Monthly archive

February 2015

January/February 2015 SDR – Voice for the Defense Vol. 44, No. 1

Voice for the Defense Volume 44, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Police generally may not without a warrant search information on a cell phone seized from an individual who has been arrested. Riley v. California, 134 S. Ct. 2473 (2014).

        In both Ds’ cases, the contents of their cell phones were searched after they were arrested, and evidence obtained from the phones was used to charge them with additional offenses. The trial courts denied their motions to suppress the evidence, and both Ds were convicted. The California Court of Appeal affirmed; the First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. The U.S. Supreme Court affirmed the judgment suppressing evidence from a phone, and reversed and remanded the judgment affirming the conviction.

        The Supreme Court unanimously held that under the Fourth Amendment, police officers generally could not without a warrant search digital information on cell phones seized from defendants as incident to the defendants’ arrests. While the officers could examine the phones’ physical aspects to ensure that the phones would not be used as weapons, digital data stored on the phones could not itself be used as a weapon to harm the arresting officers or to effectuate the defendants’ escape. Further, the potential for destruction of evidence by remote wiping or data encryption was not shown to be prevalent and could be countered by disabling the phones. Moreover, the immense storage capacity of modern cell phones implicated privacy concerns with regard to the extent of information that could be accessed on the phones.

D’s claim that dismissing a juror in her murder trial who disagreed with the other jurors violated the Sixth Amendment was not barred from further review. Williams v. Johnson, 134 S. Ct. 2659 (2014).

        The entire Court opinion stated: “On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Motion of petitioner leave for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Ninth Circuit for consideration of petitioner’s Sixth Amendment claim under the standard set forth in 28 U. S. C. § 2254(d).”

Habeas relief was improper because Supreme Court case law did not clearly establish that a defendant apprised of the possibility of conviction on an aiding-and-abetting theory could be deprived of adequate notice by a prosecutorial decision to focus on another theory of liability at trial. Lopez v. Smith, 135 S. Ct. 1 (2014).

        The Court unanimously reversed and remanded the Ninth Circuit’s grant of federal habeas relief, saying the Ninth Circuit failed to apply the deferential standard of review required by 28 U.S.C. § 2254(d) when it granted relief from a state murder conviction on the ground that the prosecutor’s request for an aiding-and-abetting instruction at the jury-instruction conference violated a putative constitutional right to prior notice of the government’s theory of prosecution—a right that has been recognized in the court of appeals’ own precedents, but not established by a Supreme Court holding. The older precedent cited by the Ninth Circuit stood for nothing more than the general proposition that a defendant must have adequate notice of the charges against him, and that proposition was too abstract to address the specific question presented. “When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U. S. C. § 2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established.’”

Fifth Circuit

Texas state courts did not act unreasonably in rejecting first-degree-murder D’s claim of suppression of favorable evidence under Brady v. Maryland, 373 U.S. 82 (1963), of a jailhouse confession to the murder by D’s accomplice. Pitonyak v. Stephens, 732 F.3d 525 (5th Cir. 2013).

        First, it was not unreasonable for the state courts to conclude that the evidence—contained in a jail counselor’s notation in accomplice’s jail file—was not suppressed within the meaning of Brady, as Supreme Court precedent was uncertain as to whether a mental health professional is encompassed in the Brady fold. Second, it was not unreasonable for the state courts to conclude that the evidence was not material, as there was substantial evidence that an alternate-perpetrator defense would not have been pursued or, if pursued, that it would have worked. Accordingly, the Fifth Circuit affirmed the denial of federal habeas relief.

One D’s conviction for Medicare-fraud conspiracy in one case was not double-jeopardy-barred by his conviction for Medicare-fraud conspiracy in another case; under the five-factor test applicable to such inquiries, there were two separate conspiracies, hence no double-jeopardy violation. United States v. Jones, 733 F.3d 574 (5th Cir. 2013).

        Nor was there a multiplicity problem. Although D was indicted on two counts of conspiracy, one was conspiracy under 18 U.S.C. § 371, one was conspiracy under 18 U.S.C. § 1349; because each of these had at least one element that the other did not, there was no multiplicity problem.

        (2) The district court did not abuse its discretion in denying another D’s motion to substitute counsel, filed only 13 days before trial was to begin. Although D had a constitutional interest in the counsel of her choice, that had to be balanced against the needs of fairness and against the demands of the district court’s calendar. The Fifth Circuit agreed with the district court that the balance of factors weighed against granting the substitution.

In felon-in-possession trial, district court abused its dis­cretion in granting a new trial based on allegedly improper prosecutorial remarks, given the (1) substantially appropriate nature of the prosecutor’s comments, (2) cu­ra­tive measures taken by the district court, (3) lack of any real prejudice from the comments, and (4) strong government case. United States v. Poole, 735 F.3d 269 (5th Cir. 2013).

        The Fifth Circuit reversed the grant of a new trial and remanded with instruction to reinstate the jury verdict and proceed to sentencing.

In trial on drug and gun charges, where government used five of its seven peremptory challenges on African-Americans and explained these strikes by relying in whole or in part on the veniremembers’ demeanor, dis­trict court did not err in accepting the explanations with­out making specific record findings about the government’s demeanor claims. United States v. Thompson, 735 F.3d 291 (5th Cir. 2013).

        Agreeing with the Eleventh Circuit and disagreeing with the Seventh Circuit, the Fifth Circuit held that Snyder v. Louisiana, 552 U.S. 472 (2008), does not require a trial court to make record findings of a veniremember’s demeanor when that is the putative basis of a contested strike.

Where Texas death-sentenced D claimed ineffective assistance based on counsel’s failure to present mitigating evidence regarding his troubled background and mental health history, the state habeas court did not unreasonably apply federal law (namely, the deficiency prong of Strickland v. Washington, 466 U.S. 668 (1984)) by concluding that counsel performed an adequate mitigation investigation. Charles v. Stephens, 736 F.3d 380 (5th Cir. 2013).

        Additionally, although it was a closer question, the state habeas court did not unreasonably apply Strickland’s prejudice prong by concluding that any deficiencies did not prejudice D. Nor did the state habeas court unreasonably determine the facts in light of the evidence to justify relief under 28 U.S.C. § 2254(d)(2). The Fifth Circuit affirmed the district court’s denial of federal habeas relief.

In healthcare-fraud prosecution, D’s conviction and sentence for conspiracy under 18 U.S.C. § 371 and conviction and sentence for conspiracy under 18 U.S.C. § 1349 were not multiplicitous. United States v. Njoku, 737 F.3d 55 (5th Cir. 2013).

        Each statute contained an element the other did not, and the jury instructions did not effectively render one offense a lesser-included offense of the other. Nor was D’s § 1349 conspiracy conviction double-jeopardy-barred by her acquittal, in an earlier case, on another § 1349 conspiracy charge; under the five-factor test used by the Fifth Circuit, there were two sep­a­rate agreements and two separate conspiracies. Finally, D’s acquittal on the § 1349 conspiracy charge in the earlier case did not have a collateral-estoppel effect on her charges in the instant case, as the previous jury did not necessarily decide that D did not know her paid referrals were illegal.

        (2) District court did not abuse its discretion in excluding the testimony of a person who testified at a previous trial but then invoked his privilege against self-incrimination in the instant case. Nor did the exclusion of this testimony violate D’s constitutional right to present a complete defense.

At trial for illegal reentry after deportation, where D’s defense was to create reasonable doubt about his alienage on the ground that D might have acquired U.S. cit­i­zen­ship derivatively through his mother, it violated D’s Confrontation Clause rights to admit against him an af­fi­davit executed by his now-deceased grandmother in connection with a 1968 document-fraud investigation. United States v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013).

        It was the government’s burden to show that this document was not “testimonial” for purposes of the Confrontation Clause, and the government failed to meet that burden. Even though the document was not originally generated to accuse D of wrongdoing, “testimonial” documents are not limited to those whose primary purpose is to accuse a targeted individual of engaging in criminal conduct. Because the error in admitting the affidavit was not harmless beyond a reasonable doubt, the Fifth Circuit vacated D’s conviction and remanded for a new trial.

At trial for illegal reentry after deportation, district court did not abuse its discretion in giving modified Allen charge to jury that reported itself deadlocked. United States v. Andaverde-Tiñoco, 741 F.3d 509 (5th Cir. 2013).

        On plain-error review, the modified Allen charge was not so linguistically deficient as to warrant reversal, even though it lacked language about the unique posture of the case (i.e., that all the basic elements of the charged offense were stipulated to and only D’s affirmative defense of duress was at issue). Nor were the circumstances surrounding giving the Allen charge so coercive as to warrant reversal.

        (2) At trial for illegal reentry after deportation, where D’s defense was duress (i.e., that he had been forced to swim across the Rio Grande River at gunpoint by robbers), it was plain error (under Doyle v. Ohio, 426 U.S. 610 (1976), and its progeny) to permit the government to impeach that defense with D’s post-Miranda silence. Moreover, the Doyle error affected D’s substantial rights; however, under the circumstances, the error did not seriously affect the fairness, integrity, and public reputation of judicial proceedings. The Fifth Circuit declined to exercise its discretion to correct the error on plain-error review.

        (3) The district court abused its discretion by refusing to admit, at sentencing, an affidavit supporting D’s request for a downward departure for coercion or duress. The district court’s stated basis was that the affidavit was hearsay, but evidence is not inadmissible at sentencing simply on the basis that it is hearsay. Nevertheless, any error in failing to admit the affidavit was harmless.

Court of Criminal Appeals

The Legislature intended to disallow dual convictions under Tex. Penal Code § 21.02 for continuous sexual abuse of a child and for a lesser-included offense, including criminal attempt to commit a predicate offense. Price v. State, 434 S.W.3d 601 (Tex.Crim.App. 2014).

        COA examined the statute’s language and, determining that the Legislature could not have intended to permit both convictions because that would violate a defendant’s rights against double jeopardy, held that the statute defining the offense of continuous sexual abuse of a young child does not permit a defendant to be convicted both of that offense and of a criminal attempt to commit a predicate offense under that statute. COA vacated the conviction for attempted aggravated sexual assault against D. CCA affirmed COA.

        “We agree with the court of appeals’ judgment vacating appellant’s conviction for criminal attempt and with its ultimate assessment that permitting both convictions would violate his constitutional rights against double jeopardy. . . . We reach that conclusion, however, by first deciding that the statute’s text is ambiguous with respect to whether both convictions should be permitted, and we then consider the pertinent extra-textual factors. See Tex. Penal Code § 21.02(c); Tex. Gov’t Code § 311.023. . . . [W]e conclude that the statute’s legislative intent was to permit one punishment where continuous sexual abuse is alleged against a single victim within a specified time frame. We also conclude that this intent extends to the statute’s enumerated predicate offenses and to criminal attempts to commit those predicate offenses.”

D’s conviction for tampering with evidence was properly reversed because the State alleged only that D destroyed the evidence (by swallowing a baggie and pills), then presented no evidence that they were in fact destroyed by their passage into D’s body, or evidence from which their destruction could be inferred. Rabb v. State, 434 S.W.3d 613 (Tex.Crim.App. 2014).

        COA reversed D’s conviction for tampering with physical evidence under Tex. Penal Code § 37.09(a)(1) and rendered an acquittal. The State filed a petition asking whether COA (1) erred in failing to find overlap in the terms “conceals” and “de­stroys,” (2) erred in not permitting the fact finder to infer the evidence was destroyed, and (3) was required to reform the judgment to a conviction on a lesser-included offense rather than acquit.

        CCA held that while there is some overlap between “conceals” and “destroys” for purposes of § 37.09(a), no rational trier of fact could have found that D destroyed the evidence in this case. However, because COA did not have the benefit of Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014), CCA remanded for COA to consider whether it could have reformed D’s conviction to attempted tampering with evidence rather than entering a judgment of acquittal.

CCA granted habeas relief because D met her burden in satisfying both prongs of the Strickland test to establish that she received ineffective assistance. Ex parte Overton, 444 S.W.3d 632 (Tex.Crim.App. 2014).

        D, convicted of capital murder for the death of a four-year-old, met the two Strickland prongs: Defense counsel’s performance fell below a reasonable standard, and there was a reasonable probability that the outcome of D’s trial would have been different but for that performance. First, counsel admittedly failed to present the testimony of the leading expert on hypernatremia, or sodium intoxication. Second, there was a reasonable probability that counsel’s performance affected the result of the trial. The doctor was extremely well qualified; his deposition not only refuted much of the State’s testimony, but also established that he was better informed on the subject of salt intoxication than the State’s expert. Because CCA granted relief on D’s first claim of ineffective assistance, there was no need to address the second issue of whether the State failed to disclose exculpatory evidence. CCA reversed D’s conviction and remand her case to the trial court for a new trial.

D’s guilty plea was unknowing and involuntary because, on further inspection, the seized substances did not con­tain illicit materials. Ex parte Mable, 443 S.W.3d 129 (Tex.Crim.App. 2014).

        D pleaded guilty to possession of a controlled substance and was sentenced to two years’ imprisonment pursuant to a plea bargain. He did not appeal. Soon after, the Houston Forensic Science Center finished testing the seized substances and discovered that they did not actually contain illicit materials. In response, D filed a habeas application. The State and trial court both agreed that he was entitled to relief on the basis of “actual innocence.” CCA granted relief, but on the basis of an unknowing and thus involuntary plea.

        “At least in Texas cases, the term ‘actual innocence’ applies only in circumstances where the accused did not actually commit the charged offense or any possible lesser included offenses. In this case, the applicant pleaded guilty to possession of a controlled substance. Therefore, it is possible that he intended to possess a controlled substance (which is not alone an offense) or that he attempted to possess a controlled substance (which is a lesser included offense of possession).” However, D was entitled to relief. Because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts; the defendant must have “sufficient awareness of the relevant circumstances.” The standard is whether the plea is a voluntary and intelligent choice among the alternative courses of action open to the defendant. In this case, all parties involved, including D, incorrectly believed D had been in possession of drugs. “This fact is crucial to this case, and while operating under such a misunderstanding, [D] cannot be said to have entered his plea knowingly and intelligently.” Accordingly, CCA held that D should be allowed to withdraw his plea. CCA set aside the judgment and remanded D to the sheriff to answer the charge against him.

COA did not have the benefit of CCA’s recent decision regarding court costs; CCA vacated COA’s judgment and remanded. Shaw v. State, 438 S.W.3d 582 (Tex.Crim.App. 2014).

        D was convicted of murder and sentenced to life in prison. On appeal, he argued that the evidence was insufficient to support the $334 in court costs assessed against him. COA agreed, relying on its opinion in Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012). The State filed a petition for review to which CCA replied: “We recently handed down our opinion in Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014), in which we set forth a roadmap for resolving questions regarding court costs. . . . The Court of Appeals in the instant case did not have the benefit of our opinion in Johnson. Accordingly, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinion in Johnson. No motion for rehearing will be entertained.”

COA properly reached the merits of D’s argument because the issue of reliability of the expert’s testimony was preserved for review; COA also properly applied the Rules of Evidence and law regarding the admissibility of expert testimony. Bekendam v. State, 441 S.W.3d 295 (Tex.Crim.App. 2014).

        D was convicted for DWI and sentenced to 20 years in prison and ordered to pay a $10,000 fine. She appealed, claiming that the trial court erred in admitting the expert testimony of the Department of Public Safety forensic scientist who tested the blood sample and issued the toxicology report. COA held that the trial court did not abuse its discretion in admitting the testimony. D filed this petition arguing that COA incorrectly applied the law for admissibility of expert testimony, misconstrued Tex. Evid. R. 702, and decided an important question of law that was not settled. The State filed a cross-petition, claiming that COA failed to address its argument that D’s error was not preserved. CCA affirmed COA.

        CCA held that D’s issue was preserved for review and overruled the State’s ground. CCA also overruled D’s grounds for review, citing evidence that the expert testimony was reliable.

D’s complaint was preserved for review; D was not re­quired to object to the exclusion of a self-defense in­struc­tion with specificity to put the trial court on notice as to which theory of self-defense he was requesting because that was the only defense available to D. Bedolla v. State, 442 S.W.3d 313 (Tex.Crim.App. 2014).

        D was convicted of aggravated assault with a deadly weapon and leaving the scene of an accident involving injury; the jury assessed a sentence of three years’ imprisonment and a $10,000 fine for aggravated assault and a five-year probated sentence and $5,000 fine for leaving the scene. D appealed the court’s failure to include a self-defense jury instruction. COA held that the issue was not preserved for review. D filed this petition, which CCA granted to consider whether COA erred in holding that D failed to preserve his complaint regarding the trial court’s refusal to submit a self-defense with deadly-force instruction because uncharged contemporaneous conduct could have given rise to a self-defense instruction. CCA reversed COA and remanded for consideration of the merits of D’s issue.

        “The State argues that Appellant failed to preserve error because he did not inform the trial court of the specific basis of his self-defense claim. . . . [T]here was only one defense—self-defense with deadly force—that would justify the conduct with which Appellant was charged. The court of appeals focused on the evidence of Appellant hitting [complainant], which was contextual extraneous-offense evidence and not evidence of the charged offense. Only deadly-force self-defense would have justified Appellant’s conduct of aggravated assault with a deadly weapon as charged in the indictment. There would be no reason for Appellant to request an instruction on a defense to conduct with which he was not even charged. The court of appeals should have focused on the charged offense rather than considering the uncharged conduct in analyzing Appellant’s request for a jury instruction.”

D was not entitled to a jury instruction on voluntary con­duct because he knowingly possessed the skimmer, and the jury was entitled to determine whether he knew it was contraband. Ramirez-Memije v. State, 444 S.W.3d 624 (Tex.Crim.App. 2014).

        A jury found D guilty of fraudulent possession of identifying information under Tex. Penal Code § 32.51(b) by use of a skimmer. D appealed, arguing that the court erred in failing to instruct the jury on voluntary conduct under § 6.01 and on presumptions under § 2.05, and erred in admitting testimony that he was from Mexico and was working illegally in the United States. COA reversed the trial court and remanded. The State filed this petition, which CCA granted to consider this question: Is a defendant entitled to an instruction on voluntary possession when he claims he did not know the forbidden nature of the thing he possessed, or is his defense merely a negation of his knowledge of surrounding circumstances that is required by § 6.03(b)?

        CCA held that D was not entitled to the requested instruction, reversed COA, and remanded to COA for consideration of D’s remaining issues. “Criminal responsibility is established if the person voluntarily engaged in the act, omission, or possession with the mental state required for the specific offense. Texas Penal Code § 6.02(a). While a voluntary act is usually some sort of bodily movement, possession is shown by care, custody, control, or management. Id. at § 1.07(a)(39). Thus, knowingly receiving an object is a voluntary act under Section 6.01(b); knowing the forbidden nature of the object that is knowingly possessed is the culpable mental state under Section 6.03. . . . If there was evidence that the skimmer had been slipped into Appellant’s bag without his knowledge, then there may be a question of voluntary possession and Appellant may have been entitled to an instruction regarding the requirement of a voluntary act. But here it is undisputed that Appellant knowingly had the skimming device, which contained the identifying information, in his possession. Appellant knowingly received the skimming device and knew that he was transferring the device. This satisfies the requirement of a voluntary act under Section 6.01. . . . Appellant said that he did not know that his conduct was illegal or that the device was contraband because he did not know what the device was or what was on the device. . . . The jury heard this testimony and the testimony of agents who said that Appellant told them that he was given cash and electronics for transferring the device. This evidence goes to the mens rea of intent to harm or defraud, upon which the jury was properly instructed.”

Court of Appeals

After acquitting D of tampering with physical evidence, COA determined that the judgment should not be reformed to convict him of the lesser-included attempt to tamper because there was no basis for a conclusion that the trial court necessarily determined that D acted with the specific intent to destroy the baggie or pills, rather than acting only knowingly. Rabb v. State, 446 S.W.3d 892 (Tex.App.—Amarillo 2014, pet. granted) (see above).

        “Finding we may not reform the judgment of conviction, we leave undisturbed our previous judgment of acquittal.”

The evidence was insufficient to support a conviction for making a false entry in a governmental record based on a federal tax return that D prepared because a federal tax return is not included in the governmental records protected under Tex. Penal Code § 37.10(a), in that it is not a document promulgated by the state, county, municipality, or political subdivision of the state, or any branch thereof. Dean v. State, No. 12-12-00410-CR (Tex.App.—Tyler Oct 22, 2014).

        D appealed her conviction for making a false entry in a governmental record. “Because the evidence is legally insufficient to support the conviction, we reverse and render a judgment of acquittal.”

Trial court abused its discretion by excluding evidence of D’s good character for moral and safe conduct around young children under Tex. R. Evid. 404(a) because he was charged with aggravated sexual assault of a child, and the evidence was directly relevant to the offense. Wilson v. State, No. 01-12-01125-CR (Tex.App.—Houston [1st Dist] Nov 20, 2014).

        The error was not harmless because other than the testimony of the victim and his sister there was little evidence in the record identifying D as the perpetrator of the sexual assaults, and his sole defense was the testimony of his friends and family that such actions were not in keeping with his character. COA reversed and remanded for a new trial.

Cops Are Now Using Body-Worn Cameras: Will You Be Ready at Trial?

A. Rising Use of Body-Worn Video Camera Technology by Police

Video and sound recording by the cops is not a new concept. In fact, law enforcement officers have recognized the value of video evidence for more than half a century with dash-cams in police cruisers. Another example of video recording by law enforcement is the television show “Cops,” which films police officers doing everything from scaring first-timers straight to hurdling fences after fleeing felons. A common moment in every episode is when suspects notice that a film crew is documenting everything. It is hard to miss the cameraman lugging around a heavy shoulder camera throughout the arrest. Some suspects are mad, some appear confused, but they always notice that they are being filmed.

However, new technology has inspired a trend among Texas law enforcement agencies that allows officers to capture similar audio and video evidence without the suspect realizing he or she is being recorded. Recently, officers in Texas and across the United States have been using small body worn video cameras (BWCs) that can record both sound and video contemporaneously during the officers’ law enforcement duties. Some of the cameras mount to glasses or sit on an officer’s ear like a Bluetooth headset; others attach to the officer’s chest or shoulder and resemble a walkie-talkie.1

Regardless of where the cameras sit on the officer’s body, BWCs are far less noticeable than a cameraman and his lighting crew, but they still create similar contemporaneous audio and video evidence. Unlike a potential witness’ memory, the clarity of digital video evidence does not fade with time.

Even though this technology will capture seemingly incontrovertible video images with contemporaneous audio, the evidence produced from the cameras raises many jurisprudential concerns—especially since the use of BWCs is largely unregulated and growing quickly.2

Below is a discussion on how the Confrontation Clause of the Sixth Amendment and the Texas hearsay doctrine apply to BWC evidence, taking into account the recent changes in both Texas and the Supreme Court evidentiary jurisprudence. This article will assume that the video evidence has been preserved for use in court and discusses the admissibility of the evidence at trial.

B. BWCs and a Defendant’s Right to Confront

If prosecutors attempt to substitute BWC recordings for live testimony at trial, the first objection that should pop into a defense attorney’s mind is the Confrontation Clause of the Sixth Amendment. Although the hearsay doctrine is important, no statement is admissible at trial if it violates a defendant’s right to confront, even if a state’s hearsay rules would admit it. Therefore, understanding this constitutional right is especially important following significant developments in recent Supreme Court decisions.

1. An Overview of Recent Confrontation Clause Cases

The Sixth Amendment of the United States Constitution mandates, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” This “Confrontation Clause” imposes a general requirement that witnesses testifying against someone must appear in court to offer their testimony under the scrutiny of crossexamination.3 Below is a brief summary of three modern-day cases that shape the current Supreme Court interpretation of the Confrontation Clause; however, this synopsis does not substitute for reading Crawford, Davis, and Bryant in their entirety.

  • In Crawford v. Washington, Crawford was accused of stabbing the victim in front of Crawford’s wife.4 Police arrested and interrogated Crawford and his wife. At trial, Crawford claimed self-defense because the victim had a knife. Over objection, the judge allowed into evidence the wife’s recorded statement that contradicted his story.
    • Finding this to be a violation of the Confrontation Clause, the Supreme Court abandoned the “indicia of reliability” test, overruling its predecessor Ohio v. Roberts.5 Instead, Crawford drew a line between testimonial and nontestimonial statements. Although they left “testimonial” undefined, the Court noted that the Confrontation Clause only applies to testimonial statements and offered a few examples of testimonial statements.6
    • Since Crawford, the Confrontation Clause has required the declarant to be subject to cross-examination before any of that declarant’s out-of-court testimonial statements can be admitted at trial unless an exception applies. In other words, if testimonial evidence is at issue, then “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”7
  • In Davis v. Washington, the Supreme Court took another look at the Confrontation Clause in two consolidated domestic violence cases.8 In both of the cases, juries convicted the defendants of domestic violence charges. Also in both cases, the victims failed to appear in court to testify, yet their out-of-court statements were admitted into evidence over Confrontation Clause objections.9
    • These cases allowed the Court to distinguish testimonial and non-testimonial statements by looking at similar cases with an important distinction.
      • In one case, Davis v. Washington, the trial court admitted the victim’s out-of-court statements on a recorded 911 call made by the victim only minutes before officers arrived.10 The victim told the operator that her ex-boyfriend, the defendant, “[i]s here jumpin’ on me again. . . . He’s usin’ his fists.”11 After arriving on the scene, officers “observed [the victim]’s shaken state, the fresh injuries on her forearm and her face, and her frantic efforts to gather her belongings and her children so that they could leave the residence.”12 The court admitted the 911 recording under the excited utterance exception to hearsay after finding the statements were non-testimonial.13
      • In the other case, Hammon v. Indiana, officers responded to a domestic disturbance report and questioned the victim as she sat alone on the front porch. She and the defendant both denied that a physical al­ter­ca­tion had occurred even though the officers found shattered glass on the floor from a recently broken gas heater.14 The officers separated the two and questioned the victim again. She eventually told the officer that the defendant assaulted her prior to their arrival. She then complied with the officer’s request to sign an affidavit with the allegations.15 Over objection, the trial court allowed the officer to testify to her oral statements under the excited ut­terance hearsay exception and admitted her written affidavit into evidence under the present sense impression exception.16
    • Because these cases juxtaposed in an objective manner, the Court used them to guide trial courts in distinguishing non-testimonial statements from testimonial statements.
      • Non-testimonial statements are those made when “circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” The Court held that the first case, which allowed the 911 call of the victim during the altercation, was an example of non-testimonial statements. The Court found that the victim’s statements on the 911 recording were made to assist in the ongoing emergency—resolution of the physical altercation as it actively occurred. The Court noted that her statements were “speaking about events as they were actually happening” as she “call[ed] for help against [a] bona fide physical threat.” Therefore, the Confrontation Clause does not bar them.
      • Testimonial statements occur “when the circumstances objectively indicate . . . no such ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events po­tentially relevant to later criminal prosecution.” The example here comes from the other domestic vio­lence case discussed above. There, the victim made accusatory statements in response to police questioning her on the front porch away from her assailant after the altercation had been resolved. The Court found her statements similar to those in Crawford because she faced “no emergency in progress,” and the interrogating officer “was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’” Therefore, the Confrontation Clause bars the use of her statements at trial regardless of whether they were admissible under that state’s hearsay doctrine.
    • The Supreme Court advised trial courts that “they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”17
  • In Michigan v. Bryant, police officers responded to a dispatch that a man had been shot in a parking lot.18 Upon arrival, officers found a victim with a gunshot wound to his stomach. In response to police questioning, the victim said, “Rick shot me,” and talked about where and how the shooting occurred, all of which incriminated the defendant. The victim died a few hours later, but the trial court allowed the officers to testify to the victim’s statements over objection.
    • A majority of the U.S. Supreme Court held that the victim’s statements to officers were non-testimonial and therefore did not violate the Confrontation Clause. The majority used a combined factor approach to find the “primary purpose” of the interrogation and recommended that lower courts conduct the primary purpose assessment by “objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.”19
    • The majority held that the victim’s perception (clinging to life as a gunshot victim) and the officers’ perceptions (reacting to the threat of a potential armed suspect), to­gether with all parties’ statements and actions, objectively indicated that the interrogation’s primary purpose was solving an ongoing emergency.20 Therefore, “Covington’s identification and description of the shooter and the location of the shooting were not testimonial hearsay.”21
  • Bryant muddled any Confrontation Clause clarity that followed the consolidated, distinguishable cases from Davis. Also, Bryant threw in a hodgepodge of factors and dramatically widened the “ongoing emergency” exception, which now allows far more judicial discretion.22

2. Modern Confrontation Clause Applied to BWC Evidence

Bryant offers prosecutors a significant advantage over defense attorneys when witnesses—especially victims—fail to ap­pear. Finding the interrogation’s primary purpose is highly context-dependent; the case encourages good prosecutors (and defense attorneys) to learn each of the factors listed in Bryant to compare any similarities to their facts. Before Bryant, BWCs would probably bring less evidence into trial, but the expansion of the “ongoing emergency” doctrine in Bryant has narrowed the protections of the Confrontation Clause.23 Defense attorneys should note that far more 911 calls are likely to be ruled admissible on a Confrontation Clause objection after Bryant.

Defense attorneys should note that crimes of domestic violence are often completed by the time officers arrive. If the conflict has been resolved, then defense attorneys should argue that there is no ongoing emergency, and any damaging statements are inadmissible under the Confrontation Clause.

Post-arrest reconciliation between the assailant and victim can cause problems for a prosecutor in the face of the Confrontation Clause, especially when a DA’s office has a no-drop policy. Prosecutors will probably examine the array of factors under Bryant to look for similarities to their case. Defense attorneys should look for ways to show that there was no “ongoing emergency,” and if there was an emergency, then it had dissipated prior to the declarant making the statement.

Applying Davis before Bryant, Texas courts would hesitate to admit statements made by an unavailable victim-witness in a domestic violence case unless the officers (and their BWCs) arrived before the brouhaha had settled.24 In Davis, the recently smashed appliances, the frightened wife, and uncooperative sus­pect were not enough to render the victim’s out-of-court state­ments admissible against the defendant. After Bryant, however, the ongoing emergency “factor” acts more like an ongoing emergency “floodgate” for admitting statements made to law enforcement, as long as prosecutors effectively utilize the factors listed in Bryant.25

3. An Unpublished Case Illustrates a Problem for Defense Attorneys

A recent DWI case in Texas illustrates the difficulties that defense attorneys should prepare for. In Sutton v. State, Christopher Downs, an off-duty police officer, called 911 to report a drunk driver and described “the motions of the defendant’s vehicle and how it was shifting across the lanes of traffic.”26 Officer Downs stayed on the phone with the 911 operator as he followed Sutton to his house. After Sutton parked in his driveway, the officer approached Sutton and asked him to sit on the curb. Sutton complied and talked with the officer—as the recording continued—until another officer arrived to arrest Sutton. At trial, the judge admitted the entire 911 tape over objection.

Finding the recorded statements non-testimonial, the appellate court affirmed Sutton’s DWI conviction because “Downs was describing an ongoing emergency regarding [Sutton’s] condition and a potential criminal offense in progress.”27 The facts of Sutton should disturb defense attorneys familiar with the contemporary Confrontation Clause. The opinion was brief, but classifying these circumstances as an ongoing emergency was almost certainly incorrect—especially when the obedient Sut­ton sat on a curb in front of his parked car long after the “on­going emergency” was complete.

The onset of BWC technology will generate more ongoing emergency claims by prosecutors, but defense attorneys should still make specific objections to redact any absent witness’ statements on the audio recording that describe “past events potentially relevant to later criminal prosecution.” Judges tend to pay more attention to pretrial objections written in the following line-by-line format:

Time Stamp (approx.)




Officer tells D he “knows” D is lying

Confrontation Clause, Hearsay, Relevance


Witness says D hit her in the face.

Confrontation Clause, Hearsay

Even if they are overruled, this organized pretrial objection format allows you to respond “subject to the previous objections” when the video is offered instead of objecting repeatedly by the seat of your pants, which may result in accidentally waiving an appealable issue, annoying the judge, or losing credibility with the jury for repeatedly overruled objections.

C. BWCs and the Texas Hearsay Doctrine

This section focuses on the Texas hearsay rules relevant to statements captured by BWCs. Although hearsay objections often go hand-in-hand with a Confrontation Clause objection, defense attorneys should raise and address both objections when contesting the admissibility of an out-of-court statement. Preservation of error is key, and appellate courts will not automatically treat “objection, hearsay” as a Confrontation Clause objection (or vice versa) when considering whether error was preserved on appeal.

1. Overview of Texas Hearsay Doctrine Applied to BWCs

Hearsay has the inherent tendency to bring unfair prejudice, mislead jurors, cause confusion of issues, or evoke fabrication.28 The Texas Rules of Evidence define hearsay as any “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”29

Rule 801(e)(2) allows admissions by party-opponents, so a hearsay objection will not exclude the defendant’s statements, but the officer’s statements may be inadmissible hearsay even when interacting with the defendant.30 BWCs will reinforce the impact of defendant’s admissions by eliminating the risk of misperception, exaggeration, and fabrication of out-of-court admissions.31 Although the cameras offer these important protections to defendants, they come with a cost: memorializing everything a defendant says even if the defendant was unaware of the BWC and decided to give a “profane” and “acrimonious tirade” to the officer.32

A recorded out-of-court statement at issue may fall into one of the hearsay exceptions in Rule 803.33 The Court of Criminal Appeals has noted that an officer’s statements can qualify as an excited utterance or present-sense impression, which are both discussed below.34

Rule 803(2) defines an excited utterance as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”35 When examining a statement offered as an excited utterance, Texas courts look for three requirements, all of which must be proven by the prosecutor to use the exception:

(1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous; (2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.36

Rule 803(1) defines a present-sense impression as a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”37 While excitement is the key to admitting statements under 803(2), the present-sense impression exception requires immediacy as its essential factor.38 Although the two exceptions overlap, the critical distinction is the requirement of contemporaneity.39 Theoretically, “the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity.”40 In other words, a present-sense impression offers reliability parallel to an excited utterance by replacing the excitement requirement with the safeguard of substantial immediacy.41

In Fischer v. State, the Texas Court of Criminal Appeals analyzed the present-sense impression exception in a split decision that may materially affect the admissibility of BWC evidence.

2. Fischer v. State: The Thin Line Between Reflect and React

John Robert Fischer (Fischer) had just pulled into his apartment complex when Officer Abel Martinez (Martinez) stopped him for not wearing a seat belt.42 Martinez smelled alcohol, so he asked Fischer if he had been drinking.43 With a candid but slurred response, Fischer admitted that he had consumed “three wines.”44 Martinez retreated to his vehicle momentarily to “dictate[] into his microphone that [Fischer] had ‘glassy, bloodshot eyes’ and ‘slurred speech.’”45 The officer “made four separate trips back to his patrol car” to dictate his observations into the microphone as Fischer performed, and subsequently failed, several field sobriety tests.46

After his arrest, Fischer moved to suppress the audio portion of the video as inadmissible hearsay.47 Although the trial court found it admissible under the present-sense impression exception, the appellate court reversed, with the Texas Court of Criminal Appeals affirming the reversal in a 5–4 split decision.48 The court held that any “reflective narratives, calculated statements, deliberate opinions, conclusions, [and] conscious ‘thinking-it-through’ statements” by a police officer are inadmissible.49 Because Officer Martinez strolled back to his police car several times to “reflect upon the event and the conditions he observed,” the court held that this “diminish[ed] the reliability of the statements and render[ed] them inadmissible.”50 The court discussed the inherent reliability of statements that qualify under the present-sense impression exception:

If a person observes some situation or happening which is not at all startling or shocking in its nature, nor actually producing excitement in the observer, the observer may yet have occasion to comment on what he sees (or learns from other senses) at the very time that he is receiving the impression. . . . [These] comments . . . have such exceptional reliability as to warrant their inclusion within the [present-sense impression] hearsay exception . . .51

Although Fischer v. State did not address body-worn video recordings specifically, the reasoning might open up a door to admissibility on body-worn video evidence. The Fischer majority did not allow the officer’s statements under this exception because of insufficient contemporaneity and the adversarial context of the interaction. However, only five of the nine justices agreed with the majority opinion, and the contemporaneous nature of BWC evidence might lead to a different result in a future case.

Until then, Fischer is a great case for defense attorneys. Prosecutors will likely attempt to use the present-sense impression exception to admit statements captured by BWC technology. Remind the court that “reflective narratives, calculated statements, deliberate opinions, conclusions, [and] conscious ‘thinking-it-through’ statements” are inadmissible under that exception.52 For example, during most DWI stops, the arresting officer usually lists off a litany of conclusions and deliberate opinions about the arrestee’s state of intoxication.53 Defense attorneys should fight to have these inadmissible hearsay statements redacted from the audio and make timely objections to specific statements to preserve error.

In the future, look for another article on BWC technology that will predict the categories of crimes most likely to see the evidence, offer considerations for practitioners, and discuss issues on preservation and policy for BWC evidence. If you have any questions or want to discuss my research in detail, feel free to email me at or reach me at 817-454-5965.


1. BWCs usually stay on the head, shoulder, or chest, but TaserTM also offers the Taser CamTM, which is mounted on the Taser to record a point-of-view from the weapon itself. See

2. See Tristan Hallman, “Dallas police have first fatal officer-involved shooting captured on uniform-worn cameras,”, 2014, (noting that both Dallas and Fort Worth police officers are using BWCs). The Dallas Police Department is field-testing BWCs with a plan of implementing them on 2,500 officers by the end of 2014, but Dallas PD acknowledges that a recent officer-involved fatal shooting in June 2014 is not the first one to be recorded by BWCs. See id. (noting another officer-involved shooting was captured by an officer’s personal BWC in 2010).

3. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

4. See id. at 42.

5. Ohio v. Roberts, 448 U.S. 56, 64–66 (1980).

6. See Crawford, 541 U.S. at 68 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.).

7. Id.

8. Davis v. Washington, 547 U.S. 813, 818–21 (2006)(consolidating Davis v. Washington and Hammon v. Indiana).

9. Id.

10. Id. at 817–19 (noting the only testifying witnesses were the two officers that arrived on the scene four minutes after the call).

11. Id. As the recording continued, “the operator learned that Davis had ‘just r[un] out the door’ after hitting McCottry” and fled the scene. Id. at 818.

12. Id. at 818 (quoting State v. Davis, 154 Wn.2d 291, 296 (2005)(en banc) (internal quotations omitted).

13. State v. Davis, 154 Wn.2d at 296.

14. Davis v. Washington, 547 U.S. 813, 820 (2006).

15. Id. The handwritten affidavit read as follows: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id.

16. Id. at 821.

17. Id. at 829.

18. Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).

19. See id.

20. Id. at 1160–64. Because the encounter happened “6 blocks away and 25 minutes earlier,” Justice Scalia argued that Covington’s statements “had little value except to ensure [Bryant’s] arrest and eventual prosecution.” Id. at 1170 (Scalia, J., dissenting).

21. Id. at 1167.

22. In his dissent, Justice Scalia listed the following factors he found in the majority opinion: “[T]he type of weapon the defendant wielded . . . the type of crime the defendant committed . . . the medical condition of the declarant . . . if the declarant is injured, whether paramedics have arrived on the scene . . . whether the encounter takes place in an ‘exposed public area’ . . . whether the encounter appears disorganized . . . whether the declarant is capable of forming a purpose . . . whether the police have secured the scene of the crime . . . the formality of the statement . . . and finally, whether the statement strikes us as reliable.” Michigan v. Bryant, 131 S. Ct. 1143, 1175–76 (2011) (Scalia, J., dissenting)(internal citations omitted).

23. See id.

24. See, e.g., Vinson v. State, 252 S.W.3d 336, 337–40 (Tex. Crim. App. 2008) (applying Davis to find no Confrontation Clause violation in admitting the 911 recording of a domestic violence before the responding officer arrived, but finding a violation in admitting the officer’s recitation of her statements after he arrived).

25. See Michigan v. Bryant, 131 S. Ct. 1143, 1175–76 (2011)(Scalia, J., dissenting)(internal citations omitted).

26. Sutton v. State, 05-10-00827-CR, 2011 WL 3528259 (Tex. App.—Dallas, Aug. 12, 2011, pet. ref’d)(mem. op., not designated for publication).

27. Id. (emphasis added).

28. Fischer v. State, 252 S.W.3d 375, 378 (Tex. Crim. App. 2008).

29. See Tex. R. Evid. Ann. 801(a), (d). Remember that the hearsay doctrine still applies to a declarant’s statements even if that declarant is testifying at trial. In other words, a witness’ hearsay statements do not become admissible just because they are testifying in court. Also, be prepared for responses on why certain evidence is “not offered for the truth of the matter asserted.” See, e.g., Cates v. State, 752 S.W.2d 175, 177 (Tex. App.—Dallas 1988, no pet.)(admitting bystander’s statement, “Do you need help?” because it was “offered to show that such a statement was in fact made” and not “for the purpose of proving the truth . . . that the officer needed help”).

30. Tex. R. Evid. Ann. 801(e)(2).

31. Cf. Kimball v. State, 24 S.W.3d 555, 563 (Tex. App.—Waco 2000, no pet.) (noting the officer’s uncertainty on the exact language of suspect’s “nursing a beer” statement).

32. See Meyer v. State, 78 S.W.3d 505, 507 (Tex. App.—Austin 2002, pet. ref’d)(admitting audio recording characterized as a profane and “acrimonious tirade” by defendant, despite his lack of knowledge that he was being recorded).

33. Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008)(noting that hearsay exceptions can be “roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence”). BWCs require a police of­ficer’s physical presence, which makes the “unreflective statements” category the most likely vehicle to admitting the contemporaneously recorded interaction. The “reliable documents” category seems applicable to BWC evidence under the “Public Records and Reports” exception, but Rule 803(8) specifically “exclude[es] in criminal cases matters observed by police officers.” Tex. R. Evid. Ann. 803(8)(B) (West 2011).

34. Fischer, 252 S.W.3d at 382. Rule 804 offers additional hearsay exceptions dependent on the unavailability of the declarant. Tex. R. Evid. Ann. 804 (West 2011). Other than the rarely used dying declaration exception, BWC evidence will probably not use Rule 804 as a path to admissibility. See Michigan v. Bryant, 131 S. Ct. 1143, 1151 n.1 (2011)(noting the Supreme Court has “suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause”).

35. Tex. R. Evid. Ann. 803(2) (West 2011).

36. Kesaria v. State, 148 S.W.3d 634, 642 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006).

37. Tex. R. Evid. Ann. 803(1)(West 2011).

38. See Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008)(noting both exceptions originated from “res gestae,” an imprecise term describing statements “made without any reflection, thought process, or motive to fabricate or exaggerate”).

39. See id. at 380.

40. Id.

41. Id. at 378–81.

42. Id. at 376–77.

43. Id. at 377.

44. Id.

45. Id.

46. Id.

47. Id.

48. Id. at 387.

49. Id. at 381 (“‘Thinking about it’ destroys the unreflective nature required of a present sense impression”).

50. Id. at 381.

51. Id. at 380 (quoting Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App.1992)).

52. Id. at 381–83.

53. Some examples may include the following: “You have no reason to refuse these tests unless you’re intoxicated,” or, “These tests are really easy to do if you’re sober,” or, “I let most people go, and I don’t arrest people unless I know they’re intoxicated.”

Anxiety and the Trial Lawyer

I am a lawyer who has allowed anxiety to debilitate and torture me for much of my life. Although I did not realize it at the time, I know now that it began to surface during childhood. Becoming aware was my first step to overcoming the paralysis. It did not surprise me to learn that anxiety disorders are the most prevalent disorders in our society. Further, when I think about my life, it did not surprise me to hear that it is not anxiety disorders that are most often treated by therapists. This lack of attention can have detrimental effects on our society. For us, it affects the way we live and represent our clients. Problems or consequences of untreated anxiety—specifically, untreated social phobia disorder and avoidant personality disorder—can be profound. There are ways to prevent or overcome anxiety disorders or issues without medication.

Anxiety is defined as “an abnormal and overwhelming sense of apprehension and fear often marked by physiological signs (as sweating, tension, and increased pulse), by doubt concerning the reality and nature of the threat, and by self-doubt about one’s capacity to cope with it” (, retrieved from Anxiety is believed to be unique to humans, and unlike other animals, we are able to use our memory and imagination (The Free, retrieved from Since we have that ability, it will take most of us more effort to live “in the moment.” During a conversation with Kathy St. Clair, a psychodramatist from Roanoke, Virginia, she noted that “fear is always ‘future’ related” (St.Clair, 2012). Fear about the future probably involves memory of the past and imagination of the future. Of course, some anxiety is normal and probably natural and necessary (Morrison, 1995, p. 247). Think about all the future-related issues that come with representing our clients. As an example, when we are overly anxious during voir dire, we are less able to listen to the jurors and respond genuinely. Instead, we may resort to the controlling cross-examination of the juror without any thought to how we are making them, or the other jurors, feel.

Anxiety is an element of almost all mental disorders, and it can rise to a level that requires treatment (Morrison, 1995, p. 247). Fear, and the anxiety associated with it, seems to be the main component of Social Anxiety Disorder and Avoidant Personality Disorder. Some of the criteria for social phobia are “persistent fear of one or more social or performance situations . . .” (Diagnostic and Statistical Manual of Mental Disorders, 4th ed. text rev., 2000, p. 456). Some people with a social phobia may also have an Avoidant Personality Disorder, which is more severe than a Social Phobia (American Psychiatric Association, 2000, p. 455). It involves a pattern of social inhibitions and abnormal sensitivity to feeling inadequate and possible criticism (American Psychiatric Association, 2000, p. 721). Regardless of the level of anxiety, it has the likely potential to affect our ability to be present and in the moment at any given time in our life.

Jacob L. Moreno, psychiatrist and founder of psychodrama, has said that there is an inverse relationship between anxiety and spontaneity. As we become more spontaneous, the anxiety will decrease. Moreno defines spontaneity as “an adequate response to a present situation” (J. L. Moreno, 1953, p. 336). But he also takes into consideration the novelty of the situation (Moreno, 1955, p. 108). Are we talking about a new situation or an old situation? As an example, I am walking down the hall and a friend says, “How are you doing?” As many of us usually and automatically do, I respond, “Fine, how are you?” I would call that an unnovel response to an unnovel comment and not very spontaneous or creative. Are we really listening and do we genuinely care? We all want to be heard. How does that apply to what we do?

When I first began looking at this issue, I focused on anxiety as being very negative and initially thought that if I had less anxiety, I would be more spontaneous. But, Moreno says to look at the cause of the problem. “Anxiety sets in because there is spontaneity missing, not because ‘there is anxiety’ and spontaneity dwindles because anxiety rises” (J. L. Moreno, 1953, p. 338). Moreno originated the “twin concept” of spontaneity and creativity as a part of all human beings and their relationships to others (Moreno, 1955, p. 105). Moreno views creativity not as a talent, but as a “spontaneous-creative process” (Nolte, 2008, p. 106). Creativity is the potential we have had and will have. Spontaneity is what makes being creative possible (Nolte, 2008, pp. 107–108). Moreno believes that creativity applies to all things that have been created, will be created, and those that might be created, but will not be (Nolte, 2008, p. 108). If we are not reaching our potential because we lack spontaneity, how do we get it?

Even if we are generally spontaneous, there are many times in our life when we go through the routine and use very little, if any, spontaneity. I think about growing up in our church as a child listening to the long-winded men saying the same prayers, using the same fancy words and phrases that, inside, meant very little to me. Moreno gives an example of repeating a prayer that has been recited many times. The speaker can choose to merely repeat it or give it life with his own spontaneity (Nolte, 2008, pp. 112–113). Spontaneity cannot be stored up like some forms of energy. It is available in the moment and the “here and now” (Nolte, 2008, p. 114). The warm-up process is a part of the creative process and essential to being able to be spontaneous. Warming up is similar to an athlete preparing for or warming up for an event (Nolte, 2008, p. 128). Moreno uses the word “conserve” to refer to a product of spontaneity and creativity. Anything that has been created is a conserve (Nolte, 2008, p. 120). Think about all the cultural conserves that humans have created that have separated us.

Many of our conserved ways have served us well, but the way we relate to our conserves can be positive and negative. The repeated prayer or song, like the “Star Spangled Banner,” may be good products of the originator’s creativity, but if they are not repeated with the individual’s own spontaneity, they will probably come out dull, lifeless, and meaningless (Nolte, 2008, pp. 122–123). If we become controlled by the conserves, we risk becoming dull, boring, and mechanical people (Nolte, 2008, p. 126). Think about our conserves in what we do daily. How can we bring life and emotion to what many on the other side would like to remain dull and boring? Think about the PowerPoint presentation, which was a product of spontaneity and creativity and worked well the first time, but was different the next time on the losing end of the trial.

Looking back, I remember struggling with anxiety in my early teens. I suppose that I knew it was excessive, but was either too embarrassed to ask for help or did not think it would make a difference. Part of my reluctance came from feeling as though it was my issue alone. Initially, I tried to control it with alcohol. Later, I began to combat it by facing it, but it was not until I began to participate in psychodrama workshops that I was able to overcome it.

For many, psychodrama is a big part of the solution. Psychodrama was developed by J. L. Moreno and is considered a form of therapy by many, but it is creating a drama that can be therapeutic for the group. He defined psychodrama as exploring the truth by dramatic methods. We live in the same world with each other, but we all experience it differently. My truth or perception of this world is different than yours and anyone else’s. Psychodrama explores an individual’s perception of the world or universe (Nolte, Guide to Training, 2009, p. 1). Yes, some of us are leery and skeptical, but if we can get people past the name “psychodrama” and into the action of a drama, potential critics will soon see the benefits. After all, we do not have a problem with the word “psychology” even though it begins with “psycho.” Getting past the closed minds in this world is important, but it is possible if we begin earlier in the life process.

For a lot of people, the older we get, the more closed minded we become. Many may be content living a controlled conserved life rather than a more spontaneous one (Nolte, The Psychodrama Papers, 2008, p. 126). Psychodrama is therapeutic and uses parts of many therapy theories. To me, psychodrama incorporates concepts of person-centered, existential, and Gestalt therapies because it promotes genuineness, empathetic listening, non-judgmental sharing, and the premise that most people have it in them to find the solutions to their issues. It could be the best way to become more self-aware of who we are, and why. When we become more self-aware of the unconscious awareness, or the dark side, or shadow, we are able to make better choices in life (Ken Wilber, 2008, p. 43). Using psychodrama techniques early would help people better understand themselves and others in the developmental process.

In addition, Carl Rogers’ three conditions to creating a growth-promoting climate for our children might be key for causing change and growth earlier in life (Rogers, 1980, pp. 115–116). Imagine if we taught children that it is safe to be genuine with each other. What if our children had less of a desire to put up fronts or facades with each other? What if our children learned to accept and care for each other unconditionally? What if our children are taught to listen without judgment and really understand their classmates? I am thinking back about the possibility of feeling free to share my feelings of inadequacy and anxiety without fear. I am sure I would not have been the only one with those feelings. Instead, I kept them inside and felt alone in my struggles. Regardless of our individual fears or issues, we must deal with them so that we can live a more joyful life, and then more able to reach our potential.

When we are free to express and share what we keep hidden deep inside, we build self-esteem and self-confidence, which will go a long way in preventing drug abuse and other destructive actions of youth and adults. Our “insides” are unique yet similar to others’, so we are not alone. We cannot judge our insides on the others’ “outsides” since most of the outsides we see are usually not reality. Think about layers we wear on our outsides which appear in different forms. They might be flashy jewelry, fancy suits, and sometimes pretty matching handkerchiefs, or it might be the words we use to impress or the anger we express in court to hide or replace a feeling such as helplessness or inadequacy. When we can share our insides without the fear of being judged, we free ourselves from the chains of fear. Psychodrama provides a way to become aware of our individual issues and free ourselves from blocks to our spontaneity and creativity (Nolte, 2008, pp. 127–128). When we are more spontaneous and creative, our lives become more enjoyable and the people we represent will benefit.

Our society has it backwards. We are not preventative; we are, instead, more punitive. Money is not an issue when we jump on the punishment wagon. Put a bandage on it or kill him and go on with our lives. Our society does not have the “we” attitude. It is more of the “me” and “mine” attitude. A more preventative society is extremely necessary, especially with identifying and treating anxiety and other issues. To do that, we have to be informed and educated in the mental health field. We have to be a more empathetic society. Teachers and educators should be those who genuinely care about our students and are more aware of the harmful effects of anxiety and the possible dangers of strict compliance with our societal conserves. Educators are in prime positions to influence our youth and should be valued by our society. When we help others to be more spontaneous and creative, they will be more able to overcome anxiety and reach their God-given potential. We do not have to be perfect lawyers or human beings. We have to realize that what we have to offer as lawyers and humans, right now in the present, if genuine, is good enough.


(n.d.). Retrieved October 30, 2012, from Merriam-Webster website:

(n.d.). Retrieved October 29, 2012, from Free Dictionary website:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.). Arlington: American Psychiatric Association (2000).

St. Clair, K., Personal interview. October 26, 2012.

Moreno, J., Who Shall Survive?, 2d ed. Beacon, New York (1953).

Wilber, Ken, Patten, Terry, Leonard, Adam, Morelli, Marco, Integral Life Practice. Boston & London: Integral Books (2008).

Moreno, J., “Theory of Spontaneity-Creativity.” Sociometry, Vol. 18, No. 4, 105–118 (1955).

Morrison, J., DSM-IV Made Easy: The Clinician’s Guide to Diagnosis. New York: The Guilford Press (1995).

Nolte, J., The Psychodrama Papers. Hartford: Encounter Publications (2008).

Nolte, J., Guide to Training. (2009) Retrieved February 14, 2012, from National Psychodrama Training Center:

Rogers, C. R., A Way of Being. New York: Houghton Mifflin Company (1980).

The Other Hat

Last week in Far-Off County, I was the pro tem prosecutor in a felony case involving timber theft. This was odd for me. I am a defense attorney. I bleed the Constitution. I do not trust the government (and have no reason to). I deeply believe our justice system is flawed, biased in favor of the State (in both law and resources), and unfair to most criminal defendants.

But I had a job to do. Duties to carry out. An investigation. A personal tour of the multi-acre rural crime scene. Witnesses to interview. Grand jury. Indictment. Massive amounts of case-law research because of difficult and diffuse property law issues pervading the case. A tough case to prosecute even though I absolutely believed the defendant was 100% guilty and there was ample evidence of same.

To make things more interesting, I was also confronted with a defense attorney who is not only a good friend, but is brilliant and aggressive and clever and experienced, and is completely capable of kicking my tail unless I do everything exactly right—and even then she might still crush me. A magnificently formidable foe. I respect her.

As a defense attorney who has taken many felony cases to trial over the last decade, I have seen unfairness, dishonesty, convict-at-all-costs mentalities, and massive differentials between State assets available to prosecute a case vs. defense assets available to protect and fight for the defendant. There is no comparison. It is grotesquely unequal and unfair. Ask any defendant who has ever gone through a felony trial.

So I thought to myself, “This will be the fairest damn trial to this defendant that any defendant could ever have, period.”

That is how I attempted to conduct myself at all times while I served as the prosecutor in this case.

Although the defense attorney and I disagree (and probably always will) about some important issues of property law in the case, and although we fought (ferociously) over these before and during the trial, for the most part I sat silent while the defense attorney put on one hell of a fight before the jury.

I admired her as she attempted to assassinate my case.

I attempted to be quiet (for me, anyway), subdued (impossible, but I tried), and polite and respectful to everyone in the courtroom, including the defendant.

I stayed away from any weak evidentiary issues, made no real effort to get before the jury the defendant’s past nastinesses with the law (which would have convicted him in the case at hand, but that would have been incredibly unfair to the defendant, as well as unconstitutional), and did my best to keep the case and the trial focused strictly on what lay between the four corners of the indictment against him.

You know you are probably being fair and reasonable as a prosecutor when the defendant in a felony case, who is facing possible state jail prison time if convicted, personally thanks you during the trial for being fair and honorable and decent to him.

You can probably rest easy about whether you are being fair and just and reasonable as a prosecutor in a felony case when the defendant personally thanks you twice during the trial for being fair and honorable and decent to him.

And you can take it to the bank that you have been fair and just and reasonable as a prosecutor in a felony case when the defendant, after being convicted by the jury, having been found guilty of felony theft of timber, and now facing years of probation and restitution and fees and the harshnesses of felony probation—where a serious screw-up means prison time—comes up to you after the trial is over and, with tears rolling down his cheeks, thanks you AGAIN for being fair and honorable and decent to him.

“You could have f*cked me, but you were fair.” And he asked to shake my hand.

Which I did.

This trial was fair and just because I as the prosecutor made it so. It would have been so easy to not make it so. To seek a conviction at any cost.

I have seen a number of prosecutors over the years butcher and destroy justice in their malicious greed and sadistic need to get a conviction. I have taken them on, shed blood for my clients, fought until I dropped, wept when I lost, and cried again when I ultimately defeated them.

I will dismiss a case before I ever act the way they did. A prosecutor’s job is to seek justice. That is all I sought in this case, and nothing, not even a scintilla, more.

I wonder, despite the guilty verdict and felony conviction the jury delivered, if I will ever receive another pro tem appointment as prosecutor in another felony case in any county.

I doubt it.

After all, in my years as a defense attorney, I have learned time and time again that a criminal trial is not actually supposed to be a fair and just proceeding. Not really. That is just a grand illusion.

But it was the reality in this case.

Damn right.

Personal Recognizance Bond for Attorneys Held in Contempt

Imagine this:

Defense Attorney (to Judge): “This is a chickenshit case, which should never have been filed . . .”1
The Court: “Counsel, I am holding you in contempt for that remark. That will be $100. Sheriff, take him away and don’t bring him back until he pays.”
Defense Attorney: “I want a personal recognizance bond and a contempt hearing before another judge. Here is my motion.”
The Court: “Motion granted.”

The Statute:

The Texas Government Code, Section 21.002(d) (2004):

An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.


The Texas Legislature provides that a lawyer held in contempt of court has a right to a hearing before another judge.

This “readjudication” of contempt (by a judge who is not already offended) runs both to guilt and to punishment for the alleged contempt. If the original court takes any action other than referring the case for assignment, those acts are void. Jamilah v. Bass, 862 S.W. 2d 201 (Tex. App.—Houston [14th Dist.] 1993, no pet.).

These statutes do not apply to an attorney who is appearing only as a witness. In Ex Parte Howell, 488 S.W. 2d 123 (Tex. Crim. App. 1972), the district judge cited the lawyer for contempt and certified the case to another judge, and thereby “fulfilled all his requirements for holding an ‘officer of the court’ guilty of contempt.” Id. at 126. When the subsequent hearing began before the assigned judge, the lawyer refused to answer a prosecutor’s question and was again cited for contempt, but:

“[W]hen he took the witness stand to testify . . . he lost his status as an officer of the court and became a witness and subject to a finding of direct contempt” by the judge. Id.

When an attorney is found in contempt by the assigned judge, he may appeal but is not again entitled to release on personal recognizance. He may be required to post an appeal bond, just like a defendant. In re Graham, 2014 Tex. App. Lexis 4926 (Tex. App.—Austin, May 8, 2014), subsequent application for a writ of habeas corpus refused, 2014 Tex. App. Lexis 6288 (Tex. Crim. App., June 12, 2014).

A sample motion follows. You can take it with you. You, or a colleague, might need it.

1. The use of the epithet “chickenshit” in the jury’s presence is constitutionally protected speech where, on the facts of the case, it does not constitute an imminent threat to the administration of justice, Eaton v. City of Tulsa, 94 S.Ct. 1228 (1974).

January/February 2015 Complete Issue – PDF Download



22 | 28th Annual Rusty Duncan Advanced Criminal Seminar: By the Numbers
25 | Cops Are Now Using Body-Worn Cameras: Will You Be Ready at Trial? – By Bryan Wilson
32 | Anxiety and the Trial Lawyer – By Tony Vitz
35 | The Other Hat – By T. W. Davidson
37 | Personal Recognizance Bond for Attorneys Held in Contempt – By Edward Mallett

9 | Executive Director’s Perspective
11 | Ethics and the Law
13 | Off the Back
16 | Federal Corner
20 | Said & Done

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

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


The Board of Directors held their quarterly meeting in Fort Worth on Saturday, December 5, 2014. Following are the motions made and their respective votes. There were 70 board members present, as well as 14 guests. The following motions were made:

MOTION: Minutes—September 13, 2014
Motion to adopt the minutes from the TCDLA Board Meeting on September 13, 2014, in Dallas, made by Mark Snodgrass, seconded by Susan Anderson—motion carries.
MOTION: Seize Discussion
Motion to seize discussion on the floor, made by Jim Darnell, seconded by Coby Waddill—4 oppose—motion carries
MOTION: Proposed Resolution for TCDLA to Support an Independent State Counsel for Offenders, Established Pursuant to ABA
Motion made by John Convery, seconded by Nicole DeBorde—motion carries.

This current fiscal year, FY 2015, TCDLA and CDLP (through the CCA Grant) will put on a total of 54 live CLE seminars in Texas and Louisiana. In addition, there will be 38 1-hour online CLEs on our website. Hopefully you will be able to attend or watch. We thank our course directors, speakers, our leadership, board members, and staff for working together as a team to accomplish this extraordinary achievement.

TCDLA has the following outstanding DWI CLE in the months to come. We hope our members who defend those accused of a DWI offence will attend these CLE and support TCDLA.

March 26–28, 2015New OrleansMastering Scientific Evidence in DUI/DWI Cases*
May 1, 2015Arlington8th Annual DWI Defense Project
July 17, 2015Austin2nd Annual Lone Star DWI Blood 101
August 21, 2015Houston13th Annual Top Gun DWI
November 12–13, 2015San Antonio11th Annual Advanced DWI

*Co-sponsored with the National College for DUI Defense

The 28th Annual Rusty Duncan Advanced Criminal Law Course is being held June 18–20, 2015, in San Antonio. The special Early Bird rate is available through February 28th. Please start making plans to attend. There are scholarships available through TCDLEI. We have submitted to the CCA for judicial travel stipends for this one event. We will follow up with the judges if approved. This year’s theme is “United We Stand.”

Join us for the annual Pachanga (Party) at the Goldsteins’ (Christine and Gerry). The Goldstein Pachanga is a cultural icon: 600+ people gather in the Goldsteins’ backyard around their pool and feast on food, beverages, and great company.

The TCDLA Membership Party will be a Casino Night with a masquerade theme. It will be a fundraiser to provide scholarships to lawyers. We will have prizes for the biggest winners at Casino Night. So you can enjoy the evening and know you are making a contribution to a worthy cause.

We will have a bike ride with our guide, Gerry Goldstein. We are also working on a morning fun run down the unique and picturesque San Antonio River. See you in San Antonio.

Special thanks to Jani Maselli Wood (Houston) and our course directors for the Writs and Ineffective Counsel seminars held in Austin in January. Thanks to their efforts we had 66 attendees. Special thanks to Jeremy Rosenthal (McKinney), our course director for the Nuts ’n’ Bolts seminar held in Austin in January. Thanks to his efforts we had 52 attendees.

Special thanks to Jani Maselli Wood (Houston) and Bradley Hargis (Austin), course directors for the Training Your Defense Team to Win seminar held in Austin in January. Thanks to their efforts and the support of our members, we had 60 attendees.

Training Your Defense Team to Win, a CDLP grant seminar, is a unique training open to criminal defense attorneys who regularly represent the indigent, legal assistants, Texas judges, paralegals, social workers, investigators, mitigation specialists, and students. We have had very good participation through the first five of these CLEs. Future team seminars will be held in the following locations. Please bring your entire staff and members of your defense.

April 17Waco
April 24Longview
July 9–10South Padre Island

Don’t have a local criminal defense bar in your area? Would you like to re-energize and jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: To Err Is Human


One of my lawyer friends sent me the question: “What is ethics?” I wrote him an essay on what Aristotle, Socrates, Confucius, and even Gene Autry wrote about ethics, and that response will be presented in a future article. It sounds like an easy question to answer, but in reality it is not. Joe Connors sent me his ideas on the subject, which will be displayed later. The following response is from Raymond Fuchs, one of the Ethics Committee members.

Ethics is a code of conduct, applied by rules. In our case it is governed by the State Bar, it is often confused with morals, which is our personal standard of conduct, defined by our beliefs, not rules. One may be ethical and immoral, but one who has high moral standards will rarely be unethical. Our personal morals are much more important. They will guide us in all phases of life. Ethics will only guide us in the practice of law. Do unto others as you would have them do unto you, is a moral standard, but something well worth living by.

The phrase “to err is human” is often used as part of the longer phrase from Alexander Pope’s poem An Essay on Criticism: “To err is human; to forgive, divine.” The poem also states “a little learning is a dangerous thing,” as well as “fools rush in where angels fear to tread.” It is estimated by the U.S. Institute of Medicine that 440,000 people die each year as a result of preventable medical errors. Preventable medical errors in hospitals are the third-leading cause of death in the U.S. Only heart disease and cancer kill more Americans. The journal of Patient Safety recently published a study that as many as 440,000 people die each year from preventable medical errors in hospitals. The new research followed up on a study done 15 years ago that estimated 98,000 died from preventable error.

Google to err is human and you will find that this phrase is used most as it relates to errors made in the medical system. Go to Methodist Hospital in Houston where Dr. Marc Boom is the CEO and you will find he does everything humanly possible to minimize any errors there. He is the leader of an organization of 17,000 people. Dr. Boom makes sure his employees are trained in a way to not make mistakes. Dr. Michael DeBakey, who was the top doctor at Methodist Hospital, once asked a resident who did not know the details he should have known about a patient, “Are you stupid or do you just not care!?” The resident, knowing what would happen if he said, “I do not care,” said “I am stupid,” to which Dr DeBakey replied “Why is it that I am always right?”

If courthouses were run the way Dr. Boom runs Methodist Hospital, they would be a much better place. If lawyers were trained the way Dr. DeBakey trained doctors, there would be fewer mistakes made by lawyers. Yes, it is not a perfect world, but when you are dealing with a client’s life all measures need to be taken ethically to defend your client. Return the calls, go to the jail, and keep your client advised. Prepare your case by getting a file set up with the indictment or information, a copy of the penal code section that relates to your case, a copy of the punishment options, and a copy of the jury charge if your client goes to trial. Also get a complete history of your client and get your client to sign a waiver of attorney-client privilege if there are trustworthy family members or friends who can help. Warn your client that wives and girlfriends can turn out to be his worst enemy, and get a waiver if your client wants you to share his case information with them. The hotline is now starting to get calls from citizens complaining about their lawyers, the prosecutor, and the judge.

Do not back down from abusive judges or prosecutors. Make sure the court reporter is taking down what they are saying. Remember they are not on our team. We know that innocent people are locked up by unethical actions of prosecutors and judges who coach them. We also know people are locked up because of legal errors.

How many legal errors result in citizens being convicted or placed on some type of probation? Do your best to make sure you are not one of the statistics. Go back and read the oath you took when you became a lawyer, and report unethical behavior of judges, prosecutors, and other lawyers. It is a tragedy when innocent human beings end up in prison, on death row, or on some form of probation. History has proven that innocent people have been put to death in legal systems because of neglect or corrupt actions by people in our legal system.

“To forgive is divine” is easy to say but hard to do. Forgiveness is great but do not forget it does not rectify what wrong has been done. Hindu followers believe in karma. Try to have good karma and come back as a butterfly rather than a roach or maggot.

We have the statistics on people dying from medical errors. How many people—because of legal errors, or “I am just stupid,”  as the resident told Dr. DeBakey—end up getting convicted, getting placed on some form of probation, get sent to jail or prison, get executed, lose their jobs and families because of legal errors? How many are legal errors or the result of unethical actions by the judge or prosecutor?

Report unethical behavior of prosecutors and judges or fellow lawyers . . . We are dealing with human lives in a different way than people in the medical profession, but the consequences of bad things that happen in our courts are terrible. Do everything ethically you can for your client even if the coordinator is complaining about resets, even if the judge wants to move his docket, and even if the prosecutor is pushing you. It is you that will be fading heat, not them. When a prosecutor does not ethically comply with discovery rules, is it because they are stupid or just do not care? Remember to tell your client: “Never discuss your problems with someone who cannot solve it. Silence can not be misquoted.”

Off the Back: Ignorance of the Law Is Now an Excuse – By Stephen Gustitis


Here’s my take on another inauspicious decision by the United States Supreme Court. It’s Heien v. North Carolina, 574 U.S. __, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). If you’ve been under a rock recently and missed the action, the upshot of the case is police officers can now rely upon a reasonable mistake of law to justify a traffic stop. In April 2009, a Surry County–North Carolina sheriff’s deputy stopped a vehicle because one of its two brake lights was not functioning. The deputy believed this was a traffic offense. Mr. Heien was subsequently arrested for possessing cocaine. On appeal the North Carolina Court of Appeals interpreted the traffic statute and decided a single working brake light was all the law required. Consequently, the deputy was mistaken about his interpretation of the brake light statute.

Mr. Heien had not committed a traffic offense. The United States Supreme Court held the deputy’s mistake of law was “reasonable” and, as a result, determined there was reasonable suspicion justifying the stop under the United States Fourth Amendment. The Court noted that “an officer may ‘suddenly confront’ a situation in the field as to which the application of a statute is unclear—however clear it may later become . . . our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable . . . Thus an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty bound to enforce.” Heien, No. 13-604, slip op. at 11–12 (U.S. December 15, 2014)[my emphasis].

Before Heien, federal and state courts had never considered an officer’s misunderstanding of traffic law as justification for a Fourth Amendment intrusion. For example, in United States v. Miller, 146 F.3d 274 (5th Cir. 1998), the Fifth Circuit held a traffic stop must be based upon a “clearly establish[ed]” violation of the law and that police must have probable cause to believe a traffic violation had occurred. Miller, 146 F.3d at 279. In United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013), the Tenth Circuit held a traffic stop must be “objectively justified” under the Fourth Amendment. In other words, the stop must be “based on an observed traffic violation.” 721 F.3d at 1241. “[Failure] to understand the law by the very person charged with enforcing it is not objectively reasonable.” Id. If the alleged traffic violation forming the basis of the stop was not a violation of state law, there was no objective basis for justifying the stop. United States v. Raney, 633 F.3d 385, 390 (5th Cir. 2011). In State v. Haas, 2012-Ohio-2362, 971 N.E.2d 436 (Ohio Ct. App. 2012), the Ohio court held that when a person’s conduct does not facially violate the traffic statute providing the sole basis for the officer’s alleged reasonable articulate suspicion, the stop is unconstitutional. Haas, 971 N.E.2d 436. The court in Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006), held an officer’s suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws. See also United States v. Lopez-Valdez, 178 F.3d 282, 288–89 (5th Cir. 1999)(if an officer stopped a vehicle for conduct that did not, in fact, constitute a traffic violation, there was no “good faith exception” to the exclusionary rule to justify the initial stop); Fowler v. State, 266 S.W.3d 498, 504–05 (Tex. App.—Fort Worth 2008, pet. ref’d)(a traffic stop cannot be based on a mistaken understanding of traffic laws); and State v. Police, 377 S.W.3d 33, 36 (Tex. App.—Waco 2012)(an officer’s mistaken, though honest, misunderstanding of traffic law will not justify a stop). Ominously, in a footnote, the Court of Criminal Appeals left undecided the question of whether a police officer’s reasonable mistaken interpretation of law could serve as an objective reasonable basis upon which to effectuate a traffic stop. See Mahaffey v. State, 364 S.W.3d 908, 915, at fn. 8 (Tex. Crim. App. 2012).

Another issue compounding the confusion is whether probable cause or reasonable suspicion is the correct standard by which to justify a stop based solely upon a traffic law violation. The Fifth Circuit has held the police may stop a vehicle only if they had probable cause to believe a traffic violation had occurred. United States v Cole, 444 F.3d 688, 697 (5th Cir. 2006)(citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L. Ed. 2d 89 (1996)). The Texas Court of Criminal Appeals has held the decision to stop an automobile is reasonable when an officer has probable cause to believe a traffic violation occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000)(U.S. Supreme Court recognized the decision to stop is rea­sonable when police have probable cause a traffic violation occurred); see also Haas v. State, 172 S.W.3d 42, 50 (Tex. App.—Waco 2005, pet. ref’d)(decision to stop an automobile is reasonable when officer has probable cause). In Heien, the Supreme Court did not apply probable cause as the threshold justifying the traffic stop. Rather, they used reasonable suspicion.

What should we do when prosecutors begin to avail themselves of Heien? First, be prepared to distinguish the facts. Is your case factually different in a way that applying it is an abuse of discretion? Heien involved a complicated traffic statute. Is your statute straightforward and unambiguous? Has a Texas court interpreted it? In Heien, the traffic law in question “pose[d] a quite difficult question of interpretation.” Heien, 135 S.Ct. 530 (Kagan, J., concurring). “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction.” Id. “If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not” [my emphasis]. Id. Research the case law for an interpretation of your applicable statute. According to Justice Kagan, the trial court judge would simply apply rules of statutory construction to determine whether the police made a reasonable mistake. In her words, the statute must be “genuinely ambiguous” before the stop can be justified as a reasonable mistake of law. So, the simpler you construct the statute the more likely the officer’s mistake was unreasonable.

Heien is not yet Texas law. The case simply creates a constitutional protection beneath which the states cannot slip.  Consequently, our Texas Constitution Article 1, Section 9, may hold greater protection for the citizen accused. See Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)(Texas Constitution can provide more protection than U.S. Constitution). Include a Texas constitutional objection and obtain an adverse ruling. Also, object under Article 1.06 of the Texas Code of Criminal Procedure prohibiting unreasonable searches and seizures, as well as the Texas exclusionary rule under Article 38.23 of the Code.

Lastly, prepare for factual battle in the suppression hearing. Since we don’t know how the Court of Criminal Appeals will treat our Texas constitutional and criminal code objections, we’d like to provide them ample ammunition to help our clients. The Heien court stated clearly the officer’s “subjective understanding” of the law was irrelevant. Heien, No. 13-604, slip op. at 11. However, how much the officer studied the law is an objective fact. How much (or how often) he studied should be admissible to prove they were a poor study. Also, whether the officer was trained on the law is an objective fact. Remember the State bears the burden of proof that a Fourth Amendment intrusion was justified. Once the accused satisfies the initial threshold requirement of producing evidence rebutting the presumption of proper police conduct, the burden of proof shifts to the State to establish the search or seizure was reasonable. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Heien requires the police officer’s mistake of law be “objectively reasonable.” So pressure the prosecutor prove it!

Heien v. North Carolina is a problem for the criminal defense bar . . . but it’s not insurmountable. Develop a mastery of the court’s reasoning. Train trial court judges how to apply the case in your specific situation. Compel prosecutors to prove the cop’s mistake was reasonable. Show how simple the statute really is. Good luck!