have us spend the time and effort that a motion to suppress would take.

In this particular case, the prosecutor agreed with Tip and the case was dropped.

June 2012 Complete Issue – PDF Download



20 | Pictures from the Rusty Duncan Advanced Criminal Law Seminar – By Tracy Casares
26 | Breath Testing in Texas: A New Paradigm | Standard Operating Guidelines for Technical Supervisors: A Good Start – By W. Troy McKinney
36 | The Most Powerful State Agency You’ve Never Heard Of – By James Zier
38 | A Short Memo on the Community Caretaking Function – By Tip Hargrove

7 | President’s Message
9 | Executive Director’s Perspective
11 | Ethics and the Law
15 | Federal Corner
18 | Said & Done

4 | TCDLA Member Benefits
5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: Outside the Box – By Lydia Clay-Jackson


Your electing me TCDLA’s President is truly a humbling experience. Thank you so much for the honor you have bestowed upon me. My TCDLA certificate, a document I am very proud of, bears the names of Louis Dugas Jr. as President, and J. A. Bobo as Secretary. When I received my membership certificate, I never thought that one day I would affix my name, to these certificates, as President of this august body of steadfast Defenders of the Rights of those accused or convicted of criminal actions.

I was born the second of five children and reared in New Mexico. Growing up without highway speed limits and vistas that were obstructed only by snow-covered mountain peaks, I learned to think and act “outside the box.” Much to my parents guarded admiration! I was sent to Cottey College, a women’s college in Nevada, Missouri, to give me some life perspective. Next came the University of Texas at Arlington, which was my wakeup call to reality. According to my parents, I had been on a two-year vacation, and an endless college life was not a career choice available to me.

After college work was also very educational. Work at TBPP, Wisconsin Bureau of Correction, and Montana Corrections Aftercare lead me to Bates College of Law (now University of Houston Law School). My first year there saw my Property Professor giving me career advice: “Law is not for you.” Challenge accepted, I opened my practice in ’85 in Conroe, Texas, after doing a demographic study and determining I would be the only Black American lawyer between Houston and Dallas going up either Hwy 59 or I-45. I would have the added bonus of going “against” the traffic every morning. What an intelligent decision! I was board certified in Criminal Law in ’96.

Dwight Jackson—not Clay-Jackson—and I have been married since ’76, and he is retired. I have 162 hats and have worn a hat to court every day since 1989.

There are so many things I would like to accomplish as your President, but members of the Texas Legislature will convene in six months and they will need ALL of our concerted efforts to keep them on the track of justice and fairness. In this spirit, I am asking that if you know a member of the 83rd Texas Legislature, regardless of which side of the aisle they may sit, please inform our lobbyist Allen Pace or our Legislative Committee Chair Mark Daniels (our 32nd president). With your help, the vote they cast may inure to our benefit and thus to the benefit of all in our Texas courtrooms.

I am sure the part of the state where I have a large part of my practice is not unlike yours. Regrettably, some of the men and women who put their lives on the line, in order to allow us to do what we do, find themselves in need of our services. Their life experiences may have played a part in their current circumstances. To this end, I have asked Captains Terri Zimmermann and Michael Gross to co-chair our new Veteran Affairs committee. This committee will be a great resource—if not in giving alternatives to criminal dispositions, then in understanding our clients better and in presenting effective theories in their cases.

I have asked our Northern Federal District Public Defender, Richard Anderson (also our 21stpresident), to chair the Former Presidents Committee. These remarkable women and men, who laid the foundation upon which I stand, will have as one of their committee responsibilities to find outside monies for scholarships and seminar enhancement. (How many times have you heard or said, “Bring back the cookies”?) Additionally, because they were so good at it during their tenures, they will also use their charm and persuasive abilities to find more and new benefits for TCDLA. My goodness, with institutional history going back into the early ’70s, this committee just cannot miss. In fact, you might recall that Randy Wilson (our 35th president) was responsible for getting Southwest Airlines to give us discounts; I have full confidence that he will again work his charm.

You as members of TCDLA may only be as effective as the information you have. To this end, you will be able to view online the Board agenda one month before the meeting—just as you will be able to read the minutes afterwards. The agenda will wet your curiosity about attending the meetings, and the minutes will allow you to know just how hard your Board members and officers are all working on your behalf.

I remember the “frying pan” commercial, but I am better in that I have asked our five other officers, and they have each graciously agreed, to be the ex-officio members of certain       committees. I believe this organizational format will lend itself to being most beneficial to us all.

      We shall have a wonderful year by remembering to:

Live a balanced life—
 Learn some and think some
  And draw and paint and sign and dance
   And play and work everyday some.
    Take a nap every afternoon.
And when a colleague goes into that Court arena
      Stick with them and be aware of wonder.

—Some license taken, from R. Fulghum, All I
Really Need to Know I Learned in Kindergarten

Good Verdicts to you all.

Executive Director’s Perspective: Rusty Recap – By Joseph A. Martinez


I want to thank Gary Trichter, our 41st President, for his steadfast leadership over the past year. Gary spent the last year in service to the TCDLA membership. His contributions will continue to impact TCLDA into the future. He leaves TCDLA a better association. He was fond of saying that at the end of his term he would, like the old cowboy, just ride into the sunset. Well, he may just do that, but he will continue to contribute as the cowboy past president.

Please join me in giving Gary a big TCDLA thank you.

Lydia Clay-Jackson was sworn in as our 42nd President on June 9, 2012. Please join me in congratulating Lydia as she takes the reins from Gary to lead TCDLA and our almost 3,200 members.

Special thanks to our course directors, Jeanette Kinard, Jack Stoffregen, and Jimmy Gonzalez, for the Public Defender Training held in San Antonio in June. Thanks to the efforts of all of the Chief Public Defenders in the State we had 72 participants.

Immediately following the Public Defender Training, Gary Trichter led a discussion with the Chief Public Defenders and/or their designee and members of the TCLDA board and Executive Committee on indigent defense issues and how TCDLA members can work together to accomplish providing the best defense for clients who are indigent. Lydia Clay-Jackson has indicated we will have follow-up meetings to continue this discussion.

Special thanks to our course directors and associate course directors for this year’s 25th Annual Rusty Duncan Advanced Criminal Law Course in San Antonio: Troy McKinney, Doug Murphy, Stephanie Stevens, Sharon Curtis, Sarah Roland, and Marjorie Bachman. These TCDLA members had been planning, preparing, and working on this year’s Rusty Duncan for the last year. Thanks to their efforts we had a very successful event. We had a total of 826 participants and 32 exhibitors.

Special thanks to Christine and Gerry Goldstein for hosting the Annual Pachanga at their home. Each year they open their home to 500+ lawyers.

Special thanks to Melissa Schank, Assistant Executive Director, who has worked tirelessly on all of the events of Rusty Duncan. Thanks to her efforts we had an exceptional week. Special thanks to all of your TCDLA staff, who worked many hours before, during, and after the events of Rusty Duncan.

Mr. Roland Dahlin II and Mr. Charles McDonald were inducted into the TCDLA Hall of Fame. Mr. Dahlin was former Public Defender for the Eastern District in Houston. Mr. McDonald was past president of TCDLA and past chair of Texas Criminal Defense Lawyers Educational Institute. He was responsible for buying the first TCDLA Home Office in Austin in 1981.

The following awards were presented during the Rusty Duncan event and/or the Annual TCDLA Membership Meeting:

Percy Foreman Lawyer of the Year
Troy McKinney (Houston)

Charles Butts Pro Bono Lawyer of the Year
Windi Akins Pastorini (Houston)

Spirit of Justice
John Raley (Houston)
Nina Morrison (New York)
Cynthia Orr (San Antonio)
Gerry Goldstein (San Antonio)

Minuteman Strike Force Awards
Michael Heiskell (Fort Worth)
Rob Fickman (Houston)
JoAnne Musick (Houston)
Gerry Goldstein (San Antonio)
Cynthia Orr (San Antonio)
Buck Files (Tyler)
Stanley Schneider (Houston)
Bobby Mims (Tyler)
David Moore (Longview)

Honorary Members
John Raley
Shirley Butts

President’s Award

See list of recipients below

Rusty Hardin was unable to speak at Rusty Duncan. In his place, Gary Trichter invited Ret. Col. William Cole, one of five remaining crew of the Doolittle raid on Tokyo in April 1942. Col. Cole was General Doolittle’s co-pilot. Gary recognized all of the veterans in the Ballroom. A video clip from a panel discussion with four of the remaining Raiders recently done at the World War II Museum in New Orleans was shown. A Q&A session then followed.

Former Heavyweight Champion of the World George Foreman presented to the grateful audience on the need for a cause in order to win.

On June 1, 2012, the TCDLA board approved the purchase of the current Home Office, located at 6808 Hill Meadow Drive in Austin, Texas, from the Texas Criminal Defense Lawyers Educational Institute. TCDLA held the official closing of the sale onstage at Rusty Duncan. We also had a mortgage burning ceremony at the Goldstein Pachanga event.

A DVD of this year’s Rusty Duncan can be purchase on the TCLDA website. All tracks have been recorded.

TCDLA thanks TCDLEI for this opportunity. TCDLEI has always supported TCDLA. This year TCDLEI provided grant funds to provide 35 scholarships to Rusty Duncan.

Please make plans to join us at next year’s 26th Annual Rusty Duncan Advanced Criminal Law Course, to be held June 13–15, 2013, in San Antonio. The Hyatt Regency will be the host hotel with a new block of rooms at the Hyatt Grand. The focus will be preparing lawyers for the legal specialization examination.

The TCLDA Legislative Committee met in San Antonio to begin planning for the upcoming 83rd Texas Legislative Session. This coming session will provide a unique opportunity for legislation concerning the rights of the accused in Texas. Our TCDLA Legislative listserve will up and running shortly.

The TCLDA Annual Membership Meeting was held on June 9, 2012, immediately following the Rusty Duncan event in San Antonio. The following motions were discussed and/or voted on:

MOTION: Minutes

      Approve minutes from March 10, 2012, TCDLA Board Meeting in New Orleans. Motion made by Gary Trichter, seconded by Sam Bassett. Motion carries.

Gary Trichter tabled the discussion on proposed changes to the TCDLA bylaws until the next board meeting.

MOTION: Defense Initiated Victims Outreach (DIVO) Resolution

      Resolution to support with Capital Murder cases. Motion made by Sam Bassett, seconded by Lydia Clay-Jackson. Motion carries.

MOTION to approve the 2012–2013 officers, plus new and reappointed Board Members.

      Motion made by Emmett Harris, seconded by Sam Bassett. Motion carries.

Please join us in thanking the following outgoing TCDLA board members, who have served membership by serving on the TCLDA board of directors:

Robert Barrera (San Antonio)
Keith Hampton (Austin)
Craig Henry (Texarkana)
Doug Murphy (Houston)
Kelly Pace (Tyler)
George Scharmen (San Antonio)
Fred Stangl (Lubbock)
Warren Wolf (San Antonio)

Please make plans to join us for the following summer CLE:

  August 1–2  CDLP, Innocence Work for Real Lawyers: How to Get Innocent Clients Out of Prison, Austin

    August 10  CDLP, A Primer for Court Appointments, Austin

August 16–17 TCDLA, 10th Annual Top Gun DWI Seminar, Austin

    August 31  CDLP co-sponsored with San Antonio Criminal Defense Lawyers Association, San Antonio

Good verdicts to all.

Ethics and the Law: Raise Your Right Hand


The past month has been busy with calls to the ethics hotline. Many calls have been regarding actions of judges and prosecutors and a few about fellow lawyers. Anytime you feel improper action is being taken by a judge or prosecutor, you are welcome to call the hotline. Lawyers are bad about just complaining and not taking any action. There are members of this organization who will help you take action. As I have mentioned before, no matter where you are, unless you do something besides talk about it, the bad behavior continues. The power given to judges and prosecutors will go unchallenged unless you take action. You may not win a popularity contest, but your client is the only one you need to be worried about. The “that’s the way we have always done it” or the “that’s the way it’s done here” won’t cut it. When you see improper behavior, report it. We have plenty of brave souls ready, willing, and able to help.

Robert Fickman, West Texas lawyer now in Houston, is one of the men who will stand up and help you. He is a real Don Quixote. He has filed and helped file several judicial complaints in the past few years. You don’t have to grin and bear it. Take action against these overbearing individuals. Call the hotline, and if we don’t have the answer, we will find someone who does. There are hard-working men and women all across the land who get up, go to work, take care of their family, and make one mistake that, depending on the severity, can change their lives forever. They get involved in the legal system, and our job is to make sure their rights are protected. Do not let them be abused because they may be poor or not the brightest light in the room. Spend time with your clients and their family. Find out what causes the misbehavior and help do something to correct it. NA or AA meetings are good places to start. One of my childhood friends has a daughter who was always making bad decisions that put her in the legal system. After years of legal problems, it was discovered she had an orange-size tumor in her brain. That went a long way to explaining the reason for the poor decisions. Get help for your clients. They are more than just dollar signs.

Some well-respected lawyers chose not to be concerned about what the judiciary thought. Warren Burnet, one of our greatest lawyers, once went to the funeral of a judge with whom he had many dealings. It was no secret there was no love lost between them. When asked why he went to the funeral, Lawyer Burnet replied, “I wanted to make sure the bastard was dead.”

The “why can’t we just get along” won’t cut it. We all can’t just get along when people ignore the Constitution. Do not sell yourself short. It takes a certain amount of intelligence to get a law degree and pass a bar exam. We can’t all be Richard “Racehorse” Haynes, but we can all do our best to represent our clients. Buck Files, one of our TCDLA members, is now President of the State Bar, and is a man with honor and integrity. He will make sure we are not like Rodney Dangerfield—not getting any respect. When you see fellow lawyers going off the deep end, don’t ignore them. The State Bar does have a few good things besides discounts on motel rooms and car rentals, one being the Lawyer Assistance Program (800-343-8527).

Reach for the brass ring and do all that you can for your client. Write an article for the bar journal, get involved in your local criminal bar association, and learn from experienced lawyers. If we work together, we can make positive changes, and the next time when we see the bar journal, we can give the 100,000 members of the bar something to read about other than obituaries and disciplinary actions. Remember, every time a judge or prosecutor ignores the Constitution, they are showing disrespect for all the men and women who served their country in the military. When you see people like Jack Zimmerman, Bobby Mims, or any other veteran, make a point of thanking them for their service to our great country.

Phone Numbers for the Hotlines:

Lawyer Assistance Program       1-800-343-8527
TCDLA Hotline                           512-646-2734
HCCLA Hotline                          713-518-1738
State Bar Lawyer’s Ethics Hotline     1-800-532-3947

The oath for lawyers is to the client and Constitution, while the oath for judges and elected/appointed officers is to the Constitution and laws. The military oath and oath for lawyers are very similar. A lawyer’s oath is to the client and Constitution, not the judge or prosecutor.

Lawyer’s Oath:


      I, ___________, do solemnly swear that I will support the Constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my clients to the best of my ability. So help me God.

Oath for Judges and elected/appointed officers:

      I, ____________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ____________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

Military Oath:

                I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

Federal Corner: “The Community Caretaking Exception to the Fourth Amendment” – By F. R. Buck Files Jr.


Alexander Frank McKinnon could not have read Burglaries for Dummies. If he had, he would have paid attention to rule 46: “When driving around looking for houses to burgle, make certain that your vehicle’s inspection sticker is valid.” Because of his inattention to detail, McKinnon is now serving a sentence of 30 months in a federal prison.

In affirming his conviction, a panel of the United States Court of Appeals for the Fifth Circuit held that:

  • A police officer’s decision to impound a motor vehicle which was being driven with an expired registration sticker by a motorist who could not produce a valid driver’s license was reasonable under the Fourth Amendment;
  • An inventory search of the vehicle was constitutionally proper; and
  • The police officer’s subjective motivations for impounding and conducting inventory search of the vehicle were irrelevant.

United States v. McKinnon, ___ F.3d ___, 2012 WL 1320242 (Fifth Cir. 2012)[Panel: Circuit Judges Benavides, Stewart, and Graves (Per Curiam)]

[The Facts]

      Houston Police Officer Salam Zia observed an automobile being driven by McKinnon in a neighborhood where a number of homes had been burglarized. Zia noticed that the vehicle’s registration sticker had expired. He stopped the vehicle and asked McKinnon to produce his driver’s license. McKinnon told the officer that he did not have a driver’s license and that his name was “Alex McKinney.” A computer query did not produce any search results for that name. When Zia ran a search of the license plate number, he found that the vehicle was not registered to an “Alex McKinney.”

      Zia, believing that McKinnon had provided false information to him and that he and the passengers in his vehicle were looking for houses to burglarize, arrested McKinnon for failing to produce a Texas driver’s license. He then decided to have McKinnon’s vehicle towed. In accordance with HPD’s towing policy, he conducted an inventory search and discovered a loaded revolver. McKinnon was indicted for violations of 18 U.S.C. §§ 922(g)(1)[Felon in possession of firearm] and 924(a)(2)[Felon in possession of ammunition].

[Proceedings in the District Court]

      McKinnon’s lawyer filed a motion in the United States District Court for the Southern District of Texas to suppress evidence that the revolver had been found in McKinnon’s possession. During a hearing on the motion, Zia testified:

…the reason why I decided to the write the report for not having an operator’s license was because I believed that he was providing me with false information, and at that point I thought there could have been some other—you know, maybe, possibly, some evidence in the vehicle. So, I arrested him and, subsequent to that, inventoried the vehicle.

      At the conclusion of the hearing, Judge Sim T. Lake III denied the motion to suppress the evidence. McKinnon entered a conditional plea of guilty, reserving the right to appeal Judge Lake’s order denying his motion. Judge Lake assessed punishment at 30 months confinement and McKinnon timely appealed.

[The Defendant’s Position on Appeal]

      On appeal, McKinnon challenges the district court’s denial of his motion to suppress the firearm and ammunition discovered during an inventory search of the vehicle he was driving. Specifically, McKinnon argues that the HPD’s towing policy affords officers unconstitutional discretion in deciding when to tow a vehicle as a nonconsent tow. McKinnon further claims that Zia’s inventory search of the vehicle was unconstitutional because it was a purposeful and general means of discovering evidence, in violation of the Fourth Amendment. In sum, McKinnon maintains that Zia had complete discretion in deciding whether to tow, leave the vehicle parked, or permit another to leave with it. Those options, he argues, afforded Zia unconstitutional discretion in deciding whether to inventory.

[From the Opinion]

      The Per Curiam opinion of the court contains, in part, the following:

A. The Impound

[The Fourth Amendment]

 The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Warrantless searches and seizures are ‘per se unreasonable unless they fall within a few narrowly defined exceptions.’” United States v. Kelly, 302 F.3d 291, 293 (5th Cir.2002). One such exception that courts have recognized is the “community caretaking” exception.


[The Community Caretaking Exception]

 The origin of the community caretaking exception is found in the United States Supreme Court’s decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In Opperman, the Court noted that impoundments by the police may be in furtherance of “public safety” or “community caretaking functions,” such as removing “disabled or damaged vehicles,” and “automobiles which violate parking ordinances, and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic.” Id. at 368, 96 S.Ct. 3092 (internal citation omitted). The Court further noted that the “authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” Id. at 369, 96 S.Ct. 3092.

 Approximately ten years after Opperman, the Court again touched on the subject of a police officer’s decision to impound a vehicle in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Interpreting Opperman, the Court stated:

[n]othing in Opperman [ ] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it.

Bertine, 479 U.S. at 375, 107 S.Ct. 738.


[When Does the Community Caretaking Exception Apply?]

 Since Opperman and Bertine, we have focused our inquiry on the reasonableness of the vehicle impoundment for a community caretaking purpose without reference to any standardized criteria.


 In considering whether this exception applies, our constitutional analysis hinges upon the reasonableness of the “community caretaker” impound viewed in the context of the facts and circumstances encountered by the officer. See Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1987) (“whether a search or seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case.”).


[Zia’s Decision to Impound the Vehicle Was Appropriate]

 In this case, Zia’s decision to impound the car was reasonable under the Fourth Amendment. It is undisputed that the neighborhood in which the stop occurred had experienced a series of burglaries. Although these were house burglaries, there is nothing to suggest that the vehicle would not have been stolen or vandalized if left parked and locked at the scene. By impounding the vehicle, Zia ensured that the vehicle was not left on a public street where it could have become a nuisance, and where it could have been stolen or damaged. Thus, Zia’s conduct falls within the community caretaking function.


B. The Inventory

[The Three Prong Analysis of an Inventory Search]

 An inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with “(1) protecting the property of the vehicle’s owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger.” Lage, 183 F.3d at 380 (citing United States v. Hope, 102 F.3d 114, 116 (5th Cir.1996)). These standardized regulations and procedures must “sufficiently limit the discretion of law enforcement officers to prevent inventory searches from becoming evidentiary searches.” United States v. Andrews, 22 F.3d 1328, 1336 (5th Cir.1994) (citation omitted).

[The HPD’s Towing Policy]

Pursuant to the HPD towing policy,

Whenever an officer authorizes a nonconsent tow of a prisoner’s vehicle, the officer will personally conduct an inventory of items in the vehicle including any and all containers not secured by a lock, and will complete a wrecker slip. A detailed inventory list will be written on the wrecker slip. Officers must be specific in identifying inventoried items. General terms such as “miscellaneous property” will not be used.

Hous. Police Dep’t Gen. Order No. 600-10 (issue date July 29, 2008).


[The Adequacy of the HPD Towing Policy]

 McKinnon does not contend that Zia did not follow this policy. We are therefore faced with considering only the adequacy of the policy itself. Relying upon the three considerations set forth in Lage, supra., we conclude that the policy is constitutionally adequate. By its clear terms, the policy is consistent with preserving the property of the vehicle’s owner, ensuring that the police protect themselves against claims or disputes over lost or stolen property, and protecting the police from danger.


[The Reasonableness of Zia’s Inventory Search]

 Because the inventory search in this case was conducted pursuant to this constitutionally adequate policy, it was reasonable and thus does not violate the Fourth Amendment. Lage, 183 F.3d at 380. The district court, therefore, did not err in denying Mc­Kin­non’s motion to suppress.


[Zia’s Subjective Motivations for Conducting the Inventory Search]

 In this case, McKinnon fails to develop any persuasive reasons for reversing the district court’s judgment. He does, however, raise one issue that warrants brief mention. McKinnon argues that Zia’s subjective motivation in conducting the search renders the inventory search invalid under the Fourth Amendment. In light of well-established case law:

the reasonableness inquiry under the Fourth Amendment is an objective one, wholly divorced from the subjective beliefs of police officers.
[S]o long as police do no more than they are ob­jectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.

Castro, 166 F.3d at 734 (internal citations and quotation marks omitted).


 Although Zia may have had an ulterior motive to search the vehicle, the inventory search was reasonable, and thus, remained valid under the Fourth Amendment.

My Thoughts

  • Community caretaking cases are about as rare as hen’s teeth. Most of us will never see one of these during our entire prac­tice of law.
  • The “subjective intent of the officer” cases are always the same. The officer knows that the defendant has done something illegal, but all he has is a hunch. He finds a valid ex­cuse for having an officer/citizen contact. This matures into the discovery of criminal conduct on the part of the de­fendant. He is arrested, prosecuted, and convicted. And the court says, “The subjective motive of the officer is irrelevant.” The defendant loses.
  • I liked the opinion in McKinnon. Zia played by the rules and made a good arrest. He then followed HPD’s towing and inventory procedures, which resulted in McKinnon’s arrest. His lawyer’s arguments before the district court and on appeal were well set out. The per curiam opinion was a good read and clearly enunciated the community caretaking exception and applied it to the facts of the case.
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