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April 2013

March 2013 SDR – Voice for the Defense Vol. 42, No. 2

Voice for the Defense Volume 42, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Neither a statutory nor a constitutional right of competency to stand trial exists in federal habeas corpus proceedings. Ryan v. Gonzales, 133 S. Ct. 696 (2013).

        The Ninth and Sixth Circuits found that state inmates who were sentenced to death and seeking habeas relief in federal district court were entitled to have the proceedings stayed until it was determined that they had the ability to assist counsel. The Supreme Court reversed the Ninth Circuit’s judgment, and vacated the Sixth Circuit’s judgment and remanded that case for reconsideration of whether a stay might be appropriate for D’s fourth claim, noting that an indefinite stay would be inappropriate.

        The Ninth Circuit found that 18 U.S.C.S. § 3599 gave an inmate who was convicted of a capital crime the right to have his habeas corpus action stayed until he was competent and could assist his counsel, and the Sixth Circuit found that § 4241 gave the same right. The Supreme Court disagreed. Although the Supreme Court previously held that U.S. Const. amend. VIII prohibited a state from carrying out a death sentence upon a prisoner who was insane, neither § 3599 nor § 4241 gave inmates a right to suspension of their federal habeas corpus proceedings when they were incompetent. Given the backward-looking, record-based nature of proceedings under 28 U.S.C.S. § 2254, counsel could generally provide effective representation to a habeas petitioner regardless of petitioner’s competence. Even if the district court were to decide that the defendant’s competence was necessary, it should only grant a stay if the defendant is likely to regain competence in the foreseeable future.

Fifth Circuit

Texas district court’s stay of D’s execution represented an implicit determination that D had a likelihood of succeeding on the merits of his motion for relief; that determination was incorrect. Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012).

        D’s motion turned on the intervening Martinez v. Ryan, 132 S. Ct. 1309 (2012), and a change in decisional law does not constitute exceptional circumstances justifying relief from judgment under Fed. R. Civ. P. 60(b)(6). D’s second-in-time federal habeas petition was successive because it raised claims that were identical to two claims raised in D’s initial federal habeas petition; because the petition was successive, the district court had no jurisdiction to consider it. The Fifth Circuit dismissed that petition and vacated the stay of execution.

In sentencing D for attempted export of arms, district court did not err in applying a base offense level of 26 under the pre-2011 version of USSG § 2M5.2. United States v. Diaz-Gomez, 680 F.3d 477 (5th Cir. 2012). 

        Under the pre-2011 Guidelines, the lower base offense level of 14 was limited to cases where a defendant possessed only non-fully automatic arms in a quantity not greater than 10. The fact that D also possessed ammunition (611 rounds) for his non-fully automatic firearm disqualified him from the lower base offense level.

The rule that non-citizen defendants be advised about the potential removal consequences arising from a guilty plea did not apply to D’s case retroactively. United States v. Amer, 681 F.3d 211 (5th Cir. 2012).

        The rule of Padilla v. Kentucky, 130 S. Ct. 1473 (2010)—namely, that the Sixth Amendment imposes upon attorneys representing non-citizen defendants a constitutional duty to advise about the potential removal consequences of a guilty plea—is a “new rule” that does not apply retroactively to convictions that became final before Padilla. D’s conviction became final in 2009, before Padilla was decided. NOTE: Chaidez v. United States, No. 11-820 (U.S. Feb 20, 2013), affirmed that Padilla does not apply retroactively.

D not entitled to habeas relief even though the court reporter lost her notes, impairing resolution of D’s challenges to his conviction; district court could likely have reconstructed an adequate record. Register v. Thaler, 681 F.3d 623 (5th Cir. 2012).

        Although the district court granted Texas state D (convicted of possession or transportation of anhydrous ammonia) federal habeas relief on the ground that the reporter for the state trial court lost her notes, impairing resolution of D’s challenges to his conviction, the Fifth Circuit was persuaded that the district court could likely have reconstructed an adequate record. The Fifth Circuit vacated the grant of relief and remanded to the district court for further proceedings, including reconstruction of the record that the state trial court had before it when it reviewed D’s state habeas petition. The Fifth Circuit noted that D must first make a preliminary showing that further factual development of his claims might be fruitful and noted that even on the present record, some of these claims clearly could not succeed.

The AEDPA’s standard of review is not unconstitutional under U.S. Const. art. III. Cobb v. Thaler, 682 F.3d 364 (5th Cir. 2012).

        AEDPA’s 28 U.S.C. § 2254(d)(1) does not intrude on the independent adjudicative authority of the federal courts; rather, it limits the grounds on which federal courts may grant the habeas remedy to upset a state conviction. Congress may constitutionally grant federal courts habeas jurisdiction over collateral challenges to state convictions and yet limit the availability of the remedy to exceptional circumstances.

        In rejecting D’s claim that the State had suppressed exculpatory/impeaching information—namely, a letter in the district attorney’s file from a jailhouse informant—the Texas state courts did not unreasonably apply Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. No clearly established law establishes that evidence is suppressed under Brady when it is in the open file of a co-defendant. It was not unreasonable for the state courts to conclude that the prosecution satisfied its Brady obligation by providing open access to the case files for the two co-defendants. It was also reasonable for the state courts to determine that the letter was not “material” within Brady, as it would not have added significantly to the impeachment ammunition D’s counsel already had for the informant.

D made a clear and unequivocal invocation of his con­stitutional right to represent himself; the state trial court erroneously denied D’s request. Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012).

        The state appellate court’s implicit finding that Louisiana armed-robbery D waived his right to represent himself after asserting the right was unreasonable in light of the evidence presented and violated Faretta v. California, 422 U.S. 806 (1975). The Fifth Circuit affirmed the district court’s grant of federal habeas relief.

District court did not err in dismissing a juror for lack of candor and failure to abide by instructions. United States v. Ebron, 683 F.3d 105 (5th Cir. 2012).

        Because the reasons for juror dismissal did not implicate the deliberative process, the Fifth Circuit declined to scrutinize the dismissal under the more stringent standard used by other circuits. Nor did the district court abuse its discretion in refusing to grant D’s motion for mistrial following the dismissal. Nor did the court plainly err in its instructions to the remaining jurors with respect to the dismissal.

        Furthermore, in this prison-murder case, district court did not err by admitting, as a statement against penal interest under Fed. R. Evid. 804(b)(3), a co-actor’s statement to another prisoner in which the co-actor incriminated D. Given that the statement was made in casual conversation, and not in custodial interrogation, the Fifth Circuit declined to find the statement barred under the fractured opinions in Williamson v. United States, 512 U.S. 594 (1994), and Lilly v. Virginia, 527 U.S. 116 (1999).

In bank-robbery case, district court did not err in refusing to sever the cases of the two co-defendants; the mere fact that there was a romantic relationship between them did not create sufficient prejudice to overcome the preference for joint trials, especially in light of the cautionary instructions given. United States v. Owens, 683 F.3d 93 (5th Cir. 2012).

        Furthermore, female D was not entitled to a severance based on her claim that if the Ds were given separate trials, the male D would testify on her behalf. To establish this ground for severance, a defendant needs to produce an affidavit or similar proof from the co-defendant himself. D produced only her attorney’s affidavit about co-defendant’s willingness to testify.

        Nor did district court err in denying D’s motion for a mis­trial following the government’s mention of a digital scale found in D’s bedroom, in violation of an in limine order respecting extrinsic-offense evidence under Fed. R. Evid. 404(b). The court sustained the defense objection thereto, cutting off further inquiry. In light of the cautionary instructions given, the court could have reasonably concluded that this single reference to the digital scale did not warrant mistrial.

The U.S. Supreme Court vacated the Fifth Circuit’s judgment that D procedurally defaulted on his ineffective-assistance claim and that the default was not excused by the alleged ineffective assistance of state habeas counsel; the Fifth Circuit remanded to the district court. Cantu v. Thaler, 682 F.3d 1053 (5th Cir. 2012).

        The Supreme Court remanded in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). On remand from the Supreme Court, the Fifth Circuit remanded to the district court so the district court could decide in the first instance the impact of Martinez v. Ryan on D’s contention that he had cause for his procedural default.

In health care fraud prosecution, district court did not plainly err in admitting co-conspirator’s statements against D regarding money paid to accomplish the conspiracy. United States v. Grant, 683 F.3d 639 (5th Cir. 2012).

        Statements regarding money paid for services rendered in accomplishing the illegal goals of a conspiracy can be considered to have been “in the course and in furtherance of the conspiracy,” admissible under Fed. R. Evid. 801(d)(2)(E).

        Nor did the district court err in refusing to give a “missing witness” instruction with respect to a co-defendant, who plead guilty and was awaiting sentencing, because D did not show that the co-defendant was peculiarly within the control of the government. Moreover, the government’s decision not to call the co-defendant as a witness was already addressed in jury instructions to the effect that although the government was not required to call every witness possible, the jury could consider the government’s failure to call other witnesses or to produce other available evidence.

Court of Criminal Appeals

D’s consent to the breathalyzer test was conscious and voluntary, even though he repeatedly refused the test before consenting. Fienen v. State, No. PD-0119-12 (Tex.Crim.App. Nov 21, 2012).

        The trial court denied D’s motion to suppress the breathalyzer evidence, and D pled guilty to DWI. COA and CCA affirmed the decision to admit the evidence. Under the totality of circumstances, D made a conscious and voluntary decision to provide a breath specimen following his arrest. He was informed that he could refuse the breathalyzer, and he did so at least twice before his consent. Upon D’s initial refusal, officer followed standard protocol by preparing to obtain a search warrant for a blood draw. Officer’s demeanor was professional and accommodating, and his comments did not put undue psychological pressure on D. CCA overruled Erdman v. State, 861 S.W.2d 890 (1993), which held that law enforcement officials conveying information to DWI suspects besides the statutory warnings could have the effect of undermining their resolve and coercing their consent.

No egregious harm resulted from the failure to give an accomplice witness instruction because corroborative evidence connected D as a party to his wife’s possession of cocaine. Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App. 2012).

        COA reversed D’s conviction for cocaine possession, finding that egregious harm resulted from the trial court’s unobjected-to failure to give an accomplice witness instruction under Tex. Code Crim. Proc. art. 38.14, which requires the jury to find the testimony of the accomplice witness was corroborated before it can rely on that testimony. CCA reversed COA and remanded to that court to address a remaining claim of error.

        The inferences to be drawn from the State’s corroborating evidence more than sufficiently tend to connect D as a party to his wife’s possession of the cocaine found in her purse, and thus supported the admission of her accomplice testimony. For the jury to discount that tendency, it would have had to accept D’s less-than-creditable explanations. The corroborating evidence showed that the cocaine was found in the hotel room D was sharing with his wife, D appeared to be under the influence, his paranoia appeared to be escalating, and he conceded he was aware that his wife was ingesting drugs. Further, no egregious harm resulted when the court erroneously neglected to read the guilt-phase jury charge aloud before sending the jury to deliberate; it can be presumed that the jurors followed the instructions to read the charge aloud in the jury room.

The State can appeal a decision dismissing any portion of an indictment. State v. Richardson, 383 S.W.3d 544 (Tex.Crim.App. 2012).

        D was indicted for multiple counts of intoxication assault arising from a crash. The indictment included enhancement paragraphs incorporating D’s Iowa convictions for “operating under the influence, intentionally causing serious injury.” The trial court refused to allow use of the Iowa convictions to enhance the punishment range for multiple counts of intoxication assault. The State appealed the court’s refusal. COA dismissed the appeal due to lack of jurisdiction. CCA remanded to COA.

        Tex. Code Crim. Proc. art. 44.01(a)(1) permits the State to appeal an order that “dismisses any indictment, information, or complaint or any portion of an indictment, information, or complaint.” The quashed enhancement paragraphs were alleged in the indictment, and thus are literally a portion of the indictment, even though the State was not required to plead enhancements in the indictment.

Upon independent review of the evidence, CCA concluded that D did not receive ineffective assistance of trial or appellate counsel. Ex parte Flores, 387 S.W.3d 626 (Tex.Crim.App. 2012).

        D was convicted of two counts of capital murder. He filed a habeas writ based on ineffective assistance of trial and appellate counsel. After taking additional evidence, the habeas judge recommended CCA grant relief on two ineffective assistance claims: failing to present the expert testimony of particular doc­tors at trial, and failing to raise sufficiency of the evidence on direct appeal. CCA denied relief.

        D’s trial counsel was not ineffective for failing to call an out-of-town expert witness because after investigating the facts, trial counsel retained a well-known, highly qualified lo­cal expert with whom he had worked. The local expert assured counsel that he could testify to the causation issue, and calling the out-of-town expert could have presented pitfalls for the defense. Trial counsel was not ineffective for failing to call the chief medical examiner because his ultimate conclusion provided nothing more than the expert who counsel did call, and D did not explain how the examiner’s testimony would have affected the outcome of his trial. D’s appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence on direct appeal because D failed to show a reasonable probability that he would have prevailed on the claim.

D proved by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of new evidence, including initial expert’s retraction. Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012).

        This is a subsequent habeas corpus writ in which applicant asserted she has newly available evidence that: (1) shows she is innocent of capital murder; and (2) but for constitutional errors, she would not have been found guilty. In 2007, CCA found that the application satisfied the requirements for a subsequent writ and remanded the application to the trial court. Here, CCA granted relief and remanded for a new trial.

        In accordance with CCA’s remand order, the trial court held an evidentiary hearing. D presented testimony of six experts. Relying on new biomechanics, the witnesses testified that the baby’s fatal injuries could have been caused by an accidental fall on concrete. Dr. Bayardo, the medical examiner who testified at trial that D’s position that the injuries resulted from an accidental fall was false and impossible, testified at the hearing that he now believes there is no way to determine with a reasonable degree of medical certainty whether the injuries resulted from an intentional act of abuse or an accidental fall. The State presented five experts who testified that notwithstanding the studies cited by D, it was very unlikely that the injuries were caused by an accidental fall.

        Following the hearing, the trial court recommended grant­ing a new trial. The trial court found that all the expert witnesses were truthful and credible, and that Dr. Bayardo’s re-evaluation of his 1995 opinion is based on credible, new scientific evidence and constitutes a material exculpatory fact. In post-conviction habeas review, CCA will accept the convicting court’s findings of fact and conclusions of law, as long as the record supports them, and need not accept the trial court’s conclusions concerning actual innocence.

The forensic psychologist’s “weapon focus effect” testimony offered by D was relevant to his aggravated robbery case, especially because scant evidence established D as the assailant. Blasdell v. State, 384 S.W.3d 824 (Tex.Crim.App. 2012). 

        COA affirmed the trial court’s finding that the expert testimony was not relevant in D’s aggravated robbery case. The only evidence against D was the identification testimony of the victim. D offered testimony from a forensic psychologist intended to educate the jury about the “weapon focus effect.” The trial court ruled that this expert testimony was irrelevant because it was insufficiently tied to the facts of the case; COA affirmed that the trial court did not err in excluding the testimony for a lack of “fit.” CCA reversed and remanded to COA.

        Given the content of the expert testimony, the context in which it was offered, and, most pertinently, the paucity of other evidence to establish D’s identity as the assailant, COA erred in concluding that the psychologist’s weapon focus effect testimony was not relevant to the case.

CCA denied habeas relief and cited D for abuse of the writ for falsifying his application. Ex parte Gaither, 387 S.W.3d 643 (Tex.Crim.App. 2012). 

        D pled guilty to burglary and engaging in organized criminal activity. He filed this habeas corpus application, alleging ineffective assistance of trial counsel. CCA denied relief and cited D for abuse of the writ under Tex. Code Crim. Proc. art. 11.07, § 4.

        CCA agreed with the trial judge that in using information he knew was false to fill out his application, D abused the writ process. Based on the record and the supplemental findings, D’s counsel did not coerce him or provide him with erroneous information regarding the plea offer. Additionally, counsel’s failure to object to the consecutive sentences was not deficient. D clearly knew that these two sentences would be served consecutive to his prior burglary sentence; D falsely claimed ignorance in his writ application. The denial of a frivolous initial writ application under Article 11.07 acts as a bar to further writ applications, except for the few exceptions in Article 11.07, § 4. Furthermore, under the terms of the plea agreement, D waived his appellate rights.

The district clerk is instructed to accept D’s habeas corpus application, which includes additional pages. Stanley v. Bell County Dist. Clerk, No. AP-76,929 (Tex.Crim.App. Dec 12, 2012). 

        Although the district clerk has the authority to return a writ application when an applicant is not using the correct ap­plication form, Tex. Rule Appellate Proc. 73.2, D used the correct form and substantially complied with the instructions. The clerk had replied, “You must briefly summarize the facts on each ground, additional pages can not be added within your application.” D’s application may include some additional pages that are technically non-compliant, but it appears that these pages are not meant to replace the form but give additional answers to questions on the form.

D failed to establish that the State did not exercise due diligence in his community supervision revocation. Garcia v. State, 387 S.W.3d 20 (Tex.Crim.App. 2012).

        The trial court revoked D’s community supervision. COA reversed. CCA reversed COA and reinstated the trial court’s judgment. The State had filed its motion to revoke while D was still on community supervision, and a capias was issued but not executed until two years after D’s community supervision expired. After pleading true to the allegations in the motion, D raised an issue regarding the State’s delay in executing the capias. COA held that the State was required under common law to exercise due diligence in prosecuting a motion to revoke community supervision; CCA held that COA applied the wrong standard. The common-law requirement that the State exercise due diligence in prosecuting a motion to revoke community supervision was superseded in 2003 by Tex. Code Crim. Proc. art. 42.12, § 24, which made due diligence an affirmative defense and applicable to only two allegations (“failure to report to a supervision officer as directed or to remain within a specified place”). Remand is unnecessary as the due-diligence defense is inapplicable to D’s failure to complete substance abuse treatment.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

In prosecution for evading arrest, D unsuccessfully ar­gued that since he had no reason to flee, he had no rea­son to suspect officers were attempting to detain him. Gamino v. State, No. 14-10-01091-CR (Tex.App.—Houston [14th Dist] July 24, 2012).

        “While evidence that [D] was committing a crime when officers attempted to detain may establish that [D] had a motive to flee from police, [D] cites no authority suggesting that such evidence is necessary.”

        Also unsuccessful was D’s argument that officers did not “lawfully” detain him because officer’s vehicle did not comply with all-terrain vehicle regulations (e.g., did not have triangular orange flags, officer not wearing helmet). “[D] cites to no authority suggesting that peace officers must follow all traffic laws in order for an attempted detention or arrest to be lawful. Such a requirement would lead to the absurd result that police would be prohibited, for example, from pursuing a suspect who is exceeding the speed limit.”

Officer’s asking D if he would mind emptying his pockets did not convert consensual encounter into detention. State v. Anderson, No. 11-11-00301-CR (Tex.App.—Eastland July 26, 2012, pet. ref’d).

Officer lacked RS where he merely observed D’s vehicle in parking lot late at night with its headlights and left turn signal illuminated and driver’s side door open, even though businesses in the vicinity were closed and despite officer’s hunch regarding the possibility of burglary. Hernandez v. State, 376 S.W.3d 863 (Tex.App.—Fort Worth 2012).

        Community caretaking not shown; although officer believed D might be in need of assistance because he saw D bump his head on vehicle’s steering wheel, such alleged distress arose only upon officer’s shining a spotlight on D.

Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to buy time until the K-9 dog arrived. Campbell v. State, No. 12-11-00324-CR (Tex.App.—Tyler Aug 8, 2012, pet. ref’d).

        “[D] contends that the true purpose of the stop ended when he was cleared of any outstanding warrants. . . . (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that [D] and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]. . . . We initially note that [officer’s] remark concerning [other officer] ‘buying time’ is troubling. But the trial court was not required to examine [the] statement in a vacuum. The officers were justified in checking whether there were any outstanding warrants for [passenger]. . . . The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for [D] and [passenger] at the same time. But the officers were under no obligation to investigate the situation in any particular order.”

D’s consent to house search deemed voluntary, despite presence of twenty officers on D’s property and a police helicopter hovering overhead. Schield v. State, Nos. 01-11-00466-CR, 01-11-00467-CR (Tex.App.—Houston [1st Dist] Aug 9, 2012, pet. ref’d, untimely filed).

        “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’ . . . We find this case distinguishable. . . . [D] was behind a tall privacy fence on his prop­erty when [officer] called and asked him to come to the front of the property. . . . [O]nly two officers, with no guns drawn, approached the middle-aged [D] at his gate to ask for con­sent. . . . [D] further testified that none of the officers yelled at him, and that he made small talk with the officers before they asked him to sign the consent form.”

Activity of animal cruelty was not in plain view of officer, despite officer hearing (but not seeing) a puppy yelping. State v. Betts, No. 10-11-00419-CR (Tex.App.—Waco Aug 9, 2012, pet. granted).

D’s refusal to grant permission to search vehicle negated consent given by her common-law husband (issue of first impression). State v. Copeland, 380 S.W.3d 214 (Tex.App.—Corpus Christi Aug 9, 2012, pet. granted).

Trial court did not err in suppressing blood test result given officer’s failure to strike out inapplicable portions of “form” warrant affidavit before singing it. State v. Lollar, No. 11-10-00158-CR (Tex.App.—Eastland Aug 9, 2012).

        “At the hearing, [officer] confirmed that she did not perform any sobriety tests. She admitted that paragraph seven of the affidavit was untrue. . . . [Officer] admitted that she had not read the affidavit before she signed it. She ‘didn’t think to go back and read it and mark out stuff that did not apply.’ . . . Form affidavits can be a valuable tool for law enforcement when time is of the essence; if abused, they also have the potential to infringe on Fourth Amendment rights. . . . It is clear from the record, especially the findings of fact and conclusions of law, that, due to credibility issues, the trial court became concerned with the entire affidavit, not just those portions attacked by the motion to suppress.”

In deciding that D, found sleeping in his vehicle, had “operated” the vehicle for purposes of DWI, among the factors considered were that D had his seatbelt on and had not reclined the driver’s seat and that the engine was running (despite D’s argument that the running engine served merely to power the heater). Schragin v. State, 378 S.W.3d 510 (Tex.App.—Fort Worth 2012).

Enhancement of Punishment Under Texas Law, Part I

I. Introduction

There is little that can affect sentencing more than prior convictions. Enhancements are affected by many areas of law. This has led to a seemingly piecemeal interpretation by the courts. The goal of this article is to draw together the often disparate current Texas laws concerning use of prior convictions for statutory enhancement of punishment. Given the format of this publication, the article is a two-part series. The first part will present an overview of enhancement law, discussing pretrial issues and admissibility of prior conviction records at trial. Part two will cover sufficiency of the evidence to prove prior convictions, challenge of enhancement by collateral attack, and appellate remedies for enhancement errors. Hopefully, this compilation will help clarify current enhancement law and provide a framework for the practitioner to approach these issues in an organized manner.

II. Overview of Enhancements

Enhancement is a procedure authorized and governed by statute. At the outset, it is important to understand that the statutes create two basic classes of enhancement. The first type of enhancement only raises the possible punishment applicable to the primary charged offense.1 The other type of enhancement actually creates a new offense by raising the offense level of the charged crime upon proof of a prior conviction.2 Basically, one type of enhancement statute provides for an increase in punishment only and the other makes a prior conviction an element of a specific offense.3 These two different types will be referred to as “general enhancement” for punishment only and “element of offense” enhancements used to create a new separate statutory crime.

While both types of enhancements increase punishment ranges, significant procedural differences exist between the two. The most important distinction is that enhancements for “penalty only” affect the punishment stage of trial, and those constituting “elements of the offense” are part of the guilt-innocence phase.4 Other differences, discussed below, include the terms of required notice, preservation of error, and appellate remedies.

III. Statutes Define Qualified Prior Convictions

Prior convictions used for enhancement must qualify under the statutory scheme they are alleged.5 If an enhancement is an element of a new greater offense, the type of qualifying conviction will be specified in the statute defining the primary offense.6 Enhancements for the purpose of punishment only are stated in the general enhancement statutes defining the qualifying convictions by offense grade rather than specified crimes as elements of a new offense.7

a. General Enhancement

The general enhancement statutes raise the possible penalty range upon proof of a particular class of prior conviction. A particular conviction’s classification is either governed by the offense grade provided in the statute defining the offense or the penalty provided for that particular crime. A given conviction must qualify under the general enhancement statute it is alleged in order to be used to raise the penalty range.

Class A and B misdemeanor offenses may be enhanced by either prior misdemeanor convictions or a prior felony.8 “Misdemeanor” is defined both as “an offense so designated by law” and as one “punishable by fine, confinement in jail, or by both fine and confinement in jail.”9 For misdemeanor offenses outside the penal code, non-felony offenses are classified as Class B misdemeanors if punishable by possible confinement in jail.10 Any offense punishable by fine only is a Class C misdemeanor.11

Felony punishments may only be increased by proof of prior felonies.12 A “felony” is defined as “an offense so designated by law or punishable by death or confinement in the penitentiary.”13 For offenses not included in the Texas Penal Code, or prior convictions from other jurisdictions, the offense must meet the overall statutory classification of felonies.14

Different rules govern enhancement of state jail felonies and general felony enhancement. The Court of Criminal Appeals has recognized the term “state jail felony” has a different meaning than the term “felony” used in the general enhancement statute.15 This means that particular class of prior convictions is limited to either state jail felonies or ordinary felonies, depending on the text of the governing statute. Prior convictions for non-aggravated state jail felonies cannot be used to enhance other felonies.16 This places a limit on further enhancement of a state jail felony because the enhancement only increases the punishment and does not transform the primary crime into a new higher offense.17

b. Element of Offense Enhancements

When a specific prior conviction is made an element of the offense, the offense must fit within the actual elements of the crime defined by the particular enhancement statute.18 These statutes are considered “special enhancement provisions.”19 These special provisions also preclude use of those specified offense types for general enhancement even if additional convictions of that type are alleged beyond those necessary to raise the offense level.20 Other types of crimes, so long as they are distinct from the offenses listed in the special enhancement provisions and not used for both purposes, may be used as general enhancements to raise the punishment level of the increased offense created by the special enhancement.21

IV. Out-of-State Convictions

Foreign convictions from other states and federal jurisdictions can be used for Texas enhancement.22 The general enhancement provisions require only proof of a prior “felony” conviction from a jurisdiction within the United States.23 When a prior conviction from another jurisdiction is not labeled as a “felony,” its classification is determined by the length of the sentence and/or by the type of confinement facility.24

For documentation proving the foreign conviction to be admissible, the proponent of the prior conviction evidence has the burden to prove the other jurisdiction’s evidentiary requirements or the courts will presume the law is the same as in Texas.25 A trial court can take judicial notice of the other jurisdiction’s laws.26 This can be particularly important in situations where another jurisdiction considers a probated sentence final whereas Texas law would not.27

Some enhancement statutes permit use of foreign convictions identified only as the same type of crime as the charged offense if they have “substantially similar” elements.28 Whether elements are substantially similar is determined by examining “the individual or public interests protected and the impact of the elements on the seriousness of the offenses.”29 This determination is a question of law.30 Because the statutes require only the elements to be similar, the facts and circumstances of commission need not be similar to the charged offense.31

V. Multiple Use of Prior Convictions

There are restrictions on multiple use of individual prior convictions for enhancement. While the same prior conviction may be used for enhancement in different prosecutions,32 that particular prior conviction cannot be used multiple times in an individual case to both raise the offense level and to additionally enhance punishment for that increased offense.33 Certain statutes also have remoteness provisions and a single conviction cannot be used both to demonstrate another conviction is not too remote and for another enhancement purpose.34 The rule against multiple use also applies if the prior convictions are part of the ele­ments demonstrating the object offense.35 Essentially, if an individual prior conviction is employed to show an allegation that must be specifically pled and proved for any enhancement purpose, then that same conviction may not be used again in that prosecution.36 The fact that a given conviction was used in a separate previous prosecution to raise an offense level does not disqualify its use in the new case as long as each single conviction is used only for one purpose.37

VI. Pretrial Issues

There are two major pretrial issues concerning enhancement: (1) notice and (2) whether a conviction qualifies as an enhancement offense. It is important to note that evidentiary issues may not be technically asserted by pretrial motion.38 Admissibility of evidence and sufficient proof of enhancement allegations will be discussed separately in part two of this article.

a. Written Notice Must Be Filed

Due process requires proper notice of possible enhanced punishment.39 This notice is considered a mandatory pleading.40 The form of the required pleading/notice differs between the two types of enhancement allegations. Prior convictions alleged as elements of the offense to raise the offense level are jurisdictional and must be in the charging instrument.41 General enhancements are non-jurisdictional allegations which raise only the penalty level and can be in another sort of pleading.42 Regardless of which type of enhancement is sought, the pleading must be in writing and filed with the clerk.43

The overall standard of review for notice is that the defendant should not be mislead about how the prior convictions will be used at trial.44 On the most basic level, the pleading must show the State intends to seek enhancement.45 When enhancement paragraphs are included in the charging instrument, this intent is implied and no other pleading is necessary.46 While jurisdictional allegations in the charging instrument signal intent to raise the offense level, there must be an additional pleading specifying any further intent to enhance the penalty beyond the initial increase in the offense grade.47 It is not necessary to state the sequence of multiple prior convictions.48

A complete lack of written notice of enhancement intent does not have to be raised by a pretrial motion; the possibility of more lenient punishment requires no objection.49 However, trial objections are necessary to preserve error from the lack of written notice. There must be an objection at the time the defendant is asked to enter a plea on the issue or when the evidence is offered for enhancement purposes.50 An objection is also necessary before any enhancement issue is submitted to the jury.51 A plea of true may waive lack of written notice.52

b. Sufficiency of Notice

General due process notice requirements are satisfied if the defendant is provided with sufficient information to properly contest an enhancement allegation.53 This means the prior conviction must be adequately identified to enable an appropriate investigation of the records and to prepare a defense.54

Enhancement allegations need not be plead with the same specificity as the primary offense.55 However, the notice should include at least the nature or name of the offense, the date of conviction, and the county where the conviction occurred.56 Inability to locate the conviction records based on the notice must be raised by a motion to quash.57 Other defects in pleading beyond identifying the conviction are issues to assert as variance claims when the matter is submitted to the jury.58

c. Time for Filing

Due process does require timely notice of possible enhancement.59 Prior convictions constituting elements of the offense necessary to raise the offense level are jurisdictional and must be stated in the charging instrument.60 Notice of non-jurisdictional allegations—i.e., general enhancement of punishment only—may be given after the charging instrument is filed and even after the guilt-innocence phase of the trial is concluded.61 However, the notice must be given before the punishment phase begins.62 Any error concerning the timing of notice must be preserved by showing harm or surprise in a sworn motion for continuance.63

VII. Admissibility

The evidentiary standard for admission of enhancement evidence is basic relevance. This consists of two basic “elements”: i.e., (1) whether the conviction exists, and (2) whether the defendant is the person previously convicted.64

There is no exclusive manner to prove a prior conviction for enhancement.65 Methods include use of records, testimony by a person with knowledge of the conviction, and admissions by the accused.66

Procedurally, an initial challenge to the relevance or competence of the evidence is considered at the time the evidence is offered. When evidence proving the prior conviction is tendered, the burden shifts to the opponent to show why the documentation is not reliable or qualified under the governing enhancement statute.67 If a proper showing of a defect is made, then the proponent must go forward with evidence to cure identified problems.68

a. Joining Issue

For any evidence to be admissible it must be relevant to a “fact of consequence” in the case.69 This means the parties must join issue on a question for the fact finder to decide. When the enhancement is an element of the offense, issue is joined at the beginning of the guilt-innocence phase when the defendant enters a plea to the charging instrument.70 When a prior conviction is alleged only to raise the punishment range, issue is joined at the beginning of the punishment phase when the allegation is read and a plea entered to that specific allegation.71 If the trial court assesses punishment, it is not necessary to read the allegations or enter a plea.72

An objection to a lack of a written pleading can be raised at the time the plea is entered. However, there is no obligation to object to the possibility that the State waived the issue and the defendant now risks a lower punishment.73 A later objection does appear to be required when the issue is submitted to the jury.74

A mistake in not reading enhancement paragraphs at the beginning of the punishment phase can be remedied by allowing the State to reopen, read the allegations, and permitting the court to accept the plea.75 Upon proper objection, the State must re-offer any evidence necessary to prove the allegation.76

The lack of any plea can be waived by a failure to object.77 Like an omission to read the filed allegation, the trial court must have an opportunity to correct the error.78 Any error is also subject to a harmless error review.79

b. Authentication of Records

Prior convictions are often shown by a certified copy of a governmental record.80 Authentication is a prerequisite to admissibility of any records.81 This is governed by Rules 901 and 902, Tex. R. Ev. (West 2012). “Authentication” is “evidence that would support a finding that the matter in question is what its proponent claims.”82

1. Pen Packs

The most common record used to prove a felony conviction is a “penitentiary packet,” commonly referred to as a “pen pack.”83 Pen packs are prepared by Texas Department of Criminal Justice Institutional Division (TDCJ-ID).84 Authentication of pen packs is not required if they are certified records,85 because such records are “self authenticated.”86 Certified copies, or copies shown by testimony to be correct, are admissible to prove the contents of that record.87

Pen packets are usually created as follows:88

    •    the clerk of the convicting court receives the originals of the judgment and sentence;
    •    the court clerk copies the documents and certifies those copies as correct;
    •    the certified copies are sent to TDCJ-ID;
    •    the records clerk at TDCJ-ID becomes the legal custodian of the certified copies now on file with its office;
    •    the TDCJ-ID clerk prepares and certifies a packet of the records.

 Stated differently, the documents become “self-authenticated” by each record custodian’s certification. The original records are held by the trial court clerk who makes copies and certifies them as correct.89 The trial court clerk then sends the certified copies to TDCJ-ID.90 Then the TDCJ-ID record clerk makes copies of the certified copies it received from the original clerk and certifies these are correct copies of the transmitted documents.91 Since the TDCJ-ID records custodian attests the copies received from the convicting court clerk were certified as true copies of the originals, the pen pack documents are not required to bear the previous certification from the original court clerk.92 Along with instruments from the trial court clerk, TDCJ-ID records may also contain other documents like fingerprint cards, photos, and orders affirming convictions.93 While certification will meet the initial authentication requirement, the accuracy of the documents can still be challenged.94

2. Original Records from Convicting Court

Another method of proving a prior conviction is to use the original records from the convicting court. This is the typical method used for misdemeanor convictions since TDCJ-ID records generally cover only felony commitments. Like pen packs, this procedure is also governed by Rules 901 & 902, Tex. R. Ev. (West 2012).

The general procedure is similar to authenticating pen packs, however; the certification comes from the clerk of the convicting court.95 In practice, the stamped and signed certification is considered the clerk’s “seal.”96 If there is no seal, then another officer must certify that the signer has official capacity and that the signature is genuine.97 Records showing the defendant’s identity, such as booking documentation, must also be authenticated and connected to the judgment.98

3. Other Types of Governmental Records

Electronic record keeping permits prior convictions to be proved without copies of the original paper records.99 A common method is an abstract recording the fact of conviction.100 An “abstract of record” is defined as “an abbreviated, accurate, and authentic history of trial court proceedings.”101 If properly authenticated, an abstract can be the “functional equivalent” of an original judgment and sentence.102

These computerized summaries of court records must still be authenticated in the same way as copies of the original judgment and sentence. For instance, the summary or abstract must actually be a document prepared by an official agency.103 Some evidence from the record itself or otherwise must also show it is the type of record “authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”104

c. Admissibility of Testimony Proving Prior Conviction

The existence of a prior conviction and identity of the accused can be proved without written records when a qualified witness testifies to those facts.105 The witness must both know the defendant and have personal knowledge that the person was convicted.106 An admission by the defendant107 or a stipulation will also prove the operative fact.108 In rare occasions both the fact of conviction and identity can be proved by the personal knowledge of the trial judge.109

VIII. Conclusion

Enhancement allegations are affected by so many areas of law that courts and advocates alike may have trouble knowing which standards apply to which procedure. The seemingly random way in which enhancements have been reviewed has also fostered an attitude that they need not be subjected to the same scrutiny as other charging matters or evidence offered in support. Hopefully, this article will assist both those challenging enhancements and courts reviewing those challenges so that enhancements can be approached more uniformly. A second part of this article will address other enhancement law issues concerning sufficiency of the evidence, challenges through habeas corpus, and appellate remedies.

Notes

1. Ford v. State, 334 S.W.3d 230, 234–235 (Tex.Crim.App. 2011) (statutory language stating an offense “shall be punished as” a greater offense increases the applicable penalty range while the grade of the primary offense remains the same); see also Ex parte Carner, 364 S.W.3d 896, 898 (Tex.Crim.App. 2012) (explaining that for the purposes of punishment only “a prior conviction . . . is an attendant circumstance to the [charged] crime that increases the severity of the offense”); Calton v. State, 176 S.W.3d 231, 234–235 (Tex.Crim.App. 2005) (enhancement of penalty is not a “component” of the primary offense—
“[t]here can be no enhancement until a person is first convicted of an offense of a certain degree”).

2. Calton, supra, at 234 (when a prior conviction is designated as an element of the offense, a new greater offense is created ); Diamond v. State, 530 S.W.2d 586, 587 (Tex.Crim.App. 1975) (misdemeanor theft alleged along with a prior conviction for theft creates a “creates a new offense of the grade of felony”).

3. Calton, supra, at 233–234.

4. See Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999)(“prior intoxication offenses are elements of the offense” of felony DWI and because “they define the offense as a felony,” they are part of the State’s proof in the “guilt-innocence state of the trial”); Ex Parte Sewell, 742 S.W.2d 393, 395 (Tex.Crim.App. 1987) (enhancements of penalty only are properly part of the punishment phase of the trial); but see Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App. 2001) (bench trial is a unitary proceeding).

5. See generally State v. White, 959 S.W.2d 375, 377–378 (Tex. App.—Fort Worth 1998, pet. ref’d) (state jail felony could not be enhanced with third-degree felony because that particular class of prior felony conviction is not included in the statutory language permitting enhancement).

6. Examples include Theft—Sec. 31.03 (e) (4) (D), Tex. Penal Code Ann. (2012) (misdemeanor theft under $1,500 raised to state jail felony if previously convicted of theft two or more times); Assault Family Violence—Sec. 22.01 (b) (2), Tex. Penal Code Ann. (2012)(Class A misdemeanor assault raised to third-degree felony upon prior conviction for assault, kidnapping, or indecency if the actor had a family relationship with victim as defined by Family Code); Evading Arrest—Sec. 38.04 (b) (2)(A), Tex. Penal Code Ann. (2012) (raised to third-degree felony if committed with a vehicle and previously convicted under that section); DWI—Sec. 49.09, Tex. Penal Code Ann. (2012) (DWI becomes a third-degree felony if previously convicted of DWI or other listed offenses).

7. See e.g., General Felony Enhancements—Sec. 12.42, Tex. Penal Code Ann. (2012) (stating guidelines for increased punishment upon proof of a qualifying prior felony conviction or convictions); General State Jail Felony Enhancements —Sec. 12.35 (c), Tex. Penal Code Ann. (2012) (raising state jail felony punishment upon proof of a prior felony or use of a deadly weapon or a conviction of listed offenses); General Misdemeanor Enhancement—Sec. 12.43, Tex. Penal Code Ann. (2012) (raising minimum punishment upon proof of prior felony or misdemeanor convictions).

8. Sections 12.43 (a) & (b), Tex. Penal Code (Supp. 2012); see also Sec. 12.43 (c), supra, permitting enhancement of certain Class C misdemeanors upon proof of three prior convictions within a 24-month period before commission of the new offense.

9. Sec. 1.07 (31), Tex. Penal Code Ann. (2012).

10. Sec. 12.41 (2) , Tex. Penal Code Ann. (2012); see also Axelrod v. State, 764 S.W.2d 296, 301 (Tex. App.—Houston [1st Dist.] 1988, pet. dism’d)(applying general misdemeanor enhancement provision of Sec. 12.43 (b) to Family Code offense because that statute included jail as a possible punishment and so constituted a Class B misdemeanor under Sec. 12.41 (2)).

11. Sec. 12.41 (3), supra.

12. See Sec. 12.42 (b), (c) or (d), supra, and Sec. 12.35 (c), supra.

13. Sec. 1.07 (a) (23) , Tex. Penal Code Ann. (Supp. 2012).

14. Sec. 12.04, Tex. Penal Code (Supp. 2012), provides as follows:

(a) Felonies are classified according to the relative seriousness of the offense into five categories:

(1) capital felonies;

(2) felonies of the first degree;

(3) felonies of the second degree;

(4) felonies of the third degree; and

(5) state jail felonies.

(b) An offense designated a felony in this code without specification as to category is a state jail felony.

See also Tapps v. State, 294 S.W.3d 175, 176 (Tex.Crim.App. 2009) (rejecting Black’s Law Dictionary definition of imprisonment for more than one year).

15. Campbell v. State, 49 S.W.3d 874, 878 (Tex.Crim.App. 2001) (as used in Sec. 12.42 (a), Texas Penal Code, terms “state jail felony” and “felony” are “mutually exclusive”).

16. Sec. 12.42 (e), Tex. Penal Code (Supp. 2012) (only regular felonies can be used to enhance offense designated by Sec. 12.42 (b) (c) or (d)).

17. See State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App. 2000) (enhancements under Sec. 12.42 apply “to the offense tried” so even if a state jail punishment was enhanced to a second-degree felony under Sec 12.35, the case for which he was convicted was still a state jail felony); State v. White, 959 S.W.2d 375. 376, 379 (Tex. App.—Fort Worth 1998, pet. ref’d) (state jail felony cannot be further enhanced as a regular felony and motion to quash enhancement paragraph should have been granted).

18. See Ex Parte Roemer, 215 S.W.3d 887, 889–890 (Tex.Crim.App. 2007) (conviction for “involuntary manslaughter” did not qualify as a conviction for “intoxication manslaughter” to raise offense level of DWI); Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.) (forgery could not be used as prior conviction for “theft”); Chambers v. State, 736 S.W.2d 192, 196 (Tex. App.—Dallas 1987, no pet.) (burglary did not qualify as a theft conviction since can be committed without completed theft).

19. Phifer v. State, 787 S.W.2d 395, 396 (Tex.Crim.App. 1990).

20. Phifer, supra at 396 (“special enhancement provisions for a primary offense have long been held to bar enhancement under general statutes only for prior offenses that could be used within the special provisions,” so prior felony DWI convictions could not be used under general enhancement statute where primary offense was DWI enhanced by other DWIs); Rawlings v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980) (theft could not be further enhanced by another theft although other non-theft felony convictions would qualify); Brown v. State, 14 S.W.3d 832, 833 (Tex. App.—Austin 2000, no pet.) (prior theft convictions, regardless of number, could not enhance theft of less than $1500 beyond a state jail felony).

21. See Phifer, supra, at 397 (burglary and arson convictions could be used for further general enhancement of DWI); Rawlings, supra, at 271 (could prove murder as general enhancement of DWI but not an additional DWI conviction); Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.) (prior forgery could be used to generally enhance theft enhanced by independent prior theft convictions).

22. Rushing v. State, 353 S.W.3d 863, 867 (Tex.Crim.App. 2011) (conviction under military UCMJ qualifies because the word “state” used in enhancement statutes has acquired a meaning that includes all areas subject to United States jurisdiction); see also, e.g., Bell v. State, 201 S.W.3d 708, 711 (Tex.Crim.App. 2006) (federal); Ex parte White, 211 S.W.3d 316, 319 (Tex.Crim.App. 2007) (Delaware); Robles v. State, 141 S.W.3d 250, 254 (Tex. App.—Austin 2004, pet. ref’d)(Puerto Rico); Wieghat v. State, 76 S.W.3d 49, 52 (Tex. App.—San Antonio 2002, no pet.) (courts martial). Use of convictions from foreign countries has not been litigated. Robles v. State, 141 S.W.3d 250, 252 (Tex. App.—Austin 2004, pet. ref’d)(“courts have not addressed whether prior felony convictions from foreign nations may be used for enhancement”).

23. See generally Sec. 12.42, Tex. Penal Code (Supp. 2012). Caselaw holding that prior convictions from other jurisdictions qualify for enhancement appears to be originally based on the term “felony” and the fact that the general enhancement of penalty statutes do not define offenses. Johnston v. State, 95 S.W.2d 439, 440 (Tex.Crim.App. 1936) (permitting use of Oklahoma conviction because statute permitted enhancement by “felony” conviction less than capital); Arnold v. State, 74 S.W.2d 997, 999 (Tex.Crim.App. 1934, on reh’g) (construing prior statute to permit use of federal conviction for felony offense which was also prohibited by Texas law); see also Practice Commentary to Sec. 12.41, Branch’s Texas Annotated Penal Code (3rd. ed. 1974) (suggesting applicability to convictions from other jurisdictions).

24. See Sec. 12.41 (1), Tex. Penal Code (Supp. 2012) (felonies outside Penal Code are considered third-degree felonies if imprisonment fixed in a penitentiary); see also, e.g., Ex parte Blume, 618 S.W.2d 373, 376 (Tex.Crim.App. 1981) (federal offense that would be a misdemeanor under Texas law was properly used as a prior felony because the statute specified confinement in a “penitentiary”); Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004, no pet.) (sentence for Missouri class C felony within range of punishment for Texas third-degree felony); Cain v. State, 721 S.W.2d 493, 494 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (considered two and one-half year sentence and facility).

25. Langston v. State, 776 S.W.2d 586, 587–588 (Tex.Crim.App. 1989).

26. Cox v. State, 931 S.W.2d 349, 355 (Tex. App.—Fort Worth 1996, pet. dism. as improvidently granted); but see Rule 202, Tex. R. Ev. (West 2012)(party requesting judicial notice of another jurisdiction “shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request.”).

27. See Skillern v. State, 890 S.W.2d 849, 883 (Tex. App.—Austin 1994, pet. ref’d) (because federal law provides probated sentences are final, a suspended sentence was available for enhancement).

28. See Sec. 49.09 (b)(1), Tex. Penal Code ( 2012) (offense substantially sim­ilar to Texas intoxicated manslaughter under Sec. 49.08 ( 2012)).

29. Outland v. State, No. PD-1400-11 (Tex.Crim.App. September 12, 2012) (both statutes “directed at the same individual and public interests: protecting children from sexual exploitation and the public from the dissemination of child pornography” and no significant disparity in penalty ); Prudholm v. State, 333 S.W.3d 590, 595 (Tex.Crim.App. 2011) (holding language of California sexual battery and kidnapping were not substantially similar to specific listed crimes for automatic life sentence because the California provisions protected primarily against offensive touching and restraint of movement rather than the Texas emphasis on penetration and abduction).

30. Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App. 2007) (because it is a question of law, no jury instruction necessary).

31. Cross v. State, 114 S.W.3d 92, 100 (Tex. App.—Eastland 2003, reversed on other grounds, 144 S.W.3d 521).

32. Sec. 12.46, Tex. Penal Code Ann. (2012) (“The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes”); Barnes v. State, 70 S.W.3d 294, 303 (Tex. App.—Fort Worth 2000, pet. ref’d) (same prior conviction can be used in different prosecutions with no double jeopardy implications).

33. Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Crim.App. 1986) (may not use “a prior conviction for the dual purpose of proving an essential element of an offense and enhancing that same offense”).

34. Rodriguez v. State, 31 S.W.3d 359, 364 (Tex. App.—San Antonio 2000, pet. ref’d) (prior DWI conviction used to show another prior conviction was within the 10-year statutory time period could not be used for additional punishment enhancement).

35. Ballard v. State, 149 S.W.3d 693, 699 (Tex. App.—Austin 2004, pet. ref’d) (could not use sexual assault conviction to establish duty to register as a sex offender and also as enhancement of failure to register conviction).

36. Moore v. State, 916 S.W.2d 537, 540 (Tex. App.—Dallas 1995, no pet.) (although a felony theft may have been based on prior misdemeanor thefts, that felony theft is a single conviction so those underlying convictions are not elements that must be plead and proved to permit use for enhancement).

37. Carroll v. State, 51 S.W.3d 797, 779–800 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (because proof of prior misdemeanor was not necessary to show a felony DWI conviction, use of an underlying misdemeanor DWI conviction as a jurisdictional element to raise the instant DWI to a felony did not preclude use of a separate felony DWI conviction which was previously based on that underlying misdemeanor as a penalty enhancement to increase the punishment for a third-degree felony; regardless of their elements, both were individual convictions on their own).

38. Meadows v. State, 170 S.W.3d 617, 620 (Tex. App.—El Paso 2005, no pet.) (trial court could not evaluate the sufficiency of the evidence to support family violence enhancement allegation on a pretrial motion to dismiss); but see Ex parte Patterson, 969 S.W.3d 16, 19–20 (Tex.Crim.App. 1998) (requiring a defect of form or substance to be raised prior to trial in a context where additional evidence was required to demonstrate defect not shown by State’s pleading).

39. Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006).

40. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997).

41. Art. 21.03, Tex. Code Crim. Proc. (2012); but see Throneberry v. State, 109 S.W.3d 52, 60–61 (Tex. App.—Fort Worth 2003, no pet.) (subject to harm analysis on both lack of pleading and variance from un-pled allegation).

42. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997) (all cases requiring that enhancement paragraphs must be included in indictment were expressly overruled).

43. Throneberry v. State, 109 S.W.3d 52, 59 (Tex. App.—Fort Worth 2003, no pet.) (oral motion to amend indictment insufficient if not physically amended and filed).

44. See Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App. 2010) (could assert enhancements after finding of guilt on lesser included offense because notice sufficient to prepare a defense to allegation); see also Riney v. State, 60 S.W.3d 386, 388 (Tex. App.—Dallas 2001, no pet.) (superceded indictment will provide the proper pleading and notice).

45. Fairrow v. State, 112 S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (extraneous offense notice insufficient as it does not indicate further intent to use as enhancement); accord McNatt v. State, 152 S.W.3d 645 (Tex. App.—Texarkana 2004, reversed on other grounds, 188 S.W.3d 198) (oral admonishment of possible enhancement along with impeachment if defendant testified did not provide notice—filed pleading required).

46. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (defendant put on notice of intent to enhance by presence of enhancement paragraphs in indictment).

47. McNatt v. State, 188 S.W.3d 198, 201 (Tex.Crim.App. 2006) (jurisdictional allegations to raise offense grade do not provide notice that the State will also seek an increased penalty range at the punishment stage).

48. Jingles v. State, 752 S.W.2d 126, 129 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (need not allege that one conviction occurred prior to the other).

49. Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App. 1989) (“unconscionable” to require objection to lack of any allegation more than necessary to charge a crime).

50. Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi 2006, pet. ref’d) (because defendant had actual knowledge of intent to enhance, failure to file pleading waived by failure to object when pen pack offered and by lack of a motion for continuance).

51. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (must object to any lack of pleading when the allegation is used to join issue in punishment); see also Fairrow v. State, 112 S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (preserved by motion for new trial).

52. Mayfield v. State, 219 S.W.3d 538, 540 (Tex. App.—Texarkana 2007, no pet.).

53. Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App. 2010).

54. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App. 1986) (test is whether the accused has been misled to his prejudice); Hollins v. State, 571S.W.2d 873, 875 (Tex.Crim.App. 1978) (must be able to find the conviction record).

55. Freda, 704 S.W.2d at 42.

56. Jackson v. State, 633 S.W.2d 897, 898 (Tex.Crim.App. 1982).

57. Cole v. State, 611 S.W.2d 79, 80 (Tex.Crim.App. 1981); Steadman v. State, 160 S.W.3d 582, 585 (Tex. App.—Waco 2005, pet. ref’d).

58. Cole, supra, at 80.

59. Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006).

60. Art. 21.03, Tex. Code Crim. Proc. (2012) (“Everything should be stated in an indictment which is necessary to be proved”); Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App. 2000) (“when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction”).

61. Oyler v. Boyles, 368 U.S. 448, 452, 82 S.Ct. 501, 504,87 L.Ed.2d 446 (1962); see also Pelache v. State, 324 S.W.3d 568, 576 (Tex.Crim.App. 2010) (“for purposes of conducting a due-process analysis, the determination of whether proper notice of enhancements was given does not require that notice be given within a particular period of time before trial or before the guilt phase is completed”); Villescas, supra, at 294 (“when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution”); but see Pena v. State, 191 S.W.3d 133, 139 (Tex.Crim.App. 2006) (strong dissent criticizing applicability of Oyler to the due process issue and distinguishing time for notice on the facts to which Texas courts have applied it).

62. Pelache, supra, at 576.

63. Villescas v. State, 189 S.W.3d 290, 295 (Tex.Crim.App. 2006).

64. Id. at 921.

65. See generally Flowers v. State, 220 S.W.3d 919, 921–922 (Tex.Crim.App. 2007), and Handspur v. State, 792 S.W.2d 239 (Tex. App.—Dallas 1990, reversed 816 S.W.2d 749, Onion J., dissenting) (illustrating numerous methods).

66. Id.

67. Robinson v. State, 739 S.W.2d 975, 799 (Tex.Crim.App. 1987)(burden shifted to defendant to show invalid jury waiver after otherwise regular judgment introduced).

68. McGinnis v. State, 746 S.W.2d 479, 482 (Tex.Crim.App. 1988).

69. Rule 401, Tex. R. Ev. (West 2012).

70. Turner v. State, 897 S.W.2d 786, 789 (Tex.Crim.App. 1995) (compliance with Art. 36.01, Tex. Code Crim. Proc., to “join issue” is mandatory because not doing so could mislead defendant into believing enhancement was waived); see also McNatt v. State, 152 S.W.3d 645, 651 (Tex. App.—Texarkana 2004, reversed on other grounds, 188 S.W.3d 198) (reading the indictment with jurisdictional allegations and acceptance of a plea joined issue).

71. Ex Parte Sewell, 742 S.W.2d 393, 395 (Tex.Crim.App. 1987) (reading of paragraphs and entry of plea on enhancement allegations mandatory under Art. 36.01, Tex. Code of Crim. Proc., to properly “join issue”).

72. Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App. 1973); Garner v. State, 858 S.W.2d 656, 660 (Tex. App.—Fort Worth 1993, pet. ref’d).

73. Marshall v. State, 185 S.W.3d 889, 903 (Tex.Crim.App. 2006) (obligation arises when submitted to jury); Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App. 1989) (no pretrial objection required for lack of enhancement pleading).

74. Marshall, supra, at 903; see also Throneberry v. State, 109 S.W.3d 52, 60 (Tex. App.—Fort Worth 2003, no pet.) (variance objection preserved charge error for reversal even though written notice error was found harmless).

75. Partida v. State, 279 S.W.3d 801, 805 (Tex. App.—Amarillo 2007, pet. ref’d).

76. Reese v. State, 340 S.W.3d 838, 843–844 (Tex. App.—San Antonio 2011, no pet.)(State must re-offer evidence after late reading of enhancement allegation but only that evidence necessary to prove the allegation); Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006, pet. ref’d) (error to permit jury to consider evidence offered before plea); Hernandez v. State, 190 S.W.3d 856, 871 (Tex. App.—Corpus Christi 2006, no pet.)(request for instruction that jury not consider evidence prior to plea sufficient to require re-offer of evidence proving enhancement allegations).

77. Lee v. State, 239 S.W.3d 873, 876–877 (Tex. App.—Waco 2007, pet. ref’d); see also R. 44.2(c)(4), Tex. R. App. Proc. (2012) (entry of plea presumed unless disputed at trial or shown by contrary record).

78. Lee, supra, at 876–877.

79. Id.

80. Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App. 1986) (“most popular method”).

81. Rule 901(a), Tex. R. Ev. (West 2012).

82. Id.

83. Reed v. State, 811 S.W.2d 582, 584–585 (Tex.Crim.App. 1991).

84. Id.

85. Rule 901 (b) (7), Tex. R. Ev. (West 2012) (authentication sufficient if writ­ings are authorized for filing as public record).

86. Rule 902 (1), Tex. R. Ev. (West 2012) (public documents under seal).

87. Rule 1005, Tex. R. Ev. (West 2012); Sims v. State, 783 S.W.2d 786, 789 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (business record affidavit not required).

88. See generally Reed v. State, 811 S.W.2d 582, 584–585 (Tex.Crim.App. 1991).

89. Id.

90. Id. at 584.

91. Id. at 585. In older pen packs, another official, typically the presiding judge of the county where TDCJ-ID is located, attests the record clerk’s signature and capacity. Id. In turn, the county clerk certifies the judge’s capacity to execute the certificate. Id. at 586; see also Carpenter v. State, 781 S.W.2d 707, 710 (Tex. App.—Dallas 1989, pet. ref’d) (all certification blanks must be signed by appropriate officer). This multiple certification procedure appears to be based on 28 U.S.C. § 1739, presumably to make pen packs admissible in other jurisdictions. Authentication is now governed by Rule 902, Tex. R. Ev. (West 2012), so that the interlocking certification is no longer necessary. See generally Reed, supra, at 586).

92. Reed, supra, at 586 (judgments are generally labeled as court documents so the certification is presumed); but see Banks v. State, 158 S.W.3d 649, 653 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (complete lack of seal or proof of signer’s capacity made Illinois pen pack inadmissible).

93. See, e.g., Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1984, on rehearing) (fingerprints and photos); Williams v. State, 899 S.W.2d 13, 15 (Tex. App.—San Antonio 1995, pet. ref’d) (“judgment affirming appeal”in pen pack).

94. Reed, 811 S.W.2d at 587.

95. See also Aikens v. State, 790 S.W.2d 66, 69 (Tex. App.—Houston [14th Dist.] 1990, no pet.) (deputy clerk may sign for clerk).

96. Rule 902 (1), Tex. R. Ev. (West 2012) (official seal and signature attesting sufficient); Linker v. State, 764 S.W.2d 35, 27 (Tex. App.—Fort Worth 1989, no pet.) (because document bore a seal, no additional attestation of records clerk’s capacity needed).

97. Rule 902 (2), Tex. R. Ev. (West 2012).

98. See Zimmer v. State, 989 S.W.2d 48, 53 (Tex. App.—San Antonio 1998, pet. ref’d) (fingerprint evidence on a booking slip did not provide sufficient reference to connect with the judgment of conviction).

99. Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007) (noting “the day may come in which written judgments are largely obsolete”).

100. See Mitchell v. State, 848 S.W.2d 917, 918 (Tex. App.—Texarkana 1993, pet. ref’d) (“abstract” of Indiana conviction).

101. Black’s Law Dictionary, p. 10 (6th ed. 1990).

102. Langston v. State, 776 S.W.2d 586, 588 (Tex.Crim.App. 1989); Mitchell, supra, at 918; see also Flowers, 220 S.W.3d at 925 (court printout sufficient in combination with driver’s license record).

103. Rule 901(b)(7), Tex. R. Ev. (2012).

104. See Rule 901 (b)(7), supra, and Blank v. State, 172 S.W.3d 673, 675 (Tex. App.—San Antonio 2005, no pet.) (mere fact the abstract bore a “seal” did not show it was the type of record authorized to filed in the certifying office, citing Rule 901).

105. Flowers v. State, 220 S.W.3d 919, 921–922 (Tex.Crim.App. 2007) (testimony by one who was present at time of conviction).

106. Roberts v. State, 321 S.W.3d 545, 555 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (officer knew defendant and had knowledge of conviction); Davis v. State, 268 S.W.3d 683, 717 (Tex. App.—Fort Worth 2008, pet. ref’d) (testimony by wife who knew defendant for years and had personal knowledge of penitentiary time was sufficient to prove identity).

107. Carlock v. State, 139 S.W.3d 90, 93 (Tex. App.—Texarkana 2004, no pet.) (neighbor testified defendant said he was previously imprisoned for sex convictions).

108. Bryant v. State, 187 S.W.3d 397, 402 (Tex.Crim.App. 2005) (stipulation was judicial admission even when not offered in evidence); but see Henry v. State, 331 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (finding stipulation insufficient because it only addressed conviction not sentence so documentation showed a notice of appeal defeated presumption of finality).

109. Miller v. State, 21 S.W.3d 327, 330 (Tex. App.—Tyler 1999, pet. ref’d) (trial judge had presided over prior conviction). This procedure could be problematic as there is no practical opportunity for cross-examination or other similar challenge to test the reliability of the evidence. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex.Crim.App. 2007)(judicial notice by appellate court of another proceeding deprives defendant of the right to contest the evidence).

If My Phone Is Just a Pair of Trousers, Why Did I Pay $500 for It?

“Is a cell phone really a pair of trousers?”1 This was Justice Brian Quinn’s question in State v Granville. It is also the question we each should be asking as police practices exploit old-fashioned search and seizure law to conduct warrantless searches and gain access to the most private and intimate details of our lives, far beyond what a traditional diary would have held.

Technology moves faster than the law. As our daily use of technology grows and becomes more complex and intertwined with our life, there seems to be an effort, or maybe it is a need, to apply yesterday’s logic and terminology to today’s technological gadgetry. This is especially true in the opinions coming out of some federal and state courts of appeals. It seems that courts are struggling with whether a phone is really a phone anymore, or is that just the word we use out of simplicity and tradition. Today, a phone is so much more than what it was just ten years ago, and phone makers and wireless companies spend billions a year in advertising telling us why.

Who under the age of 30 really even “talks” on the phone anymore? Almost no one uses the smart phone to talk as their primary way of communicating. People text; and boy do they text. Whether it is “sexting,” looking for a gram of weed, or what bar to go to, people text. They also maintain their Facebook account. They make posts about how much, where and with whom they drink, smoke, or have sex with. They “check in” to bars, restaurants, and clubs that have Facebook pages. They post pictures, tag them, and send them. They send and receive emails. They take pictures of checks that are then deposited into their bank accounts. They watch videos, stream live TV, control their home alarm, security system, and thermostat. They even can take an ECG approved by the FDA.2 They synchronize photos and personal information with their laptop at home or at work. Everything nowadays is in the clouds. What can be done on or with a smart phone is limitless. Anyone can create an app and upload it for anyone else in the world to use. Remember, there’s an app for that.

To the lay person it seems obvious that all of this would be protected and private, especially if you got arrested for a mis­demeanor DWI or Possession of Marihuana. Not so fast. How many clients sitting in the backseat of a patrol car do you hear screaming on video, “Why are you searching my phone?” In United States v. Finley, the Fifth Circuit upheld the search of a cell phone as a search incident to an arrest.3 The Court found that because the cell phone was found on Finley’s person it was subject to search, just as any container, open or closed, located within an arrestee’s reach.4 However, did Finley, and the courts that have followed or employed the same logic, miss the point or at least torture the meaning of “container”?5

The most obvious point is that a cell phone is not really a “container.” If a cell phone is a “container,” was a regular phone also a “container”? Or did a cell phone become a “container,” as discussed in New York v. Belton, by virtue of its technological uses to browse the internet and to maintain vast amounts of information?6 Calling a cell phone a “container” is simply trying to fit a technologically advanced square into an archaic round hole. Schlossberg v. Solesbee makes this point.7 A phone is not a “container” in the literal sense, as it is not capable of holding an object.8 Furthermore, once a container is opened its contents are in plain view, while a smart phone has to be “awake” or unlocked and then the contents must be rummaged through with swipes of the thumb. None of this is in plain view without manipulation. This is where decades of thought and case law lag behind the technological advances and societal expectations and changes.

Schlossberg recognized that technology and society have shifted to where people have a tremendous expectation of privacy in their smart phones.9 We use them in a way that we would have never conceived of even ten years ago. The law has not caught up to these changes.10 Instead, courts are applying antiquated ideas about what a “container” is to decide the constitutionality of searches of smart phones, which can hold or access practically every detail of your life.

State v. Granville has recognized these technological and societal shifts as well. Granville was arrested for creating a school disturbance, a Class C misdemeanor.11 Another officer learned of his arrest and, believing he might have information about a case he was investigating, took the phone from Granville’s property.12 After discovering a photo of a fellow student urinating, Granville was indicted for Improper Photography.13 Granville moved to suppress the photo, arguing it was obtained without a warrant and the trial court agreed. The State argued that the phone was seized pursuant to a lawful arrest, and because Granville was an arrestee, he did not have an expectation of privacy in the electronically stored information on his cell phone that was in his jail property. Justice Quinn outlined the remarkable leaps in smart phone technology and discussed opinions from around the country on the issues. In the end, the Amarillo Court of Appeals recognized that the expectation of privacy in Granville’s smart phone sets it apart from a pocket or other containers that might be found on an arrestee’s person. The opinion does, however, leave the door open to some warrantless searches of smart phones, such as exigent circumstances.

The Court of Criminal Appeals granted discretionary review on October 10, 2012. It will be interesting to see how the Court addresses these issues. This is an important issue as I have had countless clients tell me how the officer rummaged through their phone, scrolling through it at the jail or while they sat in the police car. Fortunately, rarely was anything ever discovered that made a difference in the outcome of a case, but it is only a matter of time. As we all know, it is often through the guilty that our collective rights are preserved.

Notes

1. State v. Granville, 373 S.W.3d 218 (Tex. App.—Amarillo 2012, pet. granted).

2. http://www.alivecor.com .

3. United States v. Finley, 477 F.3d 250, 259–60 (5th Cir. 2007).

4. Id., citing New York v. Belton, 453 U.S. 454, 460–61, 101 S.Ct. 2860, 69 L.Ed.2d. 768 (1981).

5. United States v. Hill, 2011 U.S. Dist. LEXIS 4104, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011); United States v. Curtis, 635 F.3d 704 (5th Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 191, 181 L. Ed. 2d 99 (2011); United States v. Butler, et al., No 11-20310 (5th Cir. May 18, 2012).

6. New York v. Belton, 453 U.S. 454, 460 (1981).

7. Schlossberg v. Solesbee, 844 F. Supp. 2d 1165 (D. Oregon 2012).

8. Id. at 1169, Belton at 461.

9. If the search of a phone incident to arrest is lawful, will owners be required to provide the password to the arresting officer or will a “data dump” back at the station be permissible?

10. Don’t take my word for it. Ask anyone under the age of 30 about how they view the information contained on their cell phone or ask any divorce lawyer how many issues they have with what was thought to be secret information be­ing pulled from cell phones in divorce cases.

11. Granville, 373 S.W.3d at 218.

12. Id.

13. Id.

…And the Truth Will Set You Free

Legislators are currently considering changes to our criminal discovery statutes. Better late than never, some would say. Unfortunately, it took the tragic case of Michael Morton to even bring about the Legislature’s look at the criminal discovery statutes.2 The question remains whether there will be changes, and if so, will they be more than window dressing. But before I continue with this article, I want to tell you about a case Leonard Martinez handled in Williamson County. This case happened several years ago while Michael Morton’s lawyers were fighting to get the discovery that would ultimately free him. In this context, the case is striking for its irony. What follows are the details of that case.

Leonard was retained to represent a former client at the last minute. The client was about to take a plea to aggravated robbery. He allegedly robbed a bank. Leonard knew him from having represented him on aggravated assault charges—charges that ultimately got dismissed. Leonard had developed a relationship with him and his family. In other words, it was a good old-fashioned lawyer who had a long-standing relationship with his client, unlike some of the high-volume, quick-turn-around legal services that have come to dominate law practice nowadays. In an article I co-authored with Leonard in the Voice for the Defense that came out a couple of months ago, we expressed our concerns for this new style of “salesmanship” as opposed to “lawyering.” And by the way, every judge and attorney who read that article has been very supportive, with one exception. One lawyer confronted Leonard, accusing us of being ignorant and slanderous. I wonder why this lawyer felt personally attacked.

Back to the case referred to above. You will see the irony, as the county where this case took place was Williamson County. The prosecutor was Williamson County District Attorney John Bradley and the judge was Ken Anderson. (As an aside, Leonard has known Ken Anderson for a long time and feels quite conflicted, angry, and sad over the whole Morton incident.) The style of the case is State v. David Villarreal. David was accused of going into a bank in Cedar Park, handing the teller a threatening note, and fleeing with cash. The robber was caught on surveillance video. The person caught on tape sure looked like David. The officer who viewed the tape immediately “recognized” the perpetrator as David. Why? Probably because he had dealt with David on previous occasions.3

The officer pulled David’s mug shot and assembled a photo array. He showed this photo array to each of the bank employees. They all quickly, and without hesitation, picked David. Why? Probably because of the similarities between David’s features and those of the person who, in fact, robbed the bank. Could there have been an improper presentation of the array by the officer? Anything is possible, what with the problems with eye-witness identification. But, as you will see, there was no need for Leonard to challenge that aspect of the investigation. Why? Because there was a surveillance video with a fairly good image and other evidence that turned out to be compelling as to David’s actual innocence. But the challenge to the array was still there to be made if Leonard found it necessary.

After all of the employees picked David out of the photo array, the officer had the note checked for prints. An iodide fumigation was used and partials were extracted. The officer had the prints compared to those of David, and they matched with a fair number of points. Never mind the many problems inherent in identifying someone from a partial print, with only a fair number of points matching.4

Next, the officer found some notes that David had written while incarcerated on other charges. The handwriting analyst said the handwriting on the note matched David’s handwriting on his previous written letters. Never mind that comparing hand writing is an art, not a science, and the comparison is a very subjective opinion, at best.

And if that was not enough, two of David’s cousins had been charged with a felony hindering, a third-degree felony. Why? Because allegedly after a warrant was put out for David, the cousins gave David and his wife a ride to a motel. These poor cousins were represented by the same lawyer who took them in to Bradley for a debriefing after they had been arrested and posted bond. In exchange for a plea of five years deferred adjudication, they would testify that David admitted to the robbery.

When Leonard walked into court to file his motion to substitute, he did not have all the details. Leonard only knew the charge—and that he was being asked to represent someone whom he had previously represented.

He met with David, who was in custody. David told Leonard that the lawyer he was replacing had gotten a plea agreement. The agreement was that in exchange for a guilty plea, Bradley would recommend 40 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition, Bradley would not charge his wife as an accomplice. David told Leonard he was ready to accept the offer.

Now remember, Leonard knew David. And in Leonard’s mind, this guy was no bank robber. He tended to be manic and even violent at times, but a robber he was not. So Leonard asked him to look him in the eye and tell him whether he robbed the bank or not. He said he did not but he wanted to take the deal to make sure his wife was not charged. Leonard persuaded him to hold off and not take the deal and allow him to substitute in, to which David agreed.

After the substitution order was signed, John Bradley took Leonard into the jury room, shoved two boxes—the type you store files in—at Leonard and said, “Let’s see you do your magic on this one.”

As Leonard was looking through the contents of the boxes, he told Bradley, “Well, I guess we will have to see.”

John started telling him what he had and what was in the box. And as he was being brought up to speed on the case, Leonard would recall that he was thinking: Holy crap! What in the hell have I gotten myself into?

Bradley not only allowed Leonard to look at everything in the two boxes. He told him, “I will get you anything you want or need.”

Leonard, in recounting the story, said: “When John told me this, I knew I was screwed. He must have such a strong case that he was going to violate his own closed-file policy. What hubris! So what was I going to do now?”

After he composed himself, he began to do what lawyers should do—take it one step and one issue at a time and by the numbers, as they say.

John was giving him everything he asked for. The first task was to get a copy of the surveillance video to examine it and, if necessary, have it enhanced by an expert. Second was getting a copy of the fingerprints lifted from the note and have them compared to David’s known prints. A request was made for a copy of the note David was supposed to have handed the teller.

Leonard also began to build his defense team by getting a good investigator. The surveillance tape was not clear enough to really make a definite identification, so the tape was taken to an expert in video enhancements.

The next thing was having the prints compared by an expert. One thing that was seen on David’s prints, and not on the partial from the note, was a line across the center of David’s print. It was determined that the line was caused by a scar from a cut David had on the finger that the print was supposedly matched to.

By this time, Bradley had assigned another prosecutor to handle the case. That prosecutor looked at the discrepancy in the prints but attributed the discrepancy to a copy error. So when David appeared in court, Leonard asked Judge Anderson if they could have David fingerprinted in court by the bailiff. He said okay and prints were taken. Lo and behold! The skin fold anomaly, as Leonard referred to it, appeared. Oops! That was no copying error. It was a scar! A scar that was not on the actual robber’s finger.

While all this was being done, the investigator was checking for anyone who had been arrested for bank robbery with a similar modus operandi (MO). The investigator was able to identify a couple of people who had been arrested for bank robbery with a very similar MO.

One of persons identified by the investigator was a man named Estrada. This Estrada just happened to be in the Williamson County Jail, charged with bank robbery. Bradley was asked if he would please provide Mr. Estrada’s mug shot with profile and his fingerprints. And to everyone’s amazement, Bradley gave them to the defense. Surprise! Mr. Estrada looked very much like the person on the surveillance tape. More so than David, upon close examination.

The enhancement on the tape was done and the image was much clearer. And as Leonard stared and stared at the image of the robber, it hit him like a baseball bat to the forehead. “Damn, this guy does not have a necklace tattoo around his neck and arms!”

The enhanced tape showed the bank robber wearing what looks like a muscle shirt; and it was very clear this man had no tattoos. None. Nothing like those that David had. Because Leonard had a lawyer-client relationship with David, he knew him and knew he had those tattoos long before this robbery occurred. Leonard’s gaze was just fixed on the image, saying over and over again, “Damn, damn, what the hell is going on?” Why would David have told his cousins he had done this when the “overwhelming evidence” showed he had nothing to do with the crime. Bradley’s case was starting to unravel.

And even though Leonard knew David had those tattoos before the robbery, he pulled old booking photos so there could be no argument as to when those tattoos were on David.

While the defense was working on the case, a pastoral counselor called Leonard to tell him he was visiting with David and wanted to offer his support. Leonard—not missing an opportunity for information—asked this counselor whether he was also seeing another inmate by the name of Estrada. The counselor said he was one of his clients.

And then Leonard did something that some might say was on the ethical edge, although that is debatable. To me, it was performing the function in the fullest sense of the Sixth Amendment. Leonard told the counselor that there was reason to believe David may have to be punished for something Mr. Estrada had done. It was left at that, with nothing else said.

A couple of weeks later, Leonard received a call from a very excited counselor. “Mr. Martinez, you will not believe . . .”

After Leonard asked him to calm down, slow down, and to tell him what he was talking about, the counselor told him. For a moment there was the fear that David had confessed to the counselor. That would have been a shot to the heart. No, he told Leonard that Mr. Estrada had not only confessed but had confessed in writing and asked the counselor to have the confession letter given to David’s lawyer. As Leonard recounts, “It took a couple of minutes to gather myself up from the floor. But then I thought, oh hell, his lawyer is going to be pissed!”

But the truth was the truth, and justice would not be served with David, who now was clearly innocent, being convicted of something Mr. Estrada had done.

Mr. Estrada’s handwritten confession was turned over to the prosecutor. No very long after the confession was turned over, the prosecutor handling the case said, “Leonard, I have some Brady material I have to disclose.” And he added, “Leonard it seems you have somehow f—d up my case.”

When David and Leonard appeared before Judge Anderson at jury docket call the State of Texas filed a motion to dismiss.

So what about Mr. Estrada? Well, the lawyer was indeed a bit miffed, but as a result of his expressed displeasure, his client got a better deal for pleading to now two cases concurrent rather than to the offer he had previously for one. And what about the two cousins who a lawyer pled guilty and had gotten to agree to testify against an innocent man? I do not know what ultimately happened, although I hope Bradley would move to dismiss.

The cousins had come to Leonard’s office and asked him if he would represent them. They felt they were pressured by their lawyer to plead, even though they, too, were innocent. They said they did not know that there had been a warrant issued for David’s arrest, and that David never admitted to robbing the bank. It is disgusting what they were “counseled” into doing. Leonard told them that they should consider seeing another lawyer about filing a writ.

Full and complete disclosure and cooperation from a prosecutor that was not known for much, if any, disclosure and cooperation resulted in a complete exoneration before the case went to trial. David’s case illustrates why full and complete discovery is so extremely important.

Of course, we lawyers must carry on our own investigation and must do something with the information acquired. So as the Legislature continues to debate the merits or demerits of full, open, and complete discovery, we must tell them we need real change. We must do so in a loud voice, as an organization and as individual lawyers. It is for the sake of truth and justice. It is for the wrongfully convicted, like Michael Morton. And we need to encourage the legislators to consider the discovery practices of other states, particularly Florida and Missouri, where witnesses and complaining witnesses can be deposed. The experience in those states has been very positive, resulting in more cases being resolved by agreement, whether through pleas or dismissals.

Let us all continue to push for change. We as lawyers have a special calling not only to defend the accused but also to defend our constitutions and improve the administration of justice.

As the title of this article says, the truth will set you free. It certainly did for Michael Morton, just as it did for David.

Notes

1. John 8:32

2. Isn’t it ironic that a civil defendant has far more discovery rights than someone whose liberty, or life, is at stake?

3. This is an example of confirmatory bias—you “find” what you expect to find or what you are looking for. To the police officer, David was a known criminal.

4. Never mind the case of Brandon Mayfield, the Portland, Oregon, lawyer who was incorrectly identified by the FBI as being involved in the Madrid train station bombings. The prints that the FBI used to incorrectly identify Mr. Mayfield had more points than the partial prints that were used to “finger” David.

March 2013 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
19 | Proposed Bylaws Changes – Submitted by Adam Kobs & Coby Waddill
24 | Enhancement of Punishment Under Texas Law, Part I – By Ken Mahaffey
32 | If My Phone Is Just a Pair of Trousers, Why Did I Pay $500 for It? – By Jason D. Cassel & Andralee Cain Lloyd
34 | …And the Truth Will Set You Free – By Leonard Martinez & L. T. “Butch” Bradt
44 | Ex Parte Sealed Defendant’s Motion for Downward Departure Based on Ill Health Under U.S.S.G. §5H1.4 – By John Stickels

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

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

President’s Message: Say It Loud – By Lydia Clay-Jackson

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Say It Loud: “I am a Criminal Defense Lawyer and I am proud.” This month we celebrate the 50th anniversary of the United States Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963). The Court found that what we do is a fundamental right of the Accused, a right that is essential to a fair trial. The Justices found, “Lawyers in criminal courts are necessities, not luxuries” (id. at 344).

In the years since Gideon was decided, states have developed ingenious ways of carrying out the law. Texas has statewide public defender systems, court-appointed counsels, and hybrids of the two. Regardless of the state’s system of administration of indigent defense, money—not the representation of the Accused—is always the foremost stated concern.

About fifteen years back, the SBOT committee for Services to the Poor in Criminal Matters, under the leadership of Allen Butcher, commissioned a study through the University of Texas at Arlington to collect empirical data regarding legal services to the poor. Michael Moore, PhD, supervised the study and data collection. Dr. Moore’s report back to the committee recognized that fees paid to court-appointed counsel should take into account the lawyer’s overhead. Further, that fees should take into account the duty and time of lawyers to investigate the case before advising their clients, so as to provide effective assistance of counsel.

State Senator Ellis acknowledged the importance of Dr. Moore’s study, and courageously recognized some years back that Texas should honestly give more than just lip service to the principals enumerated in Gideon. Through the senator’s tireless efforts, we have the Indigent Defense Act. James Bethke and his staff of the Task Force on Indigent Defense more than ably administer this Act. The focus of the Act and the Task Force is effective and due process–oriented legal service to the indigent Accused. This focus is not only morally correct but also mandated by our Texas and United States Constitutions.

All Texas counties, through their county commissioners and judges, hold the responsibility of implementing the Indigent Defense Act for legal services. These “public servants” elected to serve the residents of their respective counties must realistically balance the needs, of the residents, with the finances available. We as Criminal Defense lawyers know and appreciate this balancing act. Nonetheless, the practice of having criminal defense lawyers financially subsidize the counties is just wrong.

Justice Hugo Black, at the conclusion of the argument on Gideon, publically acknowledged the country’s indebtedness to those lawyers who represent the indigent Accused. The Justice reflected on his experience as a county prosecutor, revealing that states spend vast amounts of money on hiring prosecutors and police. “Black wanted to make the courtroom battle a fair fight” (May It Please the Court, Irons and Guitton, The New Press 1993).

Counties who have “flat fees,” “$150 pleas,” “$30 per hour fee for experts” (who, by the way, generally have lowered their usual fee), and the like are thumbing their nose at Gideon and the efforts of the United States Supreme Court to ensure a fair fight. When sued in their official capacities, county commissioners and judges, I am more than positive, retain their lawyers, at county expense, and those lawyers are not subsidizing the counties. Equal Protection under the law, guaranteeing that all men are created equal, is not just a phrase; it is a cornerstone of our legal system. Flat fees and the other like perversions in no way guarantee a fair courtroom battle; instead, they give the accused a paper shield to ward away the State’s AK-47 ammunition.

What flat fees and the other like perversions do not take into account is that Criminal Defense lawyers represent human beings. These clients are as different from one another as those people who have not been accused of a crime. Take for example a young man who at 17 acts as flag man for a drag race (in two different counties), and he is arrested both times. He goes to “jail docket,” both times, where the judge, in both cases, gives him his three options: 1) retain your own lawyer; 2) represent yourself, but understand the DA is not your lawyer; or 3) ask for a court-appointed lawyer. He is 17, he does not want his grandmother to know he spent a night in jail, and he just wants and needs to get out. His grandmother brought him up to tell the truth, so he pleads guilty, both times, for time served.

When he turns 19, he moves to a different county, where he becomes the sole, stable bread earner for his family of two younger siblings and their elderly grandmother. His drag-racing buddies feel sorry for him and agree to pay him to act as flag man again. He does, he gets busted, and imagine his dismay when he finds out he is being charged with a state jail felony! Thanks to Gideon he gets a court-appointed lawyer who takes his TIME and diligently performs his duty. The Criminal Defense lawyer takes the time to get the records from the other two counties and negotiates with the prosecutor for a most favorable disposition that did not result in probation fees or a conviction. The Criminal Defense lawyer also took the time to help his client get his license reinstated from the prior misdemeanor convictions. The client was not even aware of his license suspension, as DPS does not use certified mail. The resolution of this case took more than 26 hours, and the lawyer would only receive a flat fee of $400 or even $150! You do the math. It just is not right. Nevertheless, who cares—the lawyer is court-appointed and the client is poor. WE CARE, the client’s grandmother cares, and, most assuredly, TCDLA cares.

In representing the poor, Criminal Defense lawyers, both private and public defenders, attend CLE at their own expense and without per diem. They frequently make a conscious decision to guarantee resources needed to defend their client, using their own money. Counties seemingly have adopted this practice as a matter of course and fact. My goodness, organizations who adopt a “mile” of Texas highway receive acknowledgment by signage on the highway! Not seeing beer cans on the shoulders of Texas highways seemingly is more important that what happens in the courtrooms of Texas.

Most county commissioners are not lawyers, but the judges who make the decisions regarding payment for court-appointed fees are. The foundation under those black robes is a license to practice law, just like the license held by the lawyers doing court-appointed work. Every one who holds a law license is a full brother or sister to all those who hold a law license. We are all equal siblings to the practice of law. None of us should use the power given us to demean members of our family, just because we can. (It makes us dysfunctional.) If we truly desire to have the public respect our judicial system, we must show respect to all those who work within the system. It bears repeating: “Lawyers in criminal courts are necessities, not luxuries.”

Criminal Defense lawyers, whether we accept court appointments, work for public defender organizations, or take only retain cases, deserve support and gratitude in the same regard as those men and women who serve in the Armed Forces. We all make knowing sacrifices to defend what is right and true about our American sense of justice. Some fight with bullets, others with words, but all fight valiantly for all residents of this country. Criminal Defense lawyers fight for the protection of all residents of this country, not only by the words of the law, but by its spirit as well. Criminal Defense Lawyers who accept court appointments and those who choose to work with public defender offices do so knowing the fee and salary they are making in no way compare to a retain fee. And they should not, as the clients represented are indigent—POOR. The representation of the poor is very important if we are to fulfill our “oath” as lawyers. Having Criminal Defense lawyers subsidize the system in which they work is just as wrong has having our fellow Americans in uniform purchase the equipment they need.

“A lawyer’s time and advice, are his stock and trade.”

—President Abraham Lincoln

Good Verdicts to you all,
The Hat Lady

Executive Director’s Perspective: TCDLA in Motion – By Joseph A. Martinez

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The TCDLA Board of Directors met in Dallas on Saturday, March 8. The following motions were passed at the TCDLA Board Meeting.

MOTION: To approve minutes from the December 8, 2012, TCDLA Board Meeting in Houston. Motion made by Michael McDougal, seconded by Sarah Roland—motion carries.

MOTION: Not allow counter cash withdrawals with Wells Fargo checking account. Motion made by John Convery, seconded by Bobby Mims—motion carries.

MOTION: Pass Resolution presented by TCDLA Legislative Committee. Motion made by Mark Daniel, seconded by Bill Harris—motion carries.

MOTION: Add Brady Reform and revise wording regarding Texas Defender Service (TDS) to TCDLA Resolution just passed by board. Motion made by Mark Daniel, seconded by Lance Evans—motion carries.

MOTION: TCDLA Executive Board to look at and approve revised resolution. Motion made by Mark Daniel, seconded by Carol Powell—motion carries.

MOTION: Nominated Jani Maselli for the Charles Butts Pro Bono Award. Motion made by Tony Vitz, seconded by Emmett Harris—motion carries.

MOTION: Adjourn meeting. Motion to adjourn at 12:05 pm. Motion made by Bobby Mims, seconded by Coby Waddill—motion carries.

The following information was reported at the board meeting:

Special thanks to Carlos Garcia (Austin) and Rick Wardroup, Capital Assistance Lawyer (Lubbock), our course directors for the Capital Case Litigators Initiative (CCLI) held in San Antonio in February. Thanks to their efforts and our speakers we had 41 attendees. CCLI was a Department of Justice grant submitted by the Texas Court of Criminal Appeals. Special thanks and acknowledgment to Judge Barbara Hervey for her advocacy for TCDLA in this most important capital training.

Special thanks to Rick Wardroup (Lubbock), course director for the Capital Trial Seminar, and Melissa Shearer, course director for the Mental Health seminar held in San Antonio. Thanks to their efforts and our speakers we had 122 attendees.

Specials thanks to the Hidalgo County Bar Association and Sharon Almaguer, president, who allowed Criminal Defense Lawyers Project (CDLP) to co-sponsor the Constitutional Warriors: Hidalgo County Bar Association Criminal Law Conference 2013, held in McAllen in February. Thanks to Reynaldo Merino (McAllen), TCDLA board member, for bringing this opportunity to TCDLA. We had 47 attendees.

Special thanks to Rick Wardroup (Lubbock) and Lynn Richardson (Dallas), course directors for the Dallas Indigent Defense seminar. Special thanks to Mike McCollum, TCDLA board member (Dallas), and Professor Chris Jenks (Dallas), course directors for the Veterans’ Justice: Serving Those Who Served Us seminar held in Dallas in February. And special thanks to Stephanie Gonzales, attorney at SMU, for all her coordination and efforts behind the scenes. Thanks to all their efforts and our speakers we had a total of 187 attendees.

Special thanks to Troy McKinney (Houston), course director for the Public Defender DWI seminar held in Dallas in February. Thanks to him and our speakers we had 54 attendees. This was a co-sponsored seminar with the National College for DUI Defense. Troy McKinney is also the current Dean of the College.

Special thanks to Anthony Haughton (Houston) and Alex Bunin (Houston), course directors for the 2nd Annual Honorable Craig Washington and Senator Rodney Ellis Seminar held at the Thurgood Marshall School of Law in Houston in February. Thanks to their efforts and our speakers we had 157 attendees. TCDLA wants to give special recognition to Dean Dannye Holley of the Thurgood Marshall School of Law for allowing TCDLA/CDLP to co-sponsor this event. Specials thanks to Ms. Prudence Smith who helped put on the event and was instrumental in making it a success.

Special thanks to Troy McKinney (Houston), course director for the Public Defender DWI seminar held in El Paso in February, with help from El Paso’s Janet Burnett. Thanks to their efforts and our speakers we had 75 attendees.

Special thanks to Randy Wilson (Abilene) and Tyrone Moncriffe (Houston), course directors for the Cross-Examination seminar held in Dallas. Thanks to their efforts and our speakers we had 94 attendees.

The 83rd Texas Legislative Session has been an extremely busy session for TCDLA. Bills have been filed and our TCDLA Legislative Team has been actively following their progress through the Senate and House Committees. Please follow our legislative team on the TCDLA listserve. Please call the Home Office (512-478-2514) if you need to know how to sign up for the TCDLA Legislative listserve.

The 26th Annual Rusty Duncan Advanced Criminal Law Course is rapidly approaching. Please pre-register at our TCDLA website and make your hotel reservations at the Hyatt Regency host hotel as early as possible.

Please help us get the word out on the 17th Annual TCDLA Golf Tournament to be held on Wednesday, June 13, at the beautiful course in Silverhorn Golf Course. Prizes are awarded for the top two teams. Registration fee includes lunch at 11:30 am. Shotgun start at 12:00 pm.

The TCDLA Board of Directors invites you to attend the TCDLA Annual Members Meeting on Saturday, June 13, 2013, immediately following the adjournment of the 26th Annual Rusty Duncan Advanced Criminal Law Course. This should be approximately at 10:30 am in Ballroom B of the Henry B. Gonzalez Convention Center in San Antonio.

Good verdicts to all.

Federal Corner: The Supremes Limit the Summers Rule – By F. R. Buck Files Jr.

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On February 19, the Supreme Court held that the Summers rule, which allows officers executing a search warrant to detain the occupants of the premises, is spatially constrained and limited to the immediate vicinity of the premises to be searched. Bailey v. United States __S.Ct.__, 2013 WL 598438 (2013). KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a concurring opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.

[The Facts]

        Chunon L. Bailey and Bryan Middleton were observed by law enforcement officers as they were leaving an apartment later determined to be Bailey’s. Other officers had obtained a search warrant for the apartment and were waiting to execute it. Bailey and Middleton were not aware of this. They left in Bailey’s car and were stopped by the officers after they had driven for about five minutes. The officers did a pat down search of both men. They found no weapons; however, they discovered a ring of keys in Bailey’s pocket. The officers advised Bailey and Middleton that they were going to search the apartment. Bailey stated, “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.” The officers then took Bailey and Middleton back to the apartment. By the time they returned, the search team had discovered—in plain view—drugs and a gun inside the apartment. Bailey and Middleton were each placed under arrest and Bailey’s keys were seized incident to the arrest. One of these keys opened the door to the apartment’s basement.

[In the Courts Below]

        Bailey was charged with drug and firearm offenses. His lawyer filed a motion to suppress the apartment key and the statements that Bailey had made when he was first stopped by the officers. United States District Judge Joseph Frank Bianco of the Eastern District of New York denied the motion to suppress, finding that Bailey’s detention was permissible as a detention incident to the execution of a search warrant; and, in the alternative, that Bailey’s detention was lawful as an investigatory detention supported by reasonable suspicion under Terry v. Ohio.

        The United States Court of Appeals for the Second Circuit ruled that Bailey’s detention was proper and affirmed denial of the suppression motion. The Court did not address the district court’s alternative holding that the stop was permitted under Terry.

Justice Kennedy’s opinion contains, in part, the following:

[The Fourth Amendment]

This Court has stated “the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause” to believe that the individual has committed a crime. Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

[The Summers Rule]

In Summers, the Court defined an important category of cases in which detention is allowed without probable cause to arrest for a crime. It permitted officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.” 452 U.S., at 705, 101 S.Ct. 2587. The rule in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

***

The rule announced in Summers allows detention incident to the execution of a search warrant “because the char­ac­ter of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Muehler, supra, at 98, 125 S.Ct. 1465.

[Contrasting the Facts in Summers and the Facts in Bailey]

In Summers and later cases the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant. In Summers, the defendant was detained on a walk leading down from the front steps of the house.

***

Here, however, petitioner left the apartment before the search began; and the police officers waited to detain him until he was almost a mile away. The issue is whether the reasoning in Summers can justify detentions beyond the immediate vicinity of the premises being searched. An exception to the Fourth Amendment rule prohibiting detention absent probable cause must not diverge from its purpose and rationale. It is necessary, then, to discuss the reasons for the rule explained in Summers to determine if its rationale extends to a detention like the one here.

[The Summers Law Enforcement Interests]

In Summers, the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitating the completion of the search, and preventing flight. 452 U.S., at 702–703, 101 S.Ct. 2587.

        The first interest identified in Summers was “the interest in minimizing the risk of harm to the officers.” Id., at 702, 101 S.Ct. 2587. There the Court held that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence,” and
“[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id., at 702–703, 101 S.Ct. 2587.

***

The second law enforcement interest relied on in Summers was that “the orderly completion of the search may be facilitated if the occupants of the premises are present.” 452 U.S., at 703, 101 S.Ct. 2587. This interest in efficiency derives from distinct, but related, concerns.

        If occupants are permitted to wander around the premises, there is the potential for interference with the execution of the search warrant. They can hide or destroy evidence, seek to distract the officers, or simply get in the way. Those risks are not presented by an occupant who departs beforehand. So, in this case, after Bailey drove away from the Lake Drive apartment, he was not a threat to the proper execution of the search. Had he returned, officers would have been free to detain him at that point. A general interest in avoiding obstruction of a search, however, cannot justify detention beyond the vicinity of the premises to be searched.

***

The third law enforcement interest addressed in Summers was the “the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” 452 U.S., at 702, 101 S.Ct. 2587. The proper interpretation of this language, in the context of Summers and in the broader context of the reasonableness standard that must govern and inform the detention incident to a search, is that the police can prohibit an occupant from leaving the scene of the search.

[The Limitation on Summers]

In sum, of the three law enforcement interests identified to justify the detention in Summers, none applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Any of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. This would give officers too much discretion. The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.

[The Summers Rule Is a Limited Intrusion on Personal Liberty]

In Summers, the Court recognized the authority to detain occupants incident to the execution of a search warrant not only in light of the law enforcement interests at stake but also because the intrusion on personal liberty was limited. The Court held detention of a current occupant “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” 452 U.S., at 703, 101 S.Ct. 2587. Because the detention occurs in the individual’s own home, “it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.” Id., at 702, 101 S.Ct. 2587.

[For Bailey, the Intrusion Was Not a Limited Intrusion]

Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, de­tention beyond the immediate vicinity can involve an initial detention away from the scene and a second detention at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here was more intrusive than a usual detention at the search scene. Bailey’s car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene.

[The Requirement of a Spatial Constraint]

Summers recognized that a rule permitting the detention of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search. Because this exception grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed.

        A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. The police action permitted here—the search of a residence—has a spatial dimension, and so a spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.

[Bailey’s Detention Was Beyond “The Immediate Vicinity”]

Here, petitioner was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question; and so this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.

[Limiting Summers to “The Immediate Vicinity”]

Confining an officer’s authority to detain under Summers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule. The rule adopted by the Court of Appeals here, allowing detentions of a departed occupant “as soon as reasonably practicable,” departs from the spatial limit that is necessary to confine the rule in light of the substantial intrusions on the liberty of those detained. Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause.

[Giving the Court of Appeals a Second Chance]

Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful under Terry. This opinion expresses no view on that issue. It will be open, on remand, for the Court of Appeals to address the matter and to determine whether, assuming the Terry stop was valid, it yielded information that justified the detention the officers then imposed. [Emphasis added.]

My Thoughts

  • Justice Kennedy’s opinion is beautifully written. It’s worth your time to read it in its entirety and not rely on my synopsis.
  • Without regard to what the Court of Appeals does on re­mand, the Summers Rule has now been modified and limited. Will this impact a significant number of Fourth Amendment cases? Probably not, but it will be an issue in some cases—and this can only benefit the defense.

Ethics and the Law: Loose Lips Sink Ships

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Many times a lawyer’s business gets put on the streets when he posts a message on a listserv. Although information put on a listserv is supposed to be confidential, it gets leaked to the wrong person. The TCDLA Ethics Committee created the hotline specifically for criminal defense lawyers with criminal law issues. The messages we get are confidential to the caller. We may use the question only as an example in an article, but names and identifying information shall remain confidential. Lawyers continue to talk about their cases in the elevators at courthouses across the state. Several times prosecutors have heard the conversation and reported what they heard. Recently in Houston after a bad day in court, a defendant was mouthing off and said, “I think I will just go to Mexico.” A prosecutor ran and told the judge. Guess what? The defendant was put in custody and his bond was revoked. In the modern world we live in today, people are emailing, tweeting/twittering, “googling,” instant messaging, recording and posting text videos, and essentially living on Facebook. As soon as you take a case, your client should be advised, and it should be ordered mandatory, to stop all these things. Remember what Racehorse Haynes says: “E” in email stands for evidence. Social media sites are a gold mine for evidence against your client and the complainant. Use it to your advantage if you can obtain the information ethically.

They call it attorney-client privilege for a reason. Sitting around in a bar talking about your client’s case is a too frequent event and should not be done. If you need help on a case, get a mentor or call a lawyer friend. Remind them it is confidential. When you get hired or appointed on a case, ask your client to sign a waiver of the attorney-client privilege if he wants his mother, dad, wife, girlfriend, boyfriend, or anyone else to have information about the case. Warn the clients not to discuss their case with cellmates.

Recently a cellmate confessed to a capital murder to a man I was representing. Since my client was facing a long trip to the federal prison, the information he got from his buddy was passed on to a federal prosecutor, and my client’s long trip turned into a short trip. There is always a danger of retribution, so make sure you tell your client he or his family could be in danger. Yes, it does happen in the movies, but also in the real world. Wives, girlfriends, and even mothers have ended up in the witness protection program for giving information to the government.

There has been much discussion about the pending legislation of reciprocal discovery. TCDLA is obviously against that. For the present, we need to remain vigilant as lawyers during plea negotiations to invoke the “keep your mouth shut” rule. Finding a nugget of helpful information in your client’s case makes you want to shout it from the rooftop. Resist the urge. When you show your hand in good faith to a prosecutor in the course of plea negotiations, nine times out of ten you have just done your client a disservice. The prosecutor then talks to the witnesses and “magically” their story changes or something is added to help them make their case. I have overheard prosecutors talk to an officer after I, in good faith, tried to point out that the officer’s report did not adequately state probable cause for a stop. The prosecutor told the officer what he needed to say to make sure there was probable cause, and then told me, “Oh yeah, the officer forgot to put in report that your client ran a stop sign.”

Knowing when to keep your mouth shut is one of the hardest lessons to learn. Down the road, reciprocal discovery (if it passes) will very much change how we work. Use the tools that we have now while we have them. With the endless resources of the prosecution, our current appellate climate, and pending legislation twisting in the wind, there is no room for error when dealing with the prosecution. We have many cases, but those clients have but one life. Keep your mouth shut.

People used to get drunk and make phone calls, but now it is put on the internet world for all to see. Please call the ethics hotline rather than letting the world know about your ethics question. You are running the risk of the information being passed to the wrong person. When you hear someone say, “It is only minor surgery,” it’s only minor if it is happening to someone else. All our cases are big because they are big to the people we are representing. Look back in your history books or talk to someone who has been in war and they will tell you about the posters in store windows during World War II. There was always a danger of sabotage because of things said by people in the military or people working in the military field. An innocent conversation could be disastrous. The poster said, “Loose Lips Sink Ships.” Call the hotline at 512-646-2734.