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February 2013

January/February 2013 SDR – Voice for the Defense Vol. 42, No. 1

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Voice for the Defense Volume 42, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Fifth Circuit

Reviewing Texas capital-murder conviction and death sentence, the federal courts were limited to the factual record that was before the state habeas court. Clark v. Thaler, 673 F.3d 410 (5th Cir. 2012).

        Abiding by Cullen v. Pinholster, 131 S. Ct. 1388 (2011), the Fifth Circuit denied habeas relief on D’s claim that defense counsel failed to investigate and develop mitigating facts. On the record, the state courts’ findings that counsel was not ineffective and, alternatively, that D was not prejudiced were not unreasonable. The Fifth Circuit also declined to issue a certificate of appealability on D’s remaining claims, namely that (1) trial counsel’s closing argument was ineffective assistance, (2) trial counsel was ineffective in his cross-examination of the State’s main witness because counsel “opened the door” to evidence that D had committed another murder, and (3) counsel was ineffective for failing to object to a comment the judge made.

D waived his right to appeal the district court’s ruling on whether D could limit his testimony because D elected not to testify. United States v. Turner, 674 F.3d 420 (5th Cir. 2012).

        When the district court ruled that D would be subject to cross-examination about a robbery for which he had not been federally charged and for which he wanted to invoke his Fifth Amendment privilege, D elected not to testify. As in Luce v. United States, 469 U.S. 38 (1984), D’s decision not to testify made it impossible to evaluate whether D was harmed.

        In Hobbs Act robbery/carjacking/firearms trial, the court may have erred in refusing to allow D to put on at least one of two proposed surrebuttal witnesses to discredit a supposed jailhouse confession by D, evidence of which came only in the government’s rebuttal case. However, even if this was error, the error was harmless based on the limited usefulness of the proposed surrebuttal evidence as well as the “overwhelming” evidence of guilt.

        District court erred in giving aiding-and-abetting instruction with respect to carjacking counts. Though 18 U.S.C. § 2 was cited in other counts of the indictment, it was not specifically cited in those counts; nor was there aiding-and-abetting scienter evidence that D, if not the principal, shared the intent of the principal. However, reversal was not required because no evidence would have led the jury to convict on this erroneously submitted theory of guilt.

San Antonio police officers’ failure to knock and announce prior to executing a search warrant on Ds’ home violated the Fourth Amendment; the failure could not be justified by exigency or dangerousness to the officers. Bishop v. Arcuri, 674 F.3d 456 (5th Cir. 2012).

        Because the rights violated by the detectives were well-established at the time of the execution of the warrant, the lead detective was not entitled to qualified immunity. Moreover, contrary to the district court’s determination, there was a genuine issue of material fact as to whether the City should be held liable for the police department’s policy respecting no-knock entries. The Fifth Circuit reversed the summary judgment for the detective and the City and remanded.

The jury reasonably found that Mississippi law enforcement did not violate plaintiff’s right to a prompt probable-cause determination after arrest; though arrestees are entitled to a determination within 48 hours, the jury could have found a bona fide emergency or extraordinary circumstance—namely, police’s uncertainty about their jurisdiction—and that police promptly brought plaintiff before a magistrate after resolving jurisdiction. Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012).

Federal habeas relief of Texas D’s death sentence granted; under Penry v. Lynaugh, 492 U.S. 302 (1989), the punishment-phase jury instructions violated the Eighth Amendment because they failed to provide an avenue for D’s mitigating evidence of a difficult childhood. McGowen v. Thaler, 675 F.3d 482 (5th Cir. 2012).

        The Fifth Circuit denied D’s request for a certificate of appealability as to other issues.

D, who had more than one criminal history point, was ineligible for safety valve relief for his pre-amendment crime, even though the district court departed downward to a Criminal History Category I for over-representation of criminal history. United States v. Solis, 675 F.3d 795 (5th Cir. 2012).

        United States v. Jasso, 634 F.3d 305 (5th Cir. 2011), held that a defendant who falls into Criminal History Category II or higher—disqualifying him for the “safety valve” relief from a statutory minimum sentence in 18 U.S.C. § 3553(f) and USSG § 5C1.2—is not rendered eligible for safety valve relief simply because the district court departs down to a Criminal History Category I pursuant to USSG § 4A1.3. In Jasso, the Fifth Circuit relied on Guidelines Amendment 651 (effective November 1, 2003), which made this point explicit. Here, the Fifth Circuit determined that the same was true even before it was made ex­plicit in Amendment 651. Accordingly, on the government’s appeal of the court’s safety valve sentence, the Fifth Circuit vacated D’s below-statutory-minimum sentence and remanded for resentencing without the safety valve.

Officers did not coerce a false murder confession from a 13-year-old boy (convicted of murder but acquitted on appeal); the totality of the circumstances indicated that the boy’s will was not overborne, but rather that he was primarily motivated by a desire to protect his sister. Edmonds v. Oktibbeha County, 675 F.3d 911 (5th Cir. 2012).

D was not entitled to the Sentencing Guidelines’ minor role reduction because he did not show that he was substantially less culpable in the drug sale than the average participant. United States v. Claiborne, 676 F.3d 434 (5th Cir. 2012).

        Nor did the district court plainly err in applying an enhancement for obstruction of justice pursuant to USSG § 3C1.1. A district court’s determination that a defendant has obstructed justice is a factual finding, and questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.

The court did not abuse its discretion in denying the defense expert witness based on Fed. R. Crim. P. 16(b)(1)(C), which requires the defense to give the government a summary of expert testimony beforehand. United States v. Lundy, 676 F.3d 444 (5th Cir. 2012).

        The district court found that there was no good reason for the delay in notifying the government about the expert’s proposed testimony, that the proposed testimony was redundant, and that it was unclear whether the expert was qualified to tes­tify on the issue.

        In attempted-child-enticement prosecution, court did not err in finding that online chats and videos documenting how the agent collected the chats were sufficiently authenticated to be admitted into evidence and to establish that D was chatting with the purported victim (actually a law enforcement officer). Officer’s testimony that D’s girlfriend’s son had a name similar to the one used by the person chatting with the minor was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but was only used as investigatory background.

Where attorney, jointly representing a husband and wife charged with embezzlement, alerted the trial court to the possibility of a conflict of interest arising from the joint representation, it was error for the court to fail to inquire into the potential conflict. Salts v. Epps, 676 F.3d 468 (5th Cir. 2012).

        The Mississippi courts misinterpreted Holloway v. Arkansas, 435 U.S. 475 (1978), to apply only where there is a showing of actual conflict. The Fifth Circuit affirmed the district court’s grant of federal habeas relief.

Court did not abuse its discretion in refusing to commit D for an in-house competency evaluation because the record did not establish that D was incompetent to stand trial. United States v. Flores-Martinez, 677 F.3d 699 (5th Cir. 2012).

        D’s angry outbursts regarded his beliefs that he was entitled to U.S. citizenship based on his father’s military service and that he was being unjustly prosecuted; these beliefs, although legally incorrect, were not irrational.

        Additionally, district court did not unconstitutionally abridge D’s right to testify. Defense counsel’s proffer suggested that D wished to testify only about concededly off-limits subjects, and the right to testify does not encompass the right to testify about inadmissible matters. Although D asserted on appeal that he could have testified about other, admissible matters, it was not plain error for the court to completely preclude D from testifying based on trial counsel’s proffer.

Where D was convicted of possession of a firearm by a felon, the Victim and Witness Protection Act did not authorize restitution for the pawnshop to which D sold the stolen firearms he was convicted of possessing. United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012).

        The pawnshop was out $525 when the stolen firearms were returned to their owners. The pawnshop’s loss was not a direct and proximate result of the offense of conviction (D’s possession of the firearms) but resulted from the theft and subsequent pawning of the firearms. Accordingly, the pawnshop was not a “victim” within the Victim and Witness Protection Act, 18 U.S.C. § 3663, and the restitution order was improper. The Fifth Circuit chose to order full resentencing, because restitution was only one component of the sentencing court’s balance of sanc­tions and because of a plain error in the calculation of the Sentencing Guidelines for imprisonment.

        Under USSG § 4A1.2(a)(2), district court plainly erred in assessing separate criminal history points for two Texas convictions and sentences that occurred on a single day in 2006 for offenses that were not separated by an intervening arrest. Although the 30-month sentence imposed on D fell within the correct Guideline range, the Fifth Circuit pretermitted any inquiry as to whether this error affected D’s substantial rights, as the Fifth Circuit was already ordering a full resentencing based on an error in restitution.

An order of restitution that exceeds the victim’s actual losses or damages is an illegal sentence and is a punishment in excess of the statutory maximum, an explicit exception to the appeal waiver under consideration. United States v. Chem. & Metal Indus., Inc., 677 F.3d 750 (5th Cir. 2012).

        District court reversibly erred in imposing a $1,000,000 fine on corporation pursuant to the alternative-fine provisions of 18 U.S.C. § 3571(d) because, as the government conceded, there was no evidence of any pecuniary loss or gain as required by that provision. The court also erred in imposing a $2,000,000 restitution order because, as the government also conceded, there was no proof of loss. Although the government requested a remand to present evidence supporting imposition of a fine and restitution, the Fifth Circuit declined because “[t]he government generally may not present new evidence on remand when reversal is required due to the failure to present evidence originally.” The Fifth Circuit vacated the restitution order and modified the fine to $500,000, the maximum available under the general fine provisions of § 3571(c).

Where D alleged he went to trial only because of his counsel’s overstatement of the Sentencing Guideline range that would apply if he pleaded guilty, district court erred in denying D’s claim of ineffective assistance without an evidentiary hearing in light of the conflicting accounts by D and counsel and the incomplete record. United States v. Rivas-Lopez, 678 F.3d 353 (5th Cir. 2012).

        D alleged trial counsel told him the Sentencing Guideline range if he plead guilty would be 262 to 327 months, whereas it could have been as little as 87 to 108 months. The Fifth Circuit vacated the district court’s order denying 28 U.S.C. § 2255 relief and remanded for further proceedings, including an evidentiary hearing on D’s claim of ineffective assistance.

Court of Criminal Appeals

A claim alleging the violation of a rule of evidence is not cognizable on habeas corpus. Ex parte Ramey, No. AP-76,533 (Tex.Crim.App. Nov 7, 2012).

        Relator inmate applied for a writ of habeas corpus, alleging that the district court erroneously admitted testimony from an expert under Tex. R. Evid. 702. CCA denied relief.

        D claimed the expert’s testimony was inadmissible under Coble v. State, 330 S.W.3d 253 (Tex.Crim.App. 2010), and he contended the testimony violated the heightened reliability requirement of U.S. Const. amend. VIII. CCA noted that Coble was a direct appeal and did not give rise to a claim that was cognizable on habeas corpus. CCA also rejected the contention that the admission of the expert’s testimony violated the heightened reliability requirement of the Eighth Amendment. CCA stands by its decision on direct appeal not to consider the expert’s reliability. The issue of reliability was not preserved at trial; D did not raise the issue in his direct-appeal brief; and D did not file a motion for rehearing.

The trial court properly denied D’s motion to suppress because Miranda warnings were not required, as the store’s loss-prevention officer was not an agent of law enforcement when he obtained D’s theft confession. Elizondo v. State, No. PD-0882-11 (Tex.Crim.App. Nov 7, 2012).

        A trial court denied D’s motion to suppress, under Tex. Code Crim. Proc. art. 38.22, a written confession obtained by the retail store’s loss-prevention officer. COA and CCA affirmed.

        The evidence showed that: (1) while officers may have been aware that the store had a policy of obtaining a civil demand notice, there was no indication that this knowledge led to a calculated practice between the police and the store’s loss-prevention staff, and the police had not even been contacted when the loss-prevention officer obtained D’s confession; (2) the loss-prevention officer’s reason for obtaining the civil demand notice was to adhere to the policies in the store’s loss-prevention manual; and (3) a reasonable person in D’s position would not have believed that the loss-prevention officer was a law enforcement agent, as he was not wearing a uniform and informed D that he was a loss-prevention officer for the store.

A guilty plea causes the trial to become unitary; in such a trial there is only one fact finder and that fact finder determines punishment. In re State ex rel. Tharp, No. AP-76,916 (Tex.Crim.App. Nov 14, 2012).

        The State sought a writ of mandamus to require the Comal County trial judge to submit the entire case—both guilt and punishment—to the jury after D pled guilty to the jury. CCA conditionally granted the writ and directed the judge to proceed with trial, submitting all relevant issues, including punishment, to the jury so long as D’s plea of guilty remained in place.

        Once a defendant pleads guilty before a jury, the law provides that the trial became unitary, requiring the jury to be in­structed to return a verdict of guilty and assess punishment. The judge’s insistence that he would assess punishment usurped the legal requirement that the jury assess punishment. If guilt and punishment were determined by different fact finders, then the trial was necessarily a two-stage trial.

COA erred in failing to address the State’s procedural arguments regarding preservation of D’s sufficiency claim before reversing the trial court’s revocation of D’s community supervision on sufficiency grounds. Gipson v. State, No. PD-1470-11 (Tex.Crim.App. Nov 14, 2012).

        Without addressing whether D’s argument was preserved, COA determined that there was no evidence that D had willfully refused to make his required community-supervision payments. CCA reversed COA and remanded.

        COA erred in construing the due-process requirement de­scribed in Bearden v. Georgia, 461 U.S. 660 (1983), as an evidence-sufficiency requirement. Because COA misapplied Bearden in its analysis of the ability-to-pay statute, Tex. Code Crim. Proc. art. 42.12, § 21(c), the case had to be remanded so COA could consider whether the ability-to-pay statute applied to D’s unpaid amounts that were not explicitly listed in the statute. COA also did not discuss whether D’s plea of true and stipulation to the allegation would constitute a “hearing” so as to trigger the evidentiary requirements of the ability-to-pay statute. By contrast, the analysis turned on whether, under common law, evidence of D’s ability to pay was introduced rather than on whether a “hearing” was held.

Psychotherapist’s testimony about D’s polygraph exams was inadmissible because polygraph results are unreliable. Leonard v. State, No. PD-0551-10 (Tex.Crim.App. Nov 21, 2012), withdrawing No. PD-0551-10 (Tex.Crim.App. Mar 7, 2012).

        COA found that the trial court abused its discretion in revoking D’s community supervision based on the results of polygraph examinations. CCA affirmed COA.

        While the psychotherapist did make the conclusory statement that those in his field reasonably relied on polygraph re­sults, the sole basis of his opinion was the results of a test that had been held inadmissible because it was unreliable. Total re­liance on inadmissible and untrustworthy facts could not be rea­sonable, nor would such an opinion achieve the minimum level of reliability necessary for admission under Tex. R. Evid. 702. Furthermore, the provision in D’s probation requiring him to take and “show no deception” on polygraph exams does not justify admitting legally unreliable evidence.

The trial court properly prevented D from questioning prospective jurors about whether they could consider specific kinds of mitigating evidence; this was an improper commitment question. Hernandez v. State, No. AP-76,275 (Tex.Crim.App. Nov 21, 2012).

        D was convicted of capital murder and sentenced to death for the deaths of his estranged wife and her friend. CCA found D’s twelve points of error to be without merit.

        Notably, D claimed the trial court erred in preventing him from questioning prospective jurors about whether they could consider specific kinds of mitigating evidence in reaching a de­cision on the mitigation special issue. The question was an im­proper commitment question; it sought a “yes” or “no” answer and committed a prospective juror to a determination of whether the stated circumstance was mitigating—i.e., being abused as a child. The trial court did not place an absolute limitation on the underlying substance of the excluded question.

Officers, invited into D’s home but then asked repeatedly to leave, were not in D’s home in an emergency situation when they found the drug paraphernalia. Mil­ler v. State, No. PD-0705-11 (Tex.Crim.App. Nov 21, 2012).

        D was arrested for possession of a controlled substance. The trial court denied her motion to suppress evidence of a controlled substance, and she pleaded guilty. COA affirmed the denial of her motion. CCA reversed and remanded to the trial court.

        Deputies responded to a disturbance call reporting yelling, screaming, and the sounds of objects being thrown in D’s apartment. The deputies approached the situation as a domestic assault. D gave the officers consent to enter her home. However, the officers saw upon entry that D was the only adult present and she had no visible injuries. No emergency situation existed when D told the officers to leave her home and revoked her consent to their entry. Based on the record, COA erred when it found that the officers’ presence was justified under the emergency doctrine. Because the officers’ presence in the apartment at the time they found the illegal substance was not permissible, the trial court should have granted D’s motion to suppress.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Prosecutor’s comment (i.e., “It doesn’t matter how guilty you are or how much evidence you do have or don’t have, things like that. You still get a trial.”) deemed not an impermissible request for the jury to penalize D for exercising his right to a jury trial. Eason v. State, No. 05-10-01232-CR (Tex.App.—Dallas, June 28, 2012).

Waiting for drug dog to arrive prolonged detention of D, the car’s passenger, beyond what is reasonable. State v. Ibanez, No. 03-10-00832-CR (Tex.App.—Austin, July 6, 2012).

        “[T]he video recording shows that the troopers discovered [driver’s] true identity and his outstanding warrant approximately an hour and fifteen minutes after the initiation of the traffic stop. Certainly, by that point, [driver] was under arrest and the troopers’ investigation into his identity was therefore complete. In addition, the officers had completed their search of the vehicle. However, the officers had not yet conducted the canine sniff that yielded the evidence at issue in [D’s] motion to suppress. In order for the canine sniff to be conducted, the officers continued to detain [D] for another thirty minutes. . . . [T]he record supports an implied finding by the trial court that the traffic stop concluded upon the identification and arrest of [driver]. Thus, the additional time it took for the dog to arrive prolonged the detention beyond the time reasonably required to complete the mission of the stop.”

Printout from TCIC database, which indicated two DWI convictions, deemed reliable such that officer was justified to compel taking D’s blood, even though trial court found printout confusing and incorrect. Comperry v. State, 375 S.W.3d 508 (Tex.App.—Houston [14th Dist] 2012).

        Despite the shortcomings of the Texas Crime Information Center printout, “we cannot say the trial court erred or abused its discretion by concluding that [officer] was entitled to rely on the information because the TCIC database provides ‘normally reliable’ information from a credible source.”

Officer’s search of data in cell phone taken from D to inventory in jail following his arrest deemed unreasonable; officer should have obtained warrant. State v. Gran­ville, 373 S.W.3d 218 (Tex.App.—Amarillo 2012, pet. granted).

        “[A]rrestees still retain some level of privacy interest in personal effects or belongings taken from them after arrest. . . . Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. . . . Due to the potential invasiveness of the search, [D’s] status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which [D] was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail’s penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention.”

Weapons frisk of locked vehicle improper; officer’s belief that D (who was standing outside vehicle) was dangerous and might gain immediate control of weapons in locked vehicle deemed unreasonable. Dowell v. State, No. 05-10-00551-CR (Tex.App.—Dallas, July 12, 2012, pet. granted).

Police cannot use an unreasonable show of force to compel a defendant to open the door of his home during a “knock and talk” (an issue of first impression). Orosco v. State, Nos. 01-11-00558-CR, 01-11-00559-CR (Tex.App.—Houston [1st Dist], July 12, 2012).

        “[D] contends that he was illegally seized within his home when six to seven armed police officers surrounded his house before daylight, knocked repeatedly on doors and windows for 20 to 30 minutes, and then discharged a shotgun nearby. . . . The more difficult question we address for the first time today is whether police conduct can, in the face of a defendant’s refusal to exit his home, be considered an illegal arrest in violation of Payton [v. New York, 445 U.S. 573 (1980),] if the officers create circumstances indicating to the defendant that he must exit the home. In such a case, the police have not breached the threshold of the home, but their conduct has nonetheless coerced the defendant to exit the home where he is then subject to warrantless detention or arrest. . . . When a person in his home declines to speak to police, the officers should retreat cautiously, seek a search warrant, or conduct further surveillance.”

Officer’s belief that weapon could be concealed under banana in a cup holder not unreasonable. Butler v. State, No. 05-10-01398-CR (Tex.App.—Dallas, July 16, 2012).

        “[D] argues the search exceeded the scope of a protective search because it was unreasonable to anticipate that a weapon would be concealed under a banana. . . . In searching the truck’s center console, [officer] testified that he looked in the cup holder because it could have held a weapon such as a small derringer. There was no testimony contradicting [officer].”

        Weapons frisk of vehicle proper, despite officer’s admission that his motive was to find weapons and drugs.

My Report to TCDLA

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When Waxahachie attorney Ron Bunch and I were elected to the State Bar Board of Directors in 2004, we became the only TCDLA members to be serving on the board. What we found was appalling: The Executive Director of the State Bar of Texas had never worked with—or even met—the Executive Directors of TCDLA or TDCAA. We also found that there was no one from criminal law—criminal court judge, prosecutor, or criminal defense lawyer—serving on the Commission on Lawyer Discipline, the MCLE committee, the CLE committee, or the Texas Board of Legal Specialization.

We made it known to our new Executive Director that we wanted a change, and almost immediately, he reached out to TCDLA and TDCAA. It took a little longer, but Bar Presidents listened to us and we began to see folks from criminal law receiving appointments to committees and boards.

I never set out to be State Bar President. I knew that the last criminal defense lawyer who had served in that capacity had begun his term in 1977. I didn’t believe that it was possible for a criminal defense lawyer to get elected, and besides, I didn’t want to be out of my office as much as it would take to do the job.

Then the unexpected happened: A candidate for President-Elect in 2011 had to drop out at the last moment and I was asked to take his place. This was an opportunity for someone from criminal law to lead the Bar and I agreed to step in for him. I called on many of you to help me. You responded and I got elected. Without your help, I know that I would never have happened.

After eight months in office I decided it was time to report to you about what I have been doing.

“Working Together to Strengthen Our Legal Profession”

This has been my theme.

Later this decade, the State Bar of Texas is going to have 100,000 members. Many of these lawyers are going to be significantly in debt and will have a temptation to view the practice of law as a business rather than as a profession.

This concerns me and I have been talking and writing about professionalism, ethics, and the Lawyer’s Creed. The State Bar has a Professionalism Committee, and I have charged the Chair and the members of that committee to serve as a task force and to make suggestions as to how we can encourage the trait of professionalism in our members in the years to come.

Reaching Out to ALL Lawyers

Over the past 20 months, I have tried to be what I said that I would be during my campaign: A Voice for ALL Lawyers. I began by meeting with the Executive Directors of the Metropolitan Bars and with every specialty bar that had an executive director: TCDLA, TDCAA, TTLA, and TADC. The message was always the same: “The State Bar cares about you. What can we do to help you?” Every one of these meetings was productive. Ask Joseph Martinez and he will tell you that the relationship between the State Bar and TCDLA is the best that it has ever been. Rob Kepple, Executive Director of TDCAA, tells me that prosecutors now feel that they really are a part of the State Bar.

Traveling Around the State

Having worked in courthouses for all my years as a lawyer, I decided to walk the local courthouse every time that I was in a town or city for whatever reason. By the end of January, I had been to 22 courthouses all over Texas and had visited with more than 200 judges, either in their chambers or while they were on their benches. I have also attended a judicial conference, spoke to the attendees, and visited their 8 hospitality suites. Many judges have indicated that they were pleased that I have not forgotten the judiciary. I have also visited with elected prosecutors, civil lawyers, and other criminal defense lawyers.

I have spoken at bar association meetings, law schools, and CLE events and my message has always been well received. I will continue to do this for the remaining four months of my term. After that, I intend to be a liaison between the State Bar and criminal defense lawyers, prosecutors, and criminal court judges.

Making Committee Appointments from All Segments of the Bar

I worked on the hundreds of appointments to committees that each President-Elect has to be concerned with. Each of these appointments is for three years and most appointees receive a second term; therefore, a President-Elect can influence the composition of a committee for 6 years. One member of the Bar staff mentioned to me that he didn’t know that there had been so few from criminal law appointed until he began working with me. In the past, many Bar Presidents simply had little contact with criminal defense lawyers. Also, many criminal defense lawyers did not show any interest in being appointed to these committees.

My favorite appointment was of former TCDLA President Mike Heiskell to serve as a Trustee for the Texas Bar Foundation. Although this organization is 48 years old and has 8,321 members, no criminal court judge or prosecutor or criminal defense lawyer had ever previously been appointed as trustee or elected to an office of the Foundation.

Talking About TLAP and the Ethics Helpline

The Texas Lawyers Assistance Program has volunteers who are available 24/7 to listen to and help lawyers with alcohol and substance abuse issues. Kelly Pace and Lance Larison are TCDLA members who are active in this program.

The Ethics Helpline has two full-time lawyers from the office of the Chief Disciplinary Counsel who are available to help anyone with an ethics issue. They are receiving some 5,000 calls a year and try (hard) to answer each of these calls within 24 hours. Their advice may save you from a grievance. Call 1-800-555-1212 and ask for the Ethics Helpline.

Talking About Our State Bar Board of Directors

The State Bar Board of Directors represents the interests of over 92,000 lawyers from a myriad of practice areas. We have 30 elected directors; 6 representatives of the small, medium, and large sections; 4 minority directors appointed by the President; the elected officers of the Bar; the past chair of the board (ex efficio); and 6 lay members appointed by the governor. Additionally, we have 5 liaisons from the courts, the judicial section, and the out-of-state lawyers.

The Board is appropriately diverse as to race, gender, area of practice, size of firm, geographic location of practice, age, and sexual preference. There is a myth that the Board is made up of big-city lawyers. In fact, there are lawyers from these small towns all over Texas: Nacogdoches, Weslaco, Plano, College Station, Beaumont, Midland, Rockport, Forney, Cypress, Laredo, Clifton, Hillsboro, Richmond, Jacksonville, Los Fresnos, Boerne, Granbury, McAllen, and Temple.

Talking About Our Governance Model

One of my concerns has been that our lawyers understand how important it is that we continue to govern ourselves. With more than 92,000 lawyers now licensed to practice in Texas, it is a given that the legislature is going to continue to require oversight of our profession. We can provide this ourselves or we can cede this oversight to something of the legislature’s choosing. Not a great idea.

In 1999, the State Bar had 324 employees taking care of 65,000 lawyers. Today, we have 268 employees taking care of 92,212 lawyers—and there has been no dues increase in more than 20 years. Can you imagine anything created by the legislature being able to put up those numbers?

Many, though, are still complaining about the infamous Referendum of 2011 that the Supreme Court of Texas required the State Bar to conduct—and I understand this. But there is a lesson here: Because we govern ourselves, we had the opportunity to vote and to reject it. That’s a good thing.

Talking About Transparency

It is not just the end result that matters. The process is important. Executive Director Michelle Hunter is always available to answer questions about the process.

At every board meeting, every member of the board has the opportunity to address any issue and to raise any question that he or she deems appropriate.

I Have Been Passing the Word

1. The State Bar Is Concerned About the Lawyers of Texas

The officers, directors, and staff of the State Bar realize that we are in hard economic times; therefore, we are all concerned about giving our members every economic benefit that we can:

  • We have a member discount program that is remarkable. A member of the State Bar can save on everything from Brooks Brother’s clothing to electronics to FedEx to Las Vegas shows to Godiva chocolates and wine. Look under benefits at www.texasbar.com.
  • We have Casemaker, a free legal research tool that is available to our lawyers. You can search the case law and the statutes from all 50 states, plus the Texas Administrative Code, Texas Constitution, and Attorney General opinions. More than 12,000 Texas lawyers already use this free program.
  • The State Bar’s Lawyer Referral Information Services offers attorneys the opportunity to be included in a statewide referral database. Participating attorneys also receive discounts on services offered by TexasBarCLE.
  • The Law Practice Management Program is available both to established lawyers and to those newer lawyers who are hanging out a shingle. It helps you assess your practice, discover “how to” brochures, and take advantage of seminars and a resource library focused solely on practice management.
  • The State Bar continues to seek lower cost insurance for its members. We are surveying solo and small firm practitioners to evaluate interest in participating in a group plan to try to get lower cost health insurance. The results of the survey will be used to determine if there is enough interest to be attractive to group carriers. Your voice is important—if you receive the survey, please complete it.
  • TexasBarCLE is a national leader in continuing legal education, providing live courses from the basics to advanced, webcasts, an online library, and online classroom. Executive Director Michelle Hunter and I gave TexasBarCLE Director Pat Nester his marching orders: “Put on the best CLE that you can and be competitive in your pricing.” Last year, some 27,000 Texas lawyers took advantage of our programs. Interestingly, the average TexasBarCLE customer attends 3.4 programs per year. From a returning customer point of view, this would indicate high satisfaction with our product. I also set aside $50,000 in scholarship money for lawyers who could not afford the full cost of TexasBarCLE seminars. We also offer our perspective lawyers free online CLE after they take the bar examination and until they are sworn in as lawyers.

2. The State Bar Is Concerned About the People of Texas

These are five examples:

  • The Oyez, Oyez, Oh Yay program was developed to assist our middle and high school civics teachers present to their students the 24 cases that they must know for the new Texas Essential Knowledge and Skills standard assessment tests in U.S. government and history. Our Law Related Education department produced 24 CDs , each with a vignette about one of these cases. The program includes such well-known cases as: Marbury v. Madison, Gideon v. Wainwright, and Miranda v. Arizona. After government funding for civic education virtually dried up, the State Bar realized that our civics teachers needed assistance and stepped in. Since September 2012, LRE has hosted 25 Oyez sessions with 1,548 teachers.
  • The Texas Lawyers for Texas Veterans program was developed to provide veterans with the opportunity to receive the legal aid they need through the work of local bar associations, legal aid groups, and volunteer attorneys across the state. Over 6,000 veterans have received legal assistance through this program, and other states have modeled similar programs on our program. For more information visit www.texasbar.com/tltv. Bar associations all over America have copied our program.
  • The State Bar of Texas Legal Support Services Division devotes countless hours and resources to promote access to justice—to lawyers, non-lawyer volunteers, and Texas citizens who need pro bono legal assistance. The division partners with the Texas Access to Justice Foundation and the Texas Access to Justice Commission for fundraising and to raise awareness about the needs of low-income Texans. Through programs the division supports, lawyers and legal services programs receive valuable training opportunities and other resources. The State Bar even subsidizes malpractice insurance for legal aid programs. Providing access to the legal system and protecting the public is a core mission of the State Bar.
  • The Client Security Fund refunds money to victims of a lawyer’s dishonest conduct. In the last Bar year, the Client Security Fund Subcommittee reviewed 131 applications for help as a result of the misconduct of Texas lawyers. Of those 131, 98 were approved and $640,604 was returned to 15 victims of attorney theft and to 83 who had not received a refund on unearned fees.
  • The Texas Young Lawyers Association also provides resources for the public. Examples include “The Unconscious Truth,” “Vote America,” “Healing the Wounds,” “The Little Voice,” and many more. The “Unconscious Truth” explains the physical and legal effects of underage binge drinking. “Vote America” is a video that educates and encourages students to exercise their right to vote. “The Little Voice” is a brochure aimed at teaching the public how to recognize child abuse and understand the duty to report it. This year, TYLA is adding two public education programs to its expansive list—“Slavery Out of the Shadows: Spotlight on Human Trafficking,” which highlights the growing problem of human trafficking in Texas, and “What Do Lawyers Do?” a program designed to educate potential law students about practical information to consider when making the choice to attend. Visit www.tyla.org for more information.

3. What You May Not Know

  • Lawyer Discipline: The lawyers in the Office of the Chief Disciplinary Counsel working under the supervision of the Commission on Lawyer Discipline are not seeking excuses to take the licenses of Texas lawyers. They are as committed to clearing the innocent lawyer as they are in prosecuting the unethical lawyer. In fact, during 2011–2112, Texas lawyers received only 38 disbarments and 137 suspensions, with some of these probated. 517 complaints were received and 403 were resolved. Under our grievance referral program, 55 lawyers were required to undergo drug or alcohol counseling, but received no sanctions upon their successful completion of the program.
  • Supreme Court Appointments: The State Bar has no ability to influence the appointment of lawyers and lay persons to the Supreme Court–appointed committees. There are 52 members on the Supreme Court Advisory Committee; 9 members of the Grievance Oversight Committee; 9 members of the Professional Ethics Committee for the State Bar of Texas; 9 members of the Unauthorized Practice of Law Committee; and, 9 members of the Board of Disciplinary Appeals.

    Remember that it was the Professional Ethics Committee of the State Bar that authored the infamous Opinion 611 and you will see why I am so concerned about the makeup of these committees. I see few names on these committees of lawyers whom I recognize as having been prosecutors or criminal defense lawyers or criminal court judges. For this reason, I have asked Bar staff to look at the areas of practice and geographic locations of the lawyers and lay persons on these committees in order that I can bring this to the attention of the Chief Justice, if there is not appropriate diversity in these committees.

  • The Legislature: There are limitations on our ability to work with the legislature. The State Bar is severely limited as to what it can do. In Keller v. State Bar of California, 496 U.S. 1 (1990), the Supreme Court held that mandatory bar associations cannot use bar dues to engage in political or ideological activities that are not related to the bar’s core purposes. The State Bar Act, Tex. Govt. Code § 81.1034, prohibits the State Bar from using any of its funds for influencing the passage or defeat of any legislative measures unless the measure relates to the regulation of the legal profession, improving the equality of legal services, or the administration of justice.

    This explains why, for example, the State Bar could not become involved in the debate on tort reform—an issue of great concern to the lawyers of Texas, but one that had members of the State Bar on opposite sides of the issue.

  • Limitations on the State Bar: The Supreme Court has administrative control over the State Bar. The State Bar is not autonomous.

    State Bar Board and Executive Committee meetings are subject to the Texas Open Meetings act. This means that there are specific posting rules the State Bar has to follow for these meetings, and that these meetings are open to the public.

    The State Bar is subject to the Texas Public Information Act. This means that documents within the State Bar’s possession, except for certain limited exceptions, are available to the public.

    The State Bar must submit a strategic plan, budget, and performance measures to the Supreme Court.

    The State Bar must present its annual financial audit to the Texas State Auditor’s office as well as to the Supreme Court, the Governor, and the presiding officer of each house of the legislature.

Conclusion

I am proud of what the State Bar is doing for the lawyers of Texas and for the people of Texas. Thanks to the work of the State Bar Board and our dedicated employees, we’re doing good!

This has been a remarkable year for me—and it has been fun. The nicest complement that I have had is this: “We have never seen a State Bar President here before.” If you see me in your courthouse, please come over and visit with me.

Attenuation of Taint: Empty Promises of the Fourth Amendment

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On May 23, 2012, a majority of the Texas Court of Criminal Appeals held that discovery of outstanding arrest warrants may break the causal connection between an illegal stop and the discovery of evidence used to prosecute our clients.2 This would render evidence admissible despite violations of the U.S. Constitution, Amendment IV. This article is loosely based on the motion for rehearing, the petition for writ of certiorari pending at the time of the writing, and a passion for the Bill of Rights, especially the Fourth Amendment.

There is currently a sharp division among the state courts of last resort and the federal district courts as to whether an arrest warrant found as a result of a bad stop can attenuate the taint of that stop.3 In addition to the sharp division within the nation, there is a division within the Texas Court of Criminal Appeals (four judges dissenting to Mazuca with two separate written dissents). There also appears to be a division in Texas jurisprudence, as a recent case with almost identical facts did not result in an arrest warrant attenuating the unlawful stop.4 The St. George5 case is cited by the majority in Mazuca, but it is neither distinguished nor overruled. This appears to be a case that is ripe for the United States Supreme Court—as it was an issue expressly left open in Brendlin.6

The majority of the Texas Court of Criminal Appeals cites Hudson7 for the proposition that the exclusionary rule extracts a substantial societal cost in exercising its deterrent function, and that application of the exclusionary rule should operate as a “last resort” and not a “first impulse.”8 That language did not command a majority of the Hudson court. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.9 Justices Scalia, Roberts, Thomas, and Alito joined in the holding cited by the majority in minimizing the importance of the exclusionary rule. The concurrence by Justice Kennedy states,
“[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”10

The four Justices dissenting11 describe the exclusionary rule as the “strongest legal incentive”12 for the police officers to follow the law, stating that “the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression.”13 Therefore, the opinion by the five judges on the Texas Court of Criminal Appeals14 that the exclusionary rule is dead or dying is not shared by a majority of the United States Supreme Court. The composition of the United States Supreme Court has changed since the Hudson decision, but the new appointees should favor the continued viability of the exclusionary rule.15

The circular reasoning that would allow evidence found by virtue of an unlawful detention and unwarned custodial questioning to justify that detention would effectively read the Fourth Amendment out of the United States Constitution. The proposition that the evidence that is found justifies the arrest or the seizure is a specious argument. If valid, it means that an officer may stop and search every vehicle or foot passenger on the highway and if a traffic warrant is found the search would be legal. Such practice would “suit the purpose of despotic power, but it cannot abide in the pure atmosphere of political liberty and personal freedom.”16

Indiscriminate search and seizures were the immediate evils that motivated the framing and adoption of the Fourth Amendment.17 Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance, under which officers of the crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased. They were denounced by James Otis as the “worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law . . . because they place the liberty of every man in the hands of every petty officer.”18

The State cannot use information gained by evidence unlawfully seized to frame a new indictment and use the evidence in prosecution. “The Government now . . . seeks to maintain its right to avail itself of the knowledge obtained . . . which otherwise it would not have had. . . . It reduces the Fourth Amendment to a form of words. . . .[19] The essence of the provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”20

Cases dealing with exceptions to the warrant requirement of the Fourth Amendment teach us that the state cannot create that exception. In the context of plain view searches it is “an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”21 Similarly, officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs.22 The exigent circumstance rule justifies a warrantless search where the conduct of the police preceding the exigency was reasonable. The police cannot create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.23

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”24 The Mazuca25 majority held, “The court of appeals adopted an approach that would effectively presume purposeful and/or flagrant police misconduct from the fact of the primary illegality alone rather than assessing the character of that illegality, and of any subsequent police conduct, to determine whether they actually behaved purposefully or flagrantly in the particular case.”26

The violation of the Fourth Amendment is always flagrant behavior on behalf of law enforcement. Allowing warrants to attenuate the taint of Fourth Amendment violations will discriminate disproportionally against those who do not pay traffic tickets—poor people. A vagrancy ordinance that appeared to make it a crime to be poor was found to be unconstitutional in 1972 by the United States Supreme Court.27 Depriving the poor of the benefit of the Fourth Amendment would be likewise unconstitutional. Statutes that vest complete discretion in law enforcement are unconstitutional.28

As noted in Almeida-Sanchez v. United States: “These [Fourth Amendment rights], I protest, are not mere second class rights but belong in the catalog of indispensible freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”29 And, from Papachristou v. Jacksonville, “Where . . . there are no standards governing the exercise of discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.”30 The governmental interest in crime control does not create an exception to the Fourth Amendment prohibition against unreasonable search and seizures.31

The Mazuca holding makes it difficult to ascertain the appropriate scope of an unlawful stop. “So, while the initial traffic stop was illegal, [the police] never went beyond the bounds of what would have been constitutionally permissible had the stop in fact been justified at its inception.”32 A seizure must be reasonably related to the circumstances that justified the stop in the first place.33 In Ohio v. Robinette, Justice Ginsburg discussed the need to evaluate both the reason for the initial detention as well as the scope of the detention to ensure that police officers are not using traffic stops merely as a means to conduct “fishing expeditions.”34 How long can law enforcement detain someone without a valid reason? One supposes until they find one.

Coolidge v. New Hampshire35 places the burden on the prosecution to establish that any search or seizure was justified under an exception to the warrant requirement. Conversely, the Texas Court of Criminal Appeals would require the defense to show the taint was not attenuated, creating a presumption of lawful intent on the part of law enforcement.36 The Texas Court specifically notes, “There is no indication that they were making traffic stops for any purpose other than to enforce the traffic laws or that they harbored the specific hope or expectation that they might obtain the consent of motorists to search their vehicles or identify motorists with outstanding arrest warrants so that they might conduct searches incident to arrest.”37 This language clearly places the burden on the defense to show that law enforcement was acting with the motive to violate the defendant’s Fourth Amendment rather than on the State to show that the officer had an altruistic motive.

The Mazuca majority finds that “While Lopez-Valdez makes it evident that [the police officers] should have known better than to conduct a traffic stop for the reason they did, nothing in the present record establishes that they actually did know.”38

The Supreme Court has not found the officers’ subjective intent to be relevant—or made good faith an exception to the requirement for probable cause. “[G]ood faith is not enough to constitute probable cause. That faith must be grounded on facts . . . , which in the judgment of the court would make his faith reasonable.”39 United States v. Cortez added, “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”40 The Constitutional reasonableness of traffic stops does not depend “on the actual motivations of the officer’s involved.”41 “[W]e look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.”42

The question of malice or of good faith is not an element of the case. It is not a question of motive. If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would in­jure another, or whether he moved reluctantly, is quite im­material.43

Conclusion

There are many frightening implications of the Mazuca case. Not discussed is the lack of deference to the factual findings made by the trial judge who actually heard the testimony and observed the witnesses. This trend of the Court of Criminal Appeals making factual findings is disturbing and merits its own article. Is the future of the exclusionary rule in jeopardy? If what is found justifies the way it is found, what protection can the Fourth Amendment give? Are general warrants now lawful for everyone or just those unable to pay their traffic fines? If violating the Fourth Amendment is not flagrant behavior on the part of law enforcement, what is? Why is the burden of proof on the defense and the subjective intent of law enforcement suddenly relevant after years of consistent holdings otherwise? And perhaps, most importantly, exactly how is the accused to show what a cop was thinking?

Notes

1. “Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.” Mapp v. Ohio, 367 U.S. 643, 659–60, 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961).
2. Mazuca v. State, 375 S. W. 3d 294, 310 (Tex. Crim. App. 2012). (Judge Price wrote for the majority, Judges Myers, Johnson, Keller and Womack dissenting).
3. United States v. Simpson, 439 F. 3d 490 (8th Cir. 2006); United States v. Green, 111 F. 3d 515 (7th Cir. 1997); State v. Frierson, 926 So. 2d 1139 (Fla. 2006); State v. Page, 103 P. 3d 454 (Idaho 2004); State v. Martin, 179 P. 3d 457 (Kan. 2008); State v. Hill, 725 So. 2d. 1282 (La. 1998); Myers v. State, 909 A. 2d 1048 (Md. 2006); Jacobs v. State, 128 P. 3d 1085 (Okla. Crim. App. 2006); State v. Dunn, 172 P. 3d 110, 115–16(Mont. 2007)…
3. United States v. Lopez, 443 F. 3d 1280 (10th Cir. 2006); United States v. Luckett, 484 F. 2d 89 (9th Cir. 1973); People v. Padgett, 932 P. 2d 810 (Colo. 1997); Sikes v. State, 448 S.E. 2d 560 (S.C. 1994); State v. Daniel, 12 S.W. 3d 420 (Tenn. 2000); St. George v. State, 237 S.W. 3d 720 (Tex. Crim. App. 2007); State v. Topanotes, 76 p. 3d 1159 (Utah 2003). Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008).
4. St. George v. State, 237 S.W. 3d 720 (Tex. Crim. App. 2007).
5. Id.
6. Brendlin v. California, 551 U.S. 249; 127 S. Ct. 2400; 168 L. Ed. 2d 132 (2007). The case was remanded to the California Supreme Court to see if the outstanding warrants attenuated the taint of the unlawful stop. The California Supreme Court happily found that the warrants did attenuate the taint, that stopping someone without a valid reason was not flagrant behavior on behalf of law enforcement. People v. Brendlin, 195 P. 3d 1074 (California Supreme Court, 2008, cert. denied).
7. Hudson v. Michigan, 547 U.S. 586, 595, 126 S. Ct. 2159; 165 L. Ed. 56 (2006).
8. Mazuca, supra, at p. 300.
9. Gregg v. Georgia, 428 U.S. 153; 96 S. Ct. 2909; 49 L. Ed. 2d 859 (1976).
10. Hudson, supra, 547 U.S. at 603.
11. Justices Breyer, Stevens, Souter, and Ginsburg.
12. Hudson, supra, at p. 605.
13. Hudson, Id., p. 608.
14. Judges Price, Alcala, Hervey, Keasler, and Cochran.
15. This is my best guess based on the SCOTUS decision in United States v. Jones, 132 S. Ct. 945; 181 L. Ed. 2d 911 (2012) (J. Sotomayor’s concurrence).
16. Carroll v. United States, 267 U.S. 132; 45 S. Ct. 280; 69 L. Ed. 543 (1923), citing Boyd v. United States, 116 U.S. 616; 6 S. Ct. 524; 29 L. Ed 746 (1886).
17. U.S. Constitution, Amendment IV.
18. Payton v. New York, 445 U.S. 573; 583–584; 100 S. Ct. 1371; 63 L. Ed. 2d 639 (1980).
19. Weeks v. United States, 232 U.S. 383, 393.
20. Silverthorne Lumber Co. v. United States, 251 U.S. 385; 391; 40 S. Ct. 182; 64 L. Ed. 319 (1920).
21. Horton v. California, 496 U.S. 128, 136; 110 S. Ct. 2301; 110 L. Ed. 2d 112 (1990)
22. INS v. Delgado, 466 U.S. 210, 217 n. 5; 104 S. Ct. 1758; 80 L. Ed. 2d 247 (1984) (noting that officers who entered into consent-based encounters were lawfully present in the factory pursuant to consent or a warrant).
23. Kentucky v. King, 131 S. Ct. 1849; 179 L. Ed. 2d 865 (2011).
24. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110, (1972) citing United States v. Reese, 92 U.S. 214, 221.
25. Mazuca, supra, p. 310 [emphasis in the original].
26. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972).
27. Papachristou v. Jacksonville, 405 U.S. 156, 166; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972).
28. Kolender v. Lawson, 461 U.S. 352; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983).
29. Almeida-Sanchez v. United States, 413 U.S. 266, 274; 93 S. Ct. 2535; 37 L. ed. 2d 596 (1973), citing Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J. dissenting).
30. Papachristou v. Jacksonville, 405 U.S. 156, 170; 92 S. Ct. 839; 31 L. Ed. 2d 110 (1972), citing Thornhill v. Alabama, 310 U.S. 88, 97–98.
31. Indianapolis v. Edmond, 531 U.S. 32; 121 S. Ct. 447; 148 L. Ed. 2d 333 (2000).
32. Mazuca, supra.
33. Terry v. Ohio, 392 U.S. 1, 19–20; 20 L. Ed. 2d 889; 88 S. Ct. 1868 (1968).
34. Ohio v. Robinette, 519 U.S. 33, 41; 136 L. Ed. 2d 347; 117 S. Ct. 417 (1996) (Ginsburg J, concurring).
35. Coolidge v. New Hampshire, 403 U.S. 443; 454–55; 29 L. Ed. 2d 564; 91 S. Ct. 2022 (1971).
36. Is Monge v. State, 315 S. W. 3d 35, 40 (Tex. Crim. App. 2010), over-ruled? Monge is a recent CCA case that places the burden on the State to show attenuation.
37. Mazuca v. State, 375 S. W. 294, 310 (Tex. Crim. App. 2012).
38. Id., p. 310, citing United States v. Lopez-Valdez, 178 F. 3d 282, 288 (5th Cir. 1999)
39. Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27; 44 S. Ct. 52; 68 L. Ed. 146; (1923).
40. United States v. Cortez, 449 U.S. 411; 416; 101 S. Ct. 690; 66 L. Ed. 2d 621 (1984) [emphasis added].
41. Whren v. United States, 517 U.S. 806; 813; 116 S. Ct. 1769; 135 L. Ed. 2d 89 (1996).
42. Ashcroft v. Kidd, 131 S. Ct. 2074; 2083; 179 L.Ed. 2d 1149 (2011).
43. Stacey v. Emery, 97 U.S. 642; 645; 24 L. Ed. 1035; (1878).

Way Opened for Mid-Trial Review of Trial Court Rulings

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In a surprising opinion the Court of Criminal Appeals recently both re-examined whether an appeal will provided an adequate remedy at law and opened the way for increased high court review of trial court rulings.

Michelle Esparza, Kyle Hawthorne, and Lane Thibodeaux had just completed a grueling months-long capital murder trial in Bryan, Texas, and were engaged with the Court in a charge conference. The State, displeased with the trial Court’s rulings on the jury instructions, announced that it was seeking a writ of mandamus to force the trial Court to give a direct law of parties charge.1 The Court had found that no evidence supported a charge under section 7.02(a) of the Texas Penal Code.

The Waco Court of Appeals held that the trial Court’s rulings were discretionary and, therefore, denied the relief.2

Thereafter, the Court of Criminal Appeals, in an extraordinary opinion, conducted a “‘de novo application of the two prong test’ for mandamus relief.” Weeks, at slip op p.5 footnote 12 (Tex. Crim. App. 2013). It granted the State relief and provisionally3 ordered the Waco Court of Appeals to order the Trial Court to instruct the jury on direct parties liability. The opinion was extraordinary because it said that an appeal did not provide an adequate remedy at law because it was too speculative.

“Falk4 also contends that the State has an adequate remedy because it can raise a cross-point if Falk is convicted and appeals. Whether Falk will be convicted, and if so, whether he will appeal, is speculative. This remedy is too uncertain to constitute and adequate remedy.”

Weeks, slip op 8 (Tex. Crim. App. 2013)

The Court of Criminal Appeals also held that it could review, via writ of mandamus, the trial Court’s non-ministerial act of deciding what jury charges should be given in light of the evidence. This is also extraordinary.

“By focusing on the credibility and weight of the State’s evidence, [the Trial Court] converted a matter-of-law determination based on the existence of some evidence to support a liability theory into a factual finding on the reasonableness of the State’s theory. This ruling by the trial judge is contrary to established law that required the trial court to instruct the jury on the law applicable to the case, including all theories of liability requested by the State for which there is some evidence in the record.”

Weeks, slip op p.11 (Tex. Crim. App. 2013).

What Is Good for the Goose Is Sauce for the Gander

What is good for the State will apply at least equally for the de­fense, if not more so. If an appeal is too speculative for the State, then it is also true for the defendant who has an interest in the particular jury he strategically selected and in its proper charge. These interests are heightened to their zenith in a capital murder case. The defense also has an interest in the jury charge regarding defense theories, which it requests and for which there is some evidence in the record.

In fact, there are numerous pretrial and trial legal rulings in which the bench focuses upon credibility and the weight of the evidence. Under the Weeks case those issues are now arguably reviewable through a writ of mandamus.

“Mandamus is an extraordinary remedy. To intercede in an ongoing capital murder trial and order the trial court to give a particular jury instruction that we believe is raised by the evidence, and modify another jury instruction because we think the trial judge has misconstrued the law, is extraordinary indeed. Shall we interrupt the next capital trial because we think the trial judge has made a legal mistake in admitting certain evidence, or in failing to admit it? Or in granting a continuance, or failing to grant it? In allowing a capital murder defendant to represent himself, or failing to allow it? Or a hundred other scenarios that routinely present themselves in the course of a capital ligation (or any other criminal trial)? Where will it end?”

Weeks dissent slip op. at 1–2 (Tex. Crim. App. 2013)

The dissent in Weeks also agreed that the trial Court’s decision on the charge was not a ministerial act but, as the Waco Court of Appeals held, was a judicial determination. Weeks dissent at slip op 4 (Tex. Crim. App. 2013). And it roundly criticized the majority for interfering in an ongoing capital murder trial, particularly regarding an unsettled question of law that was also raised by the case: whether the jury should be charged that Falk must anticipate the manner and means that the State indicted for conspiracy law of parties liability under section 7.02(b).

“I certainly would not slam on the brakes in the middle of a capital murder trial—especially at the point at which the jury has heard all of the evidence and awaits only instruction from the trial court and argument of the parties before retiring to deliberate—in order to address the question.”

Weeks dissent slip op. p.7 (Tex. Crim. App. 2013)

It concluded that this was especially egregious because the law is unsettled on the legal questions that were raised. Weeks dissent slip op at p.8 (Tex. Crim. App. 2013).

In light of Weeks, Counsel can now utilize writs of mandamus to seek review of legal decisions, whether they constitute an abuse of discretion or concern an unsettled area of law. They can seek this review regardless of the possibility that their client might be convicted and pursue an appeal. And counsel should cite Weeks to obtain review of any and all adverse legal rulings based upon the court’s assessment facts, even if they are disputed.

Surprise Ending!

The Weeks opinion was intended to give the advantage to the State in a hotly contested capital murder case, which was well fought by Esparza, Hawthorne, and Thibodeaux. Perhaps this is why the majority opinion deviated so far from the ordinary course upon which we see decisions concerning writs of mandamus traverse.

Upon receiving the case back from the high Court, the trial Court, sua sponte, granted a mistrial. The question is, will the defense take up the majority’s invitation to review trial Court rulings during the re-trial? We will anxiously wait and see.

Notes

1. “Intent to promote or assist.” § 7.02 (a)(2) Texas Penal Code.
2. Stating that the trial Court’s “assessment of the evidence to determine whether it supports the inclusion of an instruction under section 7.02(a) in the court’s charge is not a ministerial act, but rather is an exercise of judgment and judicial determinatio . . . ,” the Waco Court of Appeals also declined to resolve a “dispute about the state of the evidence in an original mandamus proceeding.” See In re State of Texas ex rel. David P. Weeks, No. 10-12-00443-CR (Tex. App.—Waco, Dec. 2012) (emphasis in original).
3. “We conditionally grant relief” In re State of Texas ex rel. David P. Weeks, Nos. AP-76,953 and AP-76,954 (Tex. Crim. App. Jan. 16, 2013).
4. The defendant, John Ray Falk.

January/February 2013 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
20 | The 32nd Annual Prairie Dog Lawyers Advanced Criminal Law Course
24 | My Report to TCDLA – By F. R. Buck Files, Jr.
28 | Attenuation of Taint: Empty Promises of the Fourth Amendment – By Janet Burnett
34 | Way Opened for Mid-Trial Review of Trial Court Rulings – By Cynthia Hujar Orr
41 | Ex Parte Sealed Motion for Order for Joe Doctor to Produce Medical Records of Complainant to Counsel – By Chris Iles

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

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

President’s Message: Moving the Docket – By Lydia Clay-Jackson

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I would like to thank publicly our SBOT President, Buck Files, for making a demonstrative effort to include ALL lawyers in policymaking decisions for the Bar.

As TCDLA President, I join with all TCDLA members in taking pride seeing the names of its members listed prominently on the rosters of SBOT committees. The filling of these positions by our SBOT President has finally given criminal defense lawyers a seat at the big “table.” I am thankful for this demonstration of respect for criminal defense lawyers. Thank you, President Files.

In response to inquiries on our Young Lawyers/Law Student listserve, this article is written.

Graduating from law school when all state post-graduate schools were 4 dollars a credit hour and 40 dollars an hour for out-of-state students perhaps shades one’s understanding. Today, post-graduates may be burdened with school loans the size of a home mortgage—without the home. Regardless, when a person passes the bar and takes a job with a district attorney’s office, they are charged by law “not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” CCP Art 2.01.

Think, if you will, of those perversions of justice called “Jail Dockets.” Here, those who find themselves charged with various misdemeanors are gathered to be coerced, by circumstance, to take “timed served” offers. Even more illustrative are those “today only offers”: The defense lawyer is hard pressed to illustrate to the client that more time to investigate may serve to dem­on­strate their innocence, or at least, whether they may be culpable of a lesser offense. Both these examples of perversions of justice are initiated, with impunity, by those who are bound by law to seek justice, not merely convictions. Willingly initiating these practices, to “move the docket,” may be the excuse to justify the actions, but honestly, it is merely an illustration of blindly following an easy way to keep a paycheck. Under such circumstances clients coerced to make quality of life decisions rightfully lose respect for the justice system.

How is it that these practices are not seen as the legal example of “the Emperor’s New Clothes”? There is not a shred of justice in these practices. Yet as glaring as these injustices are, we hear not a word from those who make law. Instead, we, the stalwart defenders of our fundamental rights, are accountable when these practices backfire. As criminal defense lawyers forced to participate in this perfidy, we must nonetheless relay all offers to our clients. In spite of this, we do all we can to protect those who have entrusted their liberty and lives into our skills.

Moving the docket is only one of the inane reasons for these practices. Undoubtedly, the docket will move just as quickly with just a bit more effort and “thought” on the part of those charged by law to seek justice. Would not statements such as, “I will dismiss this because the complainant cannot be found,” or, “I will dismiss this because the video, which the officer wrote in his report stated he showed the accused committing the offense, cannot be found,” move the dockets just as quickly? Intellectual honesty, a bit of time and “thought,” on the part of those charged by law to seek justice, not conviction, will go a long way in re-establishing respect in our system.

To the young criminal defense lawyer: Do not compound these half-baked perversions by violating your Professional Responsibility. Ask the prosecutors if their offers were made because of “policy,” and if so how, ask how justice is served in this particular case. Note their responses in your file. Do not bring your client before the bench to reveal your communications with words such as, “Did I tell you that the DA’s offer was ‘x’ and that I thought with investigation the case might be dismissed or the charge could be ‘y.’” Did you get your client’s permission to put your discussions on the record, or did you simply say YOU wanted to put it on the record? All you need do is get your client to sign off on your drafted written waiver of the contents of your discussion. Then place the document in your file. We must give concerted thought on how to bring about meaningful change. Change will come by documentation not anecdotal recollection.

We are not unlike Kermit and his green color; it is not easy being a criminal defense lawyer, but we would rather not be anything else.

Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.

—Martin Luther King Jr.

Good verdicts to you all.
The Hat Lady

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

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Special thanks to Nathan Miller (Denton) and Tony Ross (Denton), our course directors for the 5th Annual Hal Jackson Memorial Jolly Roger Criminal Law Seminar held in Denton in December. Thanks to their efforts and our speakers we had 89 attendees.

Special thanks John Ackerman, our course director for our Psychodrama Program, an intense five-day program held at the Round Top Institute in Round Top, Texas. Thanks to John, our psychodramatists, and faculty, we had an outstanding program with 35 attendees. This program is being moved to October 23–27, 2013, at the Round Top Institute. We already have seven pre-registered participants.

Thanks to David Guinn (Lubbock), our course director for the Nuts ’n’ Bolts seminar held in Lubbock in January. Thanks to David and our speakers we had 33 participants.

And special thanks also to David Guinn for being course director for the 32nd Annual Prairie Dog seminar held in Lubbock in January. Thanks to the Lubbock Criminal Defense Lawyers Association and our speakers we had 188 participants. This was the 32nd year LCDLA has put on this major event. TCDLA/CDLP is honored to support LCDLA’s efforts. Special thanks to all of the LCDLA members who contributed to all of the events and to Texas Tech Law School for sponsoring lunch Friday. Thanks to the Outlaw Grillers, guided by Bill Trantham (Denton), for the wonderful barbecue Saturday. There were no major fires and no one was seriously injured.

Special thanks to William Habern, David O’Neil, and Gary Cohen, our course directors for the Post-Conviction seminar held in Houston in January. Thanks to our them and our speakers we had 77 attendees.

Special thanks to Troy McKinney (Houston), our course director for the Public Defender DWI seminar held in Edinburg in January. Thanks to him and our speakers and Jaime Gonzalez, Public Defender (Edinburg), we had 55 attendees.

Special thanks to Rick Bunch (Wichita Falls), James Rasmussen (Wichita Falls), and Michael Gross (San Antonio), our course directors for the Gideon’s Trumpet seminar held January 25 in Wichita Falls. Thanks to their efforts we had 34 attendees.

The TCDLA lobby team of Allen Place (Gatesville), David Gonzalez (Austin), and Kristin Etter (Austin) are down at the State Capitol ensuring that the rights of the accused in Texas are protected. Here is list of the issues TCDLA is actively working on:

  1.   To support a viable and meaningful exculpatory evidence statute
  2.   Minor amendments to the expunction and nondisclosure statute
  3.   Possible revision of public intoxication statue
  4.   Actively engage on all bills that unfairly make changes to the criminal justice system.

Please sign up and follow TCDLA’s legislative efforts on the TCDLA Legislative listserve. Please call the Home Office if you have any questions regarding how to sign on (512-478-2514).

Please join us at the Crowne Plaza in downtown Dallas for the TCDLA Cross-Examination seminar March 7–8, 2013. The seminar course directors are Randy Wilson (Abilene) and Tyrone Moncriffe (Houston), and they have put together an outstanding lineup of speakers. Please go to our website for the entire two-day schedule.

TCDLA Board of Directors invites you to attend the next quarterly board meeting on Saturday, March 9, at 10:15 am. The board meeting will be at the Crowne Plaza Hotel in downtown Dallas. Scholarships are available.

Good verdicts to all.

Editor’s Comment: Help Wanted – By Greg Westfall

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When I started as editor of the Voice with the July/August issue in 2009, we were a print-only magazine running 10 issues per year to our members plus the Texas judges. We are still that. But we are also a lot more now.

Thanks to the insanely hard work of Craig Hattersley, Melissa Schank, and Stacy Clifford, we now have an impressive online magazine as well. Our monthly unique users roughly equal our printed circulation. Thus, for all intents and purposes, our readership has doubled since 2009. Last year, we had over 30,000 unique visitors who visited the Voice Online approximately 55,000 times, looking at around 140,000 pages. We now have readers around the world.

After February 2011, when the Voice Online was born, really working the Voice became a much bigger job than it had been as just a print magazine. Before, we just had to find articles (no small feat, at times) and get them edited, laid out, and published. As an online magazine, we have many more things that ought to be done.

I am writing this because I need help with our magazine.

In October 2010, after a minor heart attack (my words, not my wife’s), I left my law firm of 9 years and joined a medium-sized civil firm in Arlington. I now do about 50/50 criminal and civil litigation. And I’m crazy busy. I’ve also been really distracted, absorbed in trying to build a new practice after almost 20 years. So, honestly, for the last year, I have not been pushing the Voice as much as it needs to be pushed. While the job of the Voice editor has more than doubled in size, I have been increasingly unavailable.

Here is what needs to be done and what I envision for the future.

First of all, I think that we should always have editors drawn from our membership. We should not give in to the temptation to try to find professional editorial staff for the Voice. It has been my distinct honor to be the editor of the Voice. The line of editors in TCDLA is filled with people I have been proud to follow.

Second, I believe we need an editor to just run the Voice Online and the blog. That editor could guide the online content and try to find bloggers (hopefully with more luck than I have had in doing so). Active blogging would cause the Voice Online to take off. The constantly changing content would raise our rankings in the search engines and the blogging would increase our readership.

Our online editor could also be in charge of updating our Facebook page, which could be done at least once a week with just the features from the Voice Online. We could also start a Twitter account, or, more likely, send out tweets on TCDLA’s account with links to the Voice Online.

Finally, our online editor would be in charge of preparing the email blasts for Melissa to send to the membership. Every time Melissa sends one of these, we experience a spike in visits to the site. They are great. Blasts can also be conducted on the listserve, and I used to do this.

The editor of the print magazine could do what the editor has always had to do—hustle articles and edit. Getting articles is easier when the Voice Online is going strong, as the online presence generates authors. But the quantity of good articles always ebbs and flows. The print editor could help the online editor on an as-needed basis and should be willing to do blog work.

The blog could stand to have several active authors. In the beginning, I was able to convince a few authors to blog. Tony Vitz contributed, as did Mark Griffith and Emily DeToto. But we need regulars. There is a lot of chatter on the listserve that would be great blogging material, but to date nobody had taken up the challenge to do it.

So, for the editors, one of the challenges would be to find articles, the other would be to find regular bloggers.

I can think of one thing that might help. We in TCDLA have a “rule” that everyone on the board is supposed to write two articles for the Voice. Of course, nobody does. But what if the rule were to write two or three 500-word blog posts?

There is no set term limit for the Voice editor. That said, I expected to do it for three years. I am coming up on four. At this point, I have done just about all that I set out to do. It is time for some new blood.

One thought that has occurred to me is to have staggered terms for two editors. That way, there would always be overlap and nobody would ever start out cold. Thankfully, as long as we have Craig and Melissa, we don’t need to worry so much about a ramp-up period training a new editor. But there is still an adjustment period and staggered terms would take care of that.

So what say you all? I will stay on for another year if someone wants to step up and be a co-editor. Or not. If two folks step up and want to just take it over, that’s fine also. But we need someone.

Apply within.

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