Monthly archive

August 2015

July/August 2015 SDR – Voice for the Defense Vol. 44, No. 6

Voice for the Defense Volume 44, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

When a court was satisfied that a felon would not retain control over his guns, 18 U.S.C.S. § 922(g) did not apply, and the court had equitable power to accommodate a felon’s request to transfer firearms to a third party. Henderson v. United States, 135 S. Ct. 1780 (2015).

        After being charged with the felony offense of distributing marijuana, D was required as a condition of bail to turn over firearms he lawfully owned. D ultimately pleaded guilty and, as a felon, was prohibited under 18 U.S.C.S. § 922(g) from possessing firearms. D asked the Federal Bureau of Investigation, which had custody of his firearms, to transfer them to his friend. But the agency refused. D then filed a motion in federal district court seeking to transfer his firearms, but the court denied the motion on the ground that the transfer would give him constructive possession of the fire­arms in violation of § 922(g). The Eleventh Circuit affirmed. The Supreme Court unanimously vacated the Eleventh Circuit and remanded.

        A court-ordered transfer of a felon’s lawfully owned firearms from Government custody to a third party is not barred by § 922(g) if the court is satisfied that the recipient will not give the felon con­trol over the firearms so that he could use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal pro­ceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like D because that would place the owner in violation of the law; because § 922(g) bans constructive as well as actual possession, it also prevents a court from ordering the transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use. The Government further argued that § 922(g) prevented all transfers to a third party, no matter how independent of the felon’s influence, unless that recipient was a licensed firearms dealer or other third party who would sell the guns on the open market. But that view conflates possession, which § 922(g) prohibits, with an owner’s right merely to alienate his property, which it does not.

Conviction for threatening another person under 18 U.S.C. §875(c) required proof of the defendant’s subjective intent to threaten; the court’s instruction requiring only negligence with respect to the communication of a threat was insufficient to support D’s conviction. Elonis v. United States, 135 S. Ct. 2001 (2015).

        Under a pseudonym on Facebook, D posted self-styled lyrics containing graphically violent language and imagery concerning his estranged wife, co-workers, a kindergarten class, and law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and that D was exercising his First Amendment rights. However, many who knew D saw his posts as threatening, including his boss, who fired him, and his wife, who was granted a state court protection-from-abuse order against him. When D’s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring D’s Facebook activity and eventually arrested him. D was charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” At trial, D requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the court told the jury that D could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. D was convicted on four of the five counts and renewed his jury instruction challenge on appeal. The Third Circuit affirmed. The Supreme Court reversed and remanded.

        Section 875(c) did not indicate whether the defendant must have intended that the communication contain a threat, and the parties could show no indication of a particular mental state requirement in the statute’s text. Federal criminal statutes that are silent on the required mental state should be read to include only the mens rea necessary to separate wrongful from innocent conduct. In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement would fail to protect the innocent actor, the statute would need to be read to require specific intent.

        The presumption in favor of a scienter requirement should apply to each statutory element that criminalizes otherwise innocent conduct. In Section 875(c), that required proof that a communication was transmitted and that it contained a threat; because the crucial element separating legal innocence from wrongful conduct was the threatening nature of the communication, the mental state requirement applied to the fact that the communication contained a threat. D’s conviction was premised solely on how a reasonable person would view his posts, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of awareness of some wrongdoing. This Court has long been reluctant to infer that a negligence standard was intended in criminal statutes, and the Government failed to show that the instructions in this case required more than a mental state of negligence. Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. Given this disposition, the Court found it unnecessary to consider First Amendment issues.

Fifth Circuit

The district court did not err in treating D’s Nevada con­viction to commit murder as a “crime of violence” under USSG § 2L1.2, notwithstanding the fact that Nevada conspiracy does not require proof of an overt act. United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. 2014).

        The Sentencing Commission did not intend for the term “conspir[acy]” under § 2L1.2 to require an overt act as an element of each and every conspiracy offense; the language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder. Alternatively, the Fifth Cir­cuit concluded that the generic, contemporary meaning of conspiracy to commit murder does not require an overt act.

Where Government refused to move for an additional level off for acceptance of responsibility under USSG § 3E1.1(b) based on D’s refusal to waive his right to appeal, district court did not plainly err in denying that re­duction. United States v. Garcia-Carrillo, 749 F.3d 376 (5th Cir. 2014).

        Even assuming that D was entitled to a post-sentencing Guidelines amendment that held such refusals to be improper, any error did not affect D’s substantial rights where he was sen­tenced to 89 months imprisonment, within the substantial overlap between the Guideline range with the reduction (77 to 96 months) and the range without the reduction (84 to 105 months), and there was no evidence that would suggest a reasonable probability of a different sentence with a change in the Guideline range. The Fifth Circuit also declined to remand to the district court for consideration of the persuasive effect of the post-sentencing Guidelines amendment, as the First Circuit had done with respect to a different Guidelines amendment in United States v. Godin, 522 F.3d 133 (1st Cir. 2008).

Death-sentenced Texas D was entitled to appeal his claim that trial counsel’s failure to investigate and pre­sent adequate mitigating evidence violated his right to effective assistance; however, D was not entitled to appeal that he had the right for the federal district court to consider newly presented evidence that state habeas counsel failed to present. Escamilla v. Stephens, 749 F.3d 380 (5th Cir. 2014).

        D was entitled to a certificate of appealability (COA) on his claim that trial counsel’s failure to investigate and present adequate mitigating evidence violated his Sixth and Fourteenth Amendment right to effective assistance of counsel; however, D was not entitled to a COA on his claim that under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013), the federal district court should have considered newly presented evidence that state habeas counsel failed to present to the state habeas court. Martinez and Tre­viño do not apply to claims that were fully adjudicated on the merits by the state habeas court because those claims are, by definition, not procedurally defaulted. Thus, once a claim is considered and denied on the merits by the state habeas court, Martinez and Treviño are inapplicable and may not function as an exception to the rule of Cullen v. Pinholster, 131 S. Ct. 1388 (2011), barring a federal habeas court from considering evidence not presented to the state habeas court.

Under Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and its progeny, 18 U.S.C. § 249(a)(1)—employed in this case to prosecute three white defendants for willfully causing bodily injury to an African-American man—did not exceed Congress’ power to legislate under the Thirteenth Amendment. United States v. Cannon, 750 F.3d 492 (5th Cir. 2014).

        It was not irrational for Congress to conclude that racially motivated violence was a badge or incident of slavery that the U.S. Const. am. 13 empowered Congress to address. NOTE: Judge Elrod, the author of the court’s opinion, also wrote a concurring opinion urging the Supreme Court to address “a growing tension between [its] precedent regarding the scope of Congress’ powers under § 2 of the Thirteenth Amendment and the Supreme Court’s subsequent decisions regarding the other Reconstruction Amendments and the Commerce Clause.”

In drug case, district court impermissibly participated in plea negotiations, in violation of Fed. R. Crim. P. 11(c)(1), by giving D (who was balking at pleading guilty) spe­cific examples of negative results for defendants who rejected plea offers. United States v. Hemphill, 748 F.3d 666 (5th Cir. 2014).

        The district judge compared the evidence in D’s case to that in other cases and suggested, through a “success story,” that favorable results could occur when a defendant pleads guilty. Moreover, the error was not harmless because the rec­ord showed at least a reasonable probability that D would not have entered a guilty plea absent the district court’s comments. Accordingly, the Fifth Circuit vacated the judgment of conviction and remanded for further proceedings before a different district judge.

In drug and gun case, district court did not abuse its dis­cretion in refusing to give an instruction on withdrawal as a defense to conspiracy charges; to be timely, withdrawal from a conspiracy must precede the commission of an overt act. United States v. Salazar, 751 F.3d 326 (5th Cir. 2014).

        However, D did not “invite” the district court’s error in directing a verdict of guilty against him in violation of his Sixth Amendment right to trial by jury; nothing in the record sug­gested that D wished to change his plea of not guilty to a plea of guilty or that D consented to the directed verdict. Like­wise, D did not forfeit this error so as to trigger plain-error review. The district court explicitly acknowledged that D was preserving this argument for appeal. Even though defense counsel did not specifically reference the Sixth Amendment in­terest at stake or provide any legal authority demonstrating error, the court was well aware of the issue before it. Moreover, by telling the jury “to go back and find the Defendant guilty,” the district court improperly directed a verdict in violation of D’s Sixth Amendment right. It did not matter that D took the stand and essentially confessed to the crimes for which he was on trial. No amount of compelling evidence can override a defendant’s right to have a jury determine his guilt. This error was not appropriate for harmless-error analysis, because it would be meaningless to ask whether a jury would have returned the same verdict absent the constitutional error as a jury never rendered a verdict of guilty beyond a reasonable doubt. The Fifth Circuit vacated D’s conviction and remanded.

Even assuming arguendo that district court, in healthcare-fraud bench trial, erred in excluding evidence of an exculpatory polygraph result by defendant under Fed. R. Evid. 403 as prejudicial, the error was harmless in this case. United States v. Willett, 751 F.3d 335 (5th Cir. 2014).

In prosecution for alien-harboring conspiracy and substantive alien-harboring charges, district court harmlessly erred in admitting, pursuant to Fed. R. Crim. P. 404(b), evidence of a 2009 traffic stop (not culminating in arrest or prosecution), in which D was discovered to have two aliens in his vehicle. United States v. Gutie­rrez-Mendez, 752 F.3d 418 (5th Cir. 2014).

        The Government failed to establish the evidence’s conditional relevance under Fed. R. Evid. 104(b) because it presented insufficient evidence that D knowingly harbored illegal aliens at the time of the traffic stop; however, the improperly admitted evidence was harmless, in light of (1) that evidence’s weak and benign nature relative to the conduct for which D was on trial, and (2) the multiple limiting instructions given by the district court.

        (2) The Fifth Circuit noted that it was an “open question” whether it was impermissible “double-counting” to apply Sentencing Guideline enhancements under both USSG § 2L1.1(b)(5) and USSG § 2L1.1(b)(6) based upon the same conduct (here, the rape and attempted rape at knifepoint of two harbored aliens). However, the Fifth Circuit held that it did not need to resolve that question because the district court had explained that it would have given D the same sentence (the statutory maximum of 120 months) even if it were mistaken in its application of the Guidelines; this rendered any error harmless.

When a federal claim has been presented to a state court and denied, it must be presumed that the state court adjudicated the claim on the merits; with respect to Louisiana capital D’s claim that trial counsel were ineffective for failing to investigate and present evidence of the crime, this presumption was not overcome. Hoff­man v. Cain, 752 F.3d 430 (5th Cir. 2014), opinion amended on denial of reh’g and reh’g en banc, 763 F.3d 403 (5th Cir. 2014).

        The Fifth Circuit affirmed the district court’s denial of federal habeas relief, holding the following points. Under Harrington v. Richter, 562 U.S. 86 (2011), when a federal claim has been presented to a state court and the state court has denied relief, it must be presumed that the state court adjudicated the claim on the merits, although that presumption can be overcome; here, with respect to Louisiana capital D’s claim that trial counsel were ineffective for failing to investigate and present evidence of the circumstances of the crime, the Richter presumption was not overcome. Therefore, the state court’s im­plicit denial of that unaddressed claim qualified as a decision on the merits for which AEDPA deference was owed. The state court did not unreasonably apply federal law in rejecting D’s claims that counsel were ineffective by failing to prepare properly for the mitigation phase of trial, or by investigating and presenting the circumstances of the crime.

        (2) D’s claim of racial discrimination in the selection of the grand-jury foreperson was abandoned by D before trial and thus was procedurally defaulted under Louisiana law; because D did not meet the narrow exception to such default, the Fifth Circuit could not review the merits of that claim.

        (3) The state court did not act unreasonably in rejecting D’s claim of racial discrimination by the petit jury, evidenced by the alleged affidavit of one of the jurors. The consideration of such affidavits is disfavored, if not barred completely, by La. Code Evid. Art. 606(b). In any event, the state court would like­wise not have acted unreasonably or contrary to law in con­cluding that the affidavit did not support a finding of inten­tional bias or discrimination. Furthermore, the affidavit indicated that the jury acted on the basis of the evidence and jury instructions.

The Fifth Circuit granted Louisiana death-sentenced pris­oner authorization to file a successive petition con­tend­ing that under Atkins v. Virginia, 536 U.S. 304 (2002), he was ineligible for the death penalty due to his intellectual disability, even though prisoner’s petition was time-barred because it was filed more than 10 years after Atkins. In re Campbell, 750 F.3d 523 (5th Cir. 2014).

        There was considerable evidence of D’s intellectual ability, including IQ tests that were not disclosed by the State, despite a request and an earlier Atkins challenge; even though prisoner’s petition was time-barred under the AEDPA because it was filed more than 10 years after the Supreme Court decided Atkins, the State’s nondisclosure of evidence of intellectual disability might constitute grounds for equitable tolling of the AEDPA statute of limitations, and the district court would be best-positioned to determine whether equitable tolling applied. Finally, the Fifth Circuit held that prisoner had made a sufficient showing of likelihood of success on the merits so as to warrant a stay of prisoner’s execution.

Court of Criminal Appeals

The issue was not whether the trial court had authority under Tex. Code Crim. Proc. art. 42.12 to impose reimbursement of the costs of confinement as a condition of D’s community supervision, but whether the judge had the authority to order D after revocation, as part of her sentence, to pay the balance of her fine, costs, and reimbursement. Mercer v. State, 451 S.W.3d 846 (Tex.Crim.App. 2015).

        “Here we are asked to consider whether a defendant on community supervision for a state-jail felony may be required to reimburse a county for the cost of her incarceration in county jail as a condition of her community supervision. How­ever, because we conclude the court of appeals incorrectly analyzed the relevant issue in this case, we vacate the judgment of the court of appeals and remand. . . . [COA] granted Appellant relief on an erroneous basis[.]”

“Safe place” in kidnapping statute Tex. Penal Code § 20.04(d) was ambiguous, and the determination of whether a place was safe should be made on a case-by-case basis; the jury properly rejected “safe place” as D’s mitigation defense. Butcher v. State, 454 S.W.3d 13 (Tex.Crim.App. 2015).

        “The punishment level for aggravated kidnapping is reduced from a first-degree felony to a second-degree felony if the kidnapper ‘voluntarily releases the victim in a safe place.’ [COA] concluded that the evidence was legally and factually suf­ficient to support the jury’s rejection of Appellant’s mitigating defense of release in a safe place. . . . [W]e shall affirm.” The evidence was legally and factually sufficient to support the jury’s rejection of D’s mitigating defense of release in a safe place, even though the complainant was released at a location near the abduction, where there was testimony that the area was desolate, the complainant was dropped off in the middle of the road, D kept the complainant’s mobile phone, and the complainant’s family did not have a phone at their house.

Rescinding a new trial order outside the 75-day time limit resulted in recalculating appellate timetables; the rescinding order would be treated as an appealable order under Tex. R. App. P. 26.2, and appellate timetables would be calculated from the date of that order. Kirk v. State, 454 S.W.3d 511 (Tex.Crim.App. 2015).

        The trial court revoked D’s deferred-adjudication probation, adjudicated him guilty of aggravated robbery, and sentenced him to eight years’ imprisonment. D’s sentence was imposed in court on March 7, 2013. On March 20 of that year, D filed a “Motion for Commutation of Sentence,” in which he requested a “time cut” and a new sentence of zero years. On March 25, D filed a notice of appeal. On May 17, the trial court entered an order granting a new trial on punishment. On May 20, the State filed a motion to rescind that order and requested that the trial court rule on the State’s motion by May 21. The trial court rescinded its order granting a new trial on punishment on May 22, 76 days after the imposition of sentence. D filed a motion to dismiss his appeal on the ground that the court’s latest order (rescinding the previous order grant­ing a new trial on punishment) was untimely. Relying on Awadelkariem v. State, 974 S.W.2d 721 (Tex.Crim.App. 1998), COA agreed, holding that the trial court lacked jurisdiction to rescind the order granting a new trial on punishment because the rescinding order was entered more than 75 days after the judgment of conviction. COA held that the grant of the new trial on punishment was never rescinded, and the case was restored to its position after D was found guilty. COA concluded that no final, appealable judgment remained over which COA had jurisdiction.

        CCA found that a trial court had the power to rescind an order granting a new trial, and that power was not subject to a 75-day time limit. “In a prior decision, we suggested that there was a time limit on the trial court’s power to rescind the granting of a new trial. We now conclude that there is no specific time limit on the trial court’s power to do so. Consequently, we reverse the judgment of the court of appeals.”

D had knowledge of the attorney fee and, therefore, could have challenged the sufficiency of the evidence supporting payment of the fee in a direct appeal from the initial order for deferred adjudication; failing to raise the issue in a direct appeal resulted in procedural default. Riles v. State, 452 S.W.3d 333 (Tex.Crim.App. 2015).

        D pled guilty to possession of a controlled substance with intent to deliver; upon deferred adjudication, D was granted com­munity supervision. After a year and a half, D’s community supervision was revoked, and she was sentenced to seven years in prison and ordered to pay all court costs, including her court appointed attorney fees. D appealed, arguing that the trial court erred in ordering her to pay the attorney fees because there was no evidence of her ability to pay. COA held that this claim was forfeited because she did not raise it in an appeal from the original deferred adjudication order. CCA granted D’s petition to determine whether D forfeited her claim even though the amount and certainty of the attorney fee was unknown to her at the time community supervision was imposed. CCA affirmed COA.

        With direct evidence of D’s acknowledgment of the existence of the attorney fee, the lack of knowledge of the exact amount of the fee did not make D’s case. “The record in this case reflects multiple points where Appellant acknowledged the obligation to pay the attorney fee. In Appellant’s written plea, she signed the section entitled ‘Court Costs and Fees’ admonishing her that there were mandatory costs of community supervision, which could include the fee for her court-appointed attorney. Appellant also signed her Application for Community Supervision, which stated that she would reimburse the county for the compensation of appointed counsel. Finally, Appellant’s Order for Deferred Adjudication, which she signed, specifically indicated that she would be required to pay all court costs including the ‘Court Appointed Attorney Fee.’”

Even if the jury had received the presumption-of-reasonableness instruction under Tex. Penal Code § 9.32(b) in D’s murder trial, a different verdict was unlikely because of the weakness of the defense evidence in com­parison to refuting evidence. Villarreal v. State, 453 S.W.3d 429 (Tex.Crim.App. 2015).

        “This case addresses whether a defendant has suffered egre­gious harm from the erroneous omission of a jury instruction that would have required the jury to apply a presumption of reasonableness as to his belief that the use of deadly force was immediately necessary to protect himself. See ex. Penal Code § 9.32(b). The State raises this question in its petition for discretionary review, in which it challenges the court of appeals’ reversal of the murder conviction of [D] based on the conclusion that he was egregiously harmed by the trial court’s omission of such an instruction. . . . We agree with the State’s contention that [COA] erred by concluding that appellant was egregiously harmed based on the existence of theoretical harm and based on an incomplete review of the record and the arguments of counsel. We reverse [COA] and remand. . . .

        “[A] charge on the presumption of reasonableness would have authorized the jury not to apply the presumption if it determined that the State had proved beyond a reasonable doubt either that appellant had no reason to know that [the deceased who was fighting with D] was attempting to commit murder or that appellant was otherwise engaged in criminal activity [(assault by threat)]. See Tex. Penal Code § 9.32(b). And, in light of the relative strength of the evidence in the record indicating that appellant was the aggressor and stabbed the unarmed [de­ceased] as compared to the weaker evidence giving rise to appellant’s justification defense, and considering that appellant’s defensive strategy relied upon two theories, only one of which would have been affected by the error, we are persuaded that there is no substantial risk of harm to appellant as a result of the omission of the instruction.”

On review of D’s aggravated robbery convictions, COA incorrectly applied Tex. R. Evid. 609 in finding that the trial court properly admitted remote felony convictions more than ten years old; the unambiguous language of Rule 609 supplanted the common-law tacking doctrine. Meadows v. State, 455 S.W.3d 166 (Tex.Crim.App. 2015) (see below).

        A jury convicted D of two counts of aggravated robbery and assessed punishment at 75 years’ incarceration for each count. COA overruled D’s sole point of error (that the court abused its discretion in allowing the State to cross-examine him about felony convictions that were more than 10 years old and about a misdemeanor conviction that was not a crime of moral turpitude). CCA sustained D’s grounds for review and remanded, holding that COA erred by using the general “outweighs” standard in Tex. R. Evid. 609(a), rather than the correct “substantially outweighs” test of Tex. R. Evid. 609(b). Rule 609(b) provided that evidence of a prior conviction was inadmissible if more than 10 years had elapsed since the later date of conviction, unless the court determined the probative value of the conviction supported by specific facts and circumstances substantially outweighed its prejudicial effect. The unambiguous plain language of the rule supplanted the common-law tacking doctrine, “tacking” a conviction that is out of date under Rule 609 onto a more recent conviction.

Reforming D’s conviction from felony murder to lesser-included injury of a child was not workable because the injury to a child offense contained varying penalties based on the culpable mental state of the defendant, and the jury instruction grouped various mental states. Rodriguez v. State, 454 S.W.3d 503 (Tex.Crim.App. 2015).

        “We granted Appellant’s motion for rehearing . . . to clarify our order that the trial court reform Appellant’s conviction from felony murder to injury of a child and conduct a new punishment hearing based on the reformed conviction. Appellant argues that remanding the case for an entirely new trial, rather than reforming the conviction and conducting a new punishment hearing, is the proper disposition. We agree.

        “Appellant was charged with felony murder with injury to a child as the underlying offense. We determined that the evi­dence was insufficient to support the felony murder conviction, but that the jury necessarily found her guilty of the lesser-included offense of injury to a child. However, the indictment stated that she ‘did then and there intentionally, knowingly, recklessly and with criminal negligence commit and attempt to commit a felony, namely injury to a child.’ The application paragraph of the jury charge included each of these mental states in the disjunctive, and the court defined each one. Then, when Appellant was convicted, the jury entered a general verdict. Therefore, there is no way to know whether the jury found that Appellant acted intentionally, knowingly, recklessly, or with criminal negligence in the starvation of her child. This is significant because the injury to a child offense contains varying penalties based on the culpable mental state of the defendant, and without a determination on mental state, the jury will have no guidance on the applicable punishment range. Tex. Penal Code § 22.04(e)–(g). . . . We made clear in [Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014),] that reformation is necessary where the jury found every element of the lesser-included offense and the evidence was sufficient to support a conviction on that offense in order to avoid an unjust acquittal. However, we did not intend for mandatory reformation to extend to circumstances where there are multiple lesser-included offenses that meet the criteria for reformation, or where we have no way to determine which degree of the lesser-included offense the jury found. . . . [COA] is reversed, and the case is remanded to the trial court for a new trial on the lesser-included offense of injury to a child by omission.”

CCA denied the State’s emergency motion to stay COA proceedings to recuse a COA justice. Leija v. State, 456 S.W.3d 157 (Tex.Crim.App. 2015).

        “In the court of appeals, the State filed a motion to recuse Justice Lee Ann Dauphinot. Sitting en banc, the court of appeals denied the motion, with three justices dissenting. Although no judgment has been issued by the court of appeals with respect to the appeal, the State has submitted a petition for discretionary review (PDR) seeking review of the order de­nying the motion to recuse and a motion to stay proceedings in the court of appeals. We decline. . . . The rules of appellate procedure provide that an initial PDR must be filed within 30 days after ‘either the day the court of appeals’ judgment was rendered or the day the last timely motion for rehearing or timely motion for en banc reconsideration was overruled’ by [COA.] With the word ‘judgment,’ the rules indicate that the right to file a PDR arises only after the court of appeals’ ultimate disposition of the case. While the denial of a recusal motion like the one before us is reviewable, there is no explicit right to file a PDR from an interim ruling. . . . Moreover, ‘[i]nterlocutory appeals are generally not permitted in Texas criminal proceedings.’ When a motion to recuse a trial judge is denied, review occurs only after final judgment in the trial court. There seems to be even less justification for allowing an interlocutory PDR from the denial of a motion to recuse an appellate justice. Refusing to allow a PDR in the situation before us runs only the risk of remanding the case to the court of appeals for a new review of the case.”

D’s statute-of-limitations defense was a category-three forfeitable right because there was no legislative violation of the Ex Post Facto Clause, given that the trial judge’s acceptance of the time-barred plea originated from plea negotiations with the State and D’s waivers of the defense. Ex parte Heilman, 456 S.W.3d 159 (Tex.Crim.App. 2015).

        D pleaded guilty to misdemeanor tampering with a governmental record after the relevant two-year statute of limitations expired. In return for D’s plea, the State agreed not to pursue indictment for felony tampering with a governmental record. In a habeas application, D challenged the trial court’s jurisdiction to accept his plea to the time-barred offense, arguing that his “pure law” limitations defense is a category-one absolute right under Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993). The habeas court granted relief, and COA affirmed. CCA reversed COA.

        In Marin, CCA constructed a three-part framework for criminal-justice rights: (1) “absolute requirements and prohibitions”; (2) “rights of litigants which must be implemented by the system unless expressly waived”; and (3) “rights of litigants which are to be implemented upon request.” A category-three right can be forfeited by a litigant “for failure to insist upon it by objection, request, motion, or some other behavior[.]” A statute-of-limitations defense is in Marin’s third category. “Yet more recently in Phillips v. State, [362 S.W.3d 606 (Tex.Crim.App. 2011),] we distinguished between two types of limitations defenses: (1) those that are ‘based on facts’ and (2) those that are ‘pure law.’ . . . [T]he second appears on the face of the instrument and therefore ‘gives rise to a statute-of-limitations bar’ that constitutes a jurisdictional defect. . . . [A] pure-law limitations defense, as a jurisdictional defect, could not be forfeited and could be raised for the first time on appeal or in a collateral proceeding. . . . [F]or Heilman’s plea agreement to stand, we must first overturn Phillips. . . . [B]ecause the information against Heilman showed that the statute of limitations on the misdemeanor offense to which he pleaded had run two months before his plea, prosecution on that offense was already ‘forever and absolutely barred’ under Phillips. . . . When we analyze rights under our Marin framework, we focus on the nature of the right at issue—not the circumstances under which it was raised. . . . But if we adhere to Phillips, we invite the very set of circumstances that we now address. Generally, a defendant who accepts the benefits of a plea agreement is estopped from challenging its validity. Yet estoppel does not apply when the trial court lacked jurisdiction. Therefore, because Phillips held that a pure-law limitations defense is an attack on a court’s jurisdiction, a defendant could ‘reap the ben­efits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so,’ as Heilman now tries to do.”

Court of Appeals

The trial court properly admitted D’s prior felony con­vic­tions because while the three convictions were re­mote and similar to the charged offense, the convictions had a high impeachment value. Meadows v. State, No. 02-12-00643-CR (Tex.App.—Fort Worth, Apr 30, 2015) (see above).

        “We cannot say, on the record before us, that the trial court could not have found that the probative value of the prior felony convictions substantially outweighed their prejudicial effect or that it abused its discretion by admitting them, particularly when [D] stated during his direct testimony that he had intended to steal money from the restaurant but that his objective had been to commit theft, not robbery, presenting the jury with a credibility issue to resolve. Because we conclude that the trial court did not abuse its discretion by admitting the three felony theft convictions, we overrule this remanded portion of [appellant]’s sole point.”

D preserved for appellate review his complaint that his arrest was illegal, and therefore the State’s motion for rehearing was denied, where he apprised the trial court of his complaint at a time when the trial court was in a position to grant his requested relief and cited the Fourth Amendment as a basis for his motion to sup­press. Clement v. State, No. 11-13-00055-CR (Tex.App.—Eastland May 7, 2015).

        “The clearest assertion by Appellant that Trooper Johnson lacked probable cause to arrest him occurred during [closing arguments on the motion to suppress] when defense counsel said: ‘[T]here’s no probable cause for his arrest’ (emphasis added). The State contends that this statement did not constitute a challenge to the legality of Appellant’s arrest because it followed counsel’s request to suppress ‘anything after the stop.’ The State argues that the alleged violation was incongruous with the requested relief because the illegality of the subsequent arrest would not preclude the admissibility of evidence seized prior to the illegal arrest. The State is essentially asserting that, when defense counsel made this argument, Appellant was challenging Trooper Johnson’s initial basis for stopping Appellant. We disagree with the State’s very narrow reading of defense counsel’s argument. . . . Finally, we note that a pretrial motion to suppress evidence is ‘nothing more than a specialized objection to the admissibility of that evidence’ that is interlocutory in nature. . . . Accordingly, the State will not be precluded from seeking a reconsideration of the suppression on a more fully developed record upon the remand of this case to the trial court.”

D’s conviction for fraudulent possession of 10 or more but less than 50 items of identifying information was improper because he suffered egregious harm from the inclusion of an unconstitutional mandatory presumption in the jury charge. Ramirez-Memije v. State, No. 14-11-00456-CR (Tex.App.—Houston [14th Dist] May 19, 2015).

        The jury was instructed that D was presumed to have the intent to harm or defraud another if he possessed the identifying information of three or more other persons, under Tex. Penal Code § 32.51(b), but that was an unconstitutional mandatory presumption that effectively eliminated the State’s burden of proof on the presumed fact of D’s mens rea, which was his intent to harm or defraud. D suffered egregious harm because the State’s arguments exacerbated the error, the presumed fact was the primary contested issue at trial, and the evidence was not overwhelming.

Intoxilyzer™ 9000 in Texas

CMI Inc.’s newest Driving While Intoxicated (DWI) conviction machine is coming to Texas: the Intoxilyzer™ 9000 (hereinafter referred to as the “9000”). Texas began breath alcohol testing on a statewide level in 1968 using the Breathalyzer.2 In 1980, Texas began using the Intoxilyzer 4011ASA, and in 1988 the Intoxilyzer 5000 was introduced.3 Currently, the Intoxilyzer

500068 EN (hereinafter referred to as the “5000”) is exclusively used in Texas for forensic breath alcohol testing.4 However, Texas is currently transitioning to the Intoxilyzer 9000 and training breath test operators through local technical supervisors. Implementation of the Intoxilyzer 9000 was scheduled for Summer 2015, but due to software issues and bugs, the 9000 has not been approved for evidential use. While we can only speculate on the actual software that will eventually be approved, much is already known about the Intoxilyzer 9000 from use in other states. Georgia, Colorado, and parts of New York State use the Intoxilyzer 9000 for forensic evidential purposes.

By understanding the information and studies from other states regarding inherent shortcomings, a Texas criminal defense lawyer can prepare to attack the Intoxilyzer 9000 regardless of the final software.5 This article will equip the DWI trial attorney with the science of infrared spectroscopy and an intimate knowledge of the Intoxilyzer 9000 needed to effectively represent clients.

How Breath Contains Alcohol

All humans must breathe to stay alive. Breathing involves the absorption of oxygen from the environment and the elimination of carbon dioxide from the bloodstream.6 We breathe through our mouth or nose and the air is transported by the trachea or windpipe into the lungs.7 In the lungs, the trachea branches into smaller air tubes called bronchi, which continue to branch and eventually terminate in small air sacs called alveoli.8 These alveoli are surrounded by capillaries that are elastic in nature.9 It is in these pulmonary alveoli that blood is able, by diffusion, to release carbon dioxide and absorb oxygen for use throughout the body.10 If alcohol is present in the blood, it will also diffuse across the alveolar membrane into the breath in a fixed proportion to the alveolar blood alcohol concentration and the core body temperature.11

The chemical principle that governs the diffusion of gases between the blood and the breath in the pulmonary alveoli is Henry’s Law.12 Henry’s Law states that the concentration of a material in the gaseous state above a liquid containing the dissolved material will be proportional to the concentration of the material in the liquid state.13 Henry’s Law applies to alcohol vapor (gas) in the lung in contact with blood (liquid) containing alcohol.14 Alcohol continuously diffuses across the one-cell-thick semi-permeable membrane of the capillaries into the air of the lung in proportion to its concentration in the blood.15 Ultimately, if given enough time, the breath alcohol concentration (BrAC) will reach a defined balance with the blood alcohol concentration (BAC) in accordance with Henry’s Law.16 This balance is called equilibrium.17 At equilibrium, the relationship between the concentration of alcohol in the blood and the breath can be described by the blood:breath ethanol partition ratio.18 At 34 degrees Celsius, the alleged average temperature of human breath, this blood:air ethanol partition ratio has been experimentally determined to be approximately 2100:1.19 Theoretically, at 34 degrees Celsius there is the same amount of alcohol in 100 mL of blood as there is in 210 L of air in contact with that blood in a closed container.20 This assumes that the air within the container has had sufficient time to reach equilibrium with the liquid state.21 Thus, it is necessary to try to obtain an air sam­ple from a defendant that has reached sufficient equilibrium between the air in the lungs and the pulmonary blood to satisfy accuracy and reliability.22

Infrared Spectroscopy

Before attacking the specific problems with the Intoxilyzer 9000, a brief overview of Infrared Spectroscopy (IR) is needed. Depending on their atomic and electronic structure, molecules absorb energy (light) of well-defined wavelengths.23 For molecules, the relative intensity of infrared light absorption at different wavelengths functions as a molecular “fingerprint” specific to a given molecule.24 Thus, by evaluating the relative intensity of absorption at specific wavelengths of infrared light, one can spe­cifically identify ethyl alcohol and hopefully differentiate its infrared response from that of other volatile compounds.25 Additionally, by measuring the amount of infrared light absorption at specific wavelengths, one can use a standard differential absorption technique to determine the amount of a given molecule in a sample.26 The Beer-Lambert Law dictates that the quantity of light absorbed will always be proportional to the concentration of the molecule in the solution.27 This is the physical principle the Intoxilyzer 9000 uses to determine the amount of alcohol in a breath sample.28

The Intoxilyzer™ 9000

The heart of the Intoxilyzer 9000 is its optical or analytical bench (see diagram on page following).29 At one end of the bench (left side), an infrared source generates light in the infrared region of the spectrum, which is pulsed through the sample chamber at a defined frequency (10 Hz).30 In the sample chamber, the infrared light is allowed to interact with a breath sample.31 If the breath is alcohol free, the infrared light should pass through the sample chamber freely; however, if alcohol is present, specific frequencies or wavelengths of infrared light will be absorbed.32 At the opposite end of the sample chamber (right side), a lens fo­cuses the energy (light) onto a (light) detector, made up of four crystalline detectors that generate electrical signals proportional to the incident radiation.33 Prior to it reaching the detector, the infrared light is filtered by four single wavelength filters that are integrated into the detector unit.34 Once the light passes through the filter and strikes the detector, the detector generates an electric signal proportional to the amount of light striking it.35 This signal is then transmitted to a processing unit that interprets the electrical signal.36

Functional Schematic of the 5000 (top) and 9000 (bottom— illustrative only).37

Prior to the delivery of a breath sample, the instrument allegedly establishes a zero reference point by measuring the amount of energy (light) striking the detector when the sample chamber is filled with ambient/room air.38 During a breath test, as the amount of alcohol vapor in the sample chamber rises, the amount of infrared energy (light) reaching the detector falls relative to the zero point measurement.39 By determining the difference in the amount of energy (light) striking the detector between the two measurements, the instrument is able to mathematically calculate the breath alcohol concentration in the test sample.40 The instrument then analyzes the relative response at each of the four detectors to confirm the identity of ethyl alcohol to the exclusion of other substances, if possible.41

In summary, the Intoxilyzer 9000 looks for the presence and amount of alcohol in a breath sample.42 It uses infrared light to both identify and quantify ethyl alcohol because ethyl alcohol absorbs infrared light in a unique way.43 The pattern of absorption is used to identify alcohol, and the amount of absorption is used to quantify alcohol in a breath sample.44 The Intoxilyzer 9000 then prints the analytical result in grams of alcohol per 210 liters of breath, as required by Texas law.45

Inherent Problems in the Intoxilyzer 9000

  1. Nonspecificity for Alcohol. The main difference between the Intoxilyzer 5000-EN and 9000 is the ethanol “fingerprint.” Where the 5000 measured the carbon-hydrogen (C-H) bond vibrations in the 3 micron region of ethanol’s molecular fingerprint, the 9000 is measuring the carbon-oxygen (C-O) vibration in the 8–9 micron region.46 The problem exists that other molecules are commonly found in the human body with this same C-O stretching. Specifically, other organic molecules, which can potentially contaminate breath samples, also absorb IR radiation at 9 microns.47 These include other alcohol, esters, and ethers that contain both the methyl group and carbon-oxygen bonds in their molecular structures.48 Dimethyl sulfoxide (DMSO) exhibits IR absorption in both the 3.4 and 9.4 micron regions.49 DMSO is a common solvent for organic compounds and is also used in the treatment of interstitial cystitis (aka painful bladder syndrome) and scleroderma, with rapid absorption occurring through the skin and mucous membranes.50
     Additionally, diethyl ether has been found to produce false ethanol readings at 3.4 and 9.5 microns, the latter over­lapping absorption at 9.4 microns.51 Diethyl ether is widely used as a solvent for waxes, fats, oils, perfumes, alka­loids, and gums.52 Exposure to ether vapor is highly problematic because of its high tissue solubility and its low partition ratio in humans.53 Among the numerous esters that can contaminate breath samples, ethyl formate, methyl butanoate, propyl acetate, and pentyl acetate are noteworthy because they are synthetic flavoring agents that allow many products—including ice cream, soft drinks, candy, and other foods—to taste natural in flavor.54 Furthermore, the GBI cited problems with the lack of sensitivity to compounds other than alcohol when evaluating the 9000.55 The 9000 actually scored the lowest of any competitor on the GBI survey to a list supplied by CMI to rate the specificity/selectivity for ethanol.56 Clearly breath-alcohol analysis via IR at 3.4 and 9.4 microns is not entirely ethanol specific, and any subject’s employment, medical, or eating history can and should be ascertained through appropriate evaluation of the subjects and the compounds.57
     Similarly, acetone may be found on the breath of individuals in a state of ketosis from untreated diabetes, prolonged fast, or a low-carb diet.58 Acetone impairment may resemble alcohol intoxication.59 However, the Intoxilyzer 9000 does not subtract the effect of acetone from the results.60 Texas rec­ognizes the need to evaluate whether acetone testing will need to be a necessary part of official inspection in the future.61
  2. Texas Won’t Produce the Histogram. The 9000 produces a graphical representation of the breath flow, breath volume, blow duration, and breath alcohol concentration for every subject test.62 Georgia and Colorado both produce variations of the histogram/graph. From this graph, the skilled defense attorney or expert witnesses can find answers to critical, potentially exonerating, questions: Was the breath flow continual or spiked? Did the breath sample achieve sufficient slope to be considered a valid test? Was the slope indicative of mouth alcohol? Was the exhalation time sufficient to create a level slope? Likewise, the histogram would reveal what the breath alcohol concentration was at any given point during the exhalation.63 Texas Department of Public Safety (DPS) has chosen not to save or include the histogram next to the sample result.64 Why wouldn’t Texas DPS provide all the information possible? The 9000 is absolutely capable and does produce a histogram with every breath test, but the software determines what is printed.65 In fact, the entire report format of the breath test results is configurable by CMI technical personnel per customer requirements.66
     In an email dated April 28, 2014, from Scott Brown with Texas DPS Tyler to Larry Smith, Regional Manager of North Texas Breath BAL, Mr. Brown states that by providing more information on an Analytical Report/Breath Test slip would just give “most jurors ‘rope and a tree’ with this extra information in a closed jury room.”67 Additionally, Mr. Brown notes that jurors “are not even allowed to have calculators in there. Why would we want them trying to subtract and add tolerances and temperatures without some kind of guidance (i.e., not the defense attorney suggesting they ‘do the Math!’).”68 Furthermore, Mr. Brown does “not like the actual temperatures printed on any of the Reports . . . [O]ur testimony should be ‘within tolerance, or notified otherwise’ . . . It is already confusing enough when we tell a jury that the instruments do not ‘care’ about breath temperature. I believe printed simulator temperature information will cloud the issue even more on the stand.”69 Apparently, Mr. Brown failed to read Fox and Hayward, who found that there is an 8.62% increase in breath-alcohol concentration over blood-alcohol concentration for each degree Centigrade in­crease in core body temperature.70 However, Mr. Brown and DPS have chosen to only include basic information in the Analytical Report/Breath Slip so jurors can’t hang themselves with reasonable doubt.
  3. DPS Refuses to Produce Even More Information. According to the Texas 9000 breath test slip obtained by the author, Texas will also not produce the following information:

    a. the observation period start time;
    b. when the observation period ended;
    c. the last instrument calibration date;
    d. whether the observation period was conducted by a cer­tified Breath Test Operator (BTO);
    e. the last BTO certification date;
    f. if the BTO had the subject remove any foreign material from the mouth cavity;
    g. if the subject was deprived access to foreign material dur­ing the observation period;
    h. that the subject did not belch, regurgitate, or intake any foreign material into the mouth during the observation period; and
    i. the uncertainty measurement for the result.

    All of this information is readily accessible and capable of being produced if Texas wanted it to be.71 The skilled trial lawyer will bring this to the jury’s attention and ask them to demand more open and honest forensic science. If there is nothing to hide, then why not provide all of the information possible?

  4. Four Filters with No Zero Set. The original 5000 used a tungsten filament light source that provided continuous IR and visible radiation to a five-filter chopper/filter wheel that rotated in front of the detector.72 The 9000 uses a grey body infrared light that pulses the energy through the sample chamber to a stationary detector that contains four filters, each for a specific wavelength of IR radiation.73 Where the 5000 had a blank or a zero filter in the wheel, the 9000 does not have a detector for a true zero. Instead, the machine assumes or is programmed to read zero if the filters do not detect other samples besides alcohol.74 Additionally, the Intoxilyzer 9000 “masks” all results less than 0.007 and instead reports it as 0.000.75 How can the machine be sure that it didn’t miss one of the contaminants listed above? If the detector has never been programmed or tested with the contaminants listed above, how can it truly be a zero? The answer is that it assumes that it is a zero. That’s not good enough for forensics.
  5. Common Problems Between the 5000 and 9000. Luckily for the defense attorney, the 9000 still maintains several similar problems that juries have been responsive to (1). Both Colorado and Georgia still use a 20-minute deprivation or observation period.76 Presumably, this is because CMI suggests this, but until CMI publishes its own operator manual, we will not actually know for sure. Texas still only requires a 15-minute waiting period.77 Further, Texas Breath Alcohol Testing Regulations are in the process of being changed to: “An Operator shall remain in the continuous presence of the subject at least 15 minutes immediately before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.”78 And while Texas recognizes that direct observation is not necessary, Texas addresses increased scrutiny of the continuity requirement by stating that “clearly the ‘best practice’ is for the Waiting Period to be conducted entirely at the testing site”79 (2). The CMI warranty is only valid for one year from the date of invoice to the initial purchaser.80 The warranty extends only to the original purchaser and does not include abuse, misuse, cables, switches, or use of the product for other than its intended purpose.81 Additionally, the warranty does not apply if the product is in any way tampered with or modified without express written permission from CMI, Inc.82 CMI sells an extension of the warranty for one year for $125.83 The warranty argument will come into play after the first year from purchase, which should be soon with the delayed implementation in Texas (3). CMI still won’t sell the new source code or COBRA V5 software to the 9000 without a protective order and non-disclosure agreement.84 Any viewing of the source code must be done at CMI and may not be sent outside for independent analysis85 (4). CMI still won’t sell private citizens their machine86 (5). The breath tests must still be within 0.02 of each other87 (6). There is still no ToxTrap requirement or way to save the breath sample for independent testing using gas chromatography (7). For the 9000, although capable of running a dry gas simulator, Texas has chosen a wet bath–compatible option like the 5000 simulator sample.88 As with any preparation of a simulator solution, human error is always a factor.
  6. New 9000 Issues. First, as discussed above, the optical bench is the heart of the 9000. The optical bench is shielded by a metal case that allegedly protects it from ambient electromagnetic radiation.89 However, it also has a radio frequency detection circuit that will still cause it to read radio frequency interference detected if a source is sufficiently strong and in the vicinity during the breath test.90 Why have the antenna and prompt if the optical bench is absolutely protected by the metal case? Second, the new software has so many bugs and issues that the machines have been delayed for implementation until they can be “solved.” Third, the sample chamber in the 9000 is only approximately 6 inches long, where the 5000’s was 10 inches long.91 This is a lot less room and a smaller sample being analyzed; therefore, any mistake will have a conversely larger effect in the measurement. And lastly, regarding the valves that control the source of tested air: The 5000’s three-way mac valve has been replaced by a valve of least resistance in the 9000 that can actually go back and forth.92 Arguably, any valve that can go back and forth could allow contamination in from previous samples, ambient air, or even the simulator solution.
  7. Why Is Texas Still with CMI? In a comprehensive analysis of the Intoxilyzer 9000, the Swedish-made Evidenzer 240 Mobile, and the Datamaster, the Intoxilyzer scored last in the diagnostic criteria where each machine was tested to determine whether it possessed all necessary diagnostic elements to ensure accurate and reliable testing.93 Additionally, the evaluation clearly showed the users ranked the 9000 lowest in the specificity/selectivity of the machine to be completely specific for ethanol.94 Does Texas have some sort of exclusivity contract with CMI? Did Texas conduct its own evaluation against other machines? Can we see that report?

Despite many remaining issues and questions, DPS chose the Intoxilyzer 9000, which will eventually make its way into the hands of Texas breath test operators. It’s not a good sign that the machine already has software issues that delayed implementation. However, the DWI trial attorney must be ready for the inevitable implementation. Like any machine, it is not perfect. It will not behave perfectly. The Intoxilyzer has certain inherent scientific issues that are ripe for cross-examination. Just as the State will always strive to bring out the best in forensic science, we as defense attorneys must always remind the State about the flaws in its method and instrumentation. And we must educate the public and juries about the limitations, unreliability, and inaccuracies in the State’s forensic testing. Only through these checks and balances will the citizens charged with DWI actually receive reliable and accurate forensic chemical testing.


1. Thank you to Frank Sellers and Matthew Malhiot for their editing. Also, thank you to Matthew Malhiot Forensic Alcohol Consulting & Training, LLC, 1353 Riverstone Parkway, Suite 120-382, Canton, GA 30114,, and Rhidian Orr, Galleria Office Towers, 720 S. Colorado Blvd #1110n, Denver, CO 80246,, for their tutelage.

2. See Texas Breath Alcohol Testing Program Operator Manual, p. 4 (2001).

3. Id.

4. See Texas Breath Alcohol Testing Program Operator Manual, p. 10 (2001).

5. The Georgia Bureau of Investigation Division of Forensic Sciences (GBI) Operator Transition Training Manual 2014 Revision; GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000; GBI Intoxilyzer 9000 Georgia Operator’s Transition Training Manual 2013 Revision; Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013.

6. GBI Operator Transition Training Manual 2015 Revision, p. 14.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. GBI Operator Transition Training Manual 2015 Revision, p. 16.

24. Id.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id.

32. Id.

33. GBI Operator Transition Training Manual 2015 Revision, pp. 15 & 16.

34. Id.

35. GBI Operator Transition Training Manual 2015 Revision, p. 16.

36. Id.

37. GBI Operator Transition Training Manual 2015 Revision, p. 15.

38. GBI Operator Transition Training Manual 2015 Revision, p. 16.

39. Id.

40. Id.

41. Id.

42. Id.

43. Id.

44. Id.

45. Texas Penal Code § 49.01(1)(a) (West 2001); GBI Operator Transition Training Manual 2015 Revision, p. 16.

46. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 5; GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 6, 39, and 77 (September 2012).

47. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 92 (2006).

48. Id.

49. Id.

50. Id.

51. See Labianca, Dominick “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 93 (2006).

52. Id.

53. Id.

54. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006) citing Hill JW, Kolb DK, Chemistry for changing times, 10th edition, pp. 262–263 (2004).

55. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 65 (September 2012).Compounds that were analyzed by the 9000 for specificity included acetone, acetaldehyde, methanol, 2-propanol, toluene, ethyl acetate, 2-butanone, 2-butanol, 1-propanol, acetonitrile, methylene chloride, and 2-methyl propanol. Id. at 93.

56. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 64 (September 2012).

57. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006).

58. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 6. Ms. Kubilus stopped replying to my emails after I sent her a copy of her presentation and I asked her for clarification of her research and findings.

59. Id.

60. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 23. See also Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3 (05/2014); email from Heather Greco, Quality Assurance Specialist with Texas DPS to Larry Smith, et al., on May 26, 2014.

61. See Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3 (05/2014); email from Heather Greco, Quality Assurance Specialist with Texas DPS to Larry Smith, et al., on May 26, 2014.

62. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 22; GBI Operator Transition Training Manual 2015 Revision, p. 35.

63. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, pp. 22–23; GBI Operator Transition Training Manual 2015 Revision, p. 40.

64. See attached Texas Intoxilyzer 9000 breath test slip versus Colorado breath slip.

65. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 54 and 56 (September 2012).

66. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 54 (September 2012).

67. See email dates Monday, April 28, 2014, 1:48 pm, Subject: FW, Attachments: Brown AB Comments on Analytical Report.

68. Id.

69. Id.

70. See Fox, Glyn R., and Hayward, John S., “Effect of Hyperthermia on Breath-Alcohol Analysis,” Journal of Forensic Sciences, Vol. 34, No. 4, pp. 836–841, July 1989.

71. See Colorado Intoxilyzer 9000 slip; GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision; Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013.

72. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, pp. 5–6.

73. Id.

74. GBI Operator Transition Training Manual 2015 Revision, p. 16.

75. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 10.

76. Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013, p. 4; GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 9.

77. See Texas Administrative Code, Title 37, Part 1, Chapter 19, Subchapter A, Rule 19.3(a)(1). Training Schedule PowerPoint by James Tedder, Deputy Scientific Director, Breath Alcohol Laboratory, Texas DPS emailed on July 7, 2014, to Alvin Finkley, et al., Subject: 9000 Supplemental Power Point, slides 10–13, 15–17.

78. See An Overview of the Training and Implementation of the Intoxilyzer 9000, pp. 3 and 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014.

79. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 7; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014. See also Texas Depart of Public Safety Interoffice Memorandum from Randall Beaty, Deputy Scientific Director to Luis Gonzalez, Assistant Director THP on February 24, 2014.

80. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 73 (September 2012).

81. Id.

82. Id.

83. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 80 (September 2012).

84. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 55, 76, and 80 (September 2012).

85. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 55 (September 2012).

86. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 70 (September 2012). Although no written policy exists on who can purchase or receive training, this author was denied the ability to purchase a machine when he submitted a request as a private citizen and not an attorney.

87. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014.

88. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 5.

89. GBI Operator Transition Training Manual 2015 Revision, p. 42.

90. Id.

91. CMI Manual, also according to Mathew Malhiot..

92. CMI Manual, also accoridng to Mathew Malhiot.

93. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 11–12 (September 2012).

94. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 64–65 (September 2012).

Jeopardy Should Attach to an Acquittal in the Court of Appeal

The Double Jeopardy Clause of the United States Constitution provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .” U.S. Const. Amend. V. “There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense af­ter acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). All three types of jeopardy claims arise only when duplicative prosecutions or punishments involve the same offense. Id. The dismissal or abandonment of a criminal charge after jeopardy attaches has the same constitutional significance as an acquittal. Lewis v. State, 889 S.W.2d 403, 406 (Tex. App.—Austin 1994, pet. ref’d) (citing Black v. State, 143 Tex. Crim. 318, 158 S.W.2d 795, 796 (Tex. Crim. App. 1942)). A criminal accusation that is dismissed, waived, or abandoned after the defendant is placed in jeopardy may not be retried. Ex Parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992). The Double Jeopardy Clause guarantees a person, having once been acquitted, need never run the gauntlet again. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

An Acquittal Is an Acquittal

An acquittal is an acquittal, whatever the forum.1 The Court of Criminal Appeals concluded in Stephens v. State, 806 S.W.2d 812, 819 (Tex. Crim. App. 1990), “[W]e hold that when a defendant has obtained a reversal of a conviction for a greater offense solely on the ground that there was insufficient evidence to prove the aggravating element of that offense, the Double Jeopardy Clause bars a subsequent prosecution for a lesser included offense.”

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that the Sixth Circuit Court of Appeals, an intermediate appellate court, erred when it found the evidence in­sufficient and reversed and remanded to the trial court. When the evidence is found insufficient on appeal, the appellate court must reverse and reform to show a judgment of acquittal. “[W]e are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.” Id. at 5. That language means any reviewing court, intermediate or otherwise. The Court then went on to succinctly set out the Petitioner’s argument:

Petitioner’s argument is straightforward. He contends that the Court of Appeals’ holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court’s judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order.

Id. at 5–6 [emphasis in original].

After an extensive review of prior case law, the Supreme Court determined, “Since we necessarily afford absolute finality to a jury’s verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” Id. at 16 [emphasis in original]. The Supreme Court concluded: “Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.” Id. at 18; accord, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Relying heavily on Burks,2 Evans v. Michigan, ___ U.S.___, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013), reversed the Michigan Supreme Court: “In the end, this case follows those that have come before it. The trial court’s judgment of acquittal resolved the question of Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on unrelated procedural grounds. That judgment, ‘however erroneous’ it was, precludes reprosecution on this charge, and so should have barred the State’s appeal as well.Id. at 1078 [emphasis added]. See also Martinez v. Illinois, __ U.S. __, 134 S.Ct. 2070, 188 L.Ed.2d 1112 (2014).

United States v. Scott, 437 U.S. 82, 90, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), illustrates an acquittal by any legitimate forum is an acquittal:

[I]n Fong Foo v. United States, 369 U.S. 141 (1962), this Court reviewed the issuance of a writ of mandamus by the Court of Appeals for the First Circuit instructing a District Court to vacate certain judgments of acquittal. Although indicating its agreement with the Court of Appeals that the judgments had been entered erroneously, this Court nonetheless held that a second trial was barred by the Double Jeopardy Clause. Id. at 143. Only last Term, this Court relied upon these precedents in United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), and held that the Government could not appeal the granting of a motion to acquit pursuant to Fed. Rule Crim. Proc. 29 where a second trial would be required upon remand. The Court, quoting language in Ball, supra, at 671, stated: “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’”

An Intermediate Court of Appeals Is a Higher Court than a District Court or County Court at Law

There is no question that when a trial court grants a defense motion for a directed verdict based on a determination the evidence was insufficient to prove beyond a reasonable doubt the accused committed the offense alleged, the State is barred from appealing and any further prosecution for the offense. See generally, State v. Moreno, 294 S.W.3d 594 (Tex. Crim. App. 2009). “When a trial ends in an acquittal, one of the ‘most fundamental rule[s] in the history of double jeopardy jurisprudence’ is that a defendant cannot be tried again for that same offense.” Id. at 597–598. See also State v. Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App. 2011) (“Whether the acquittal is ‘based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict,’ any further prosecution, including an appeal by the prosecution that would lead to a second trial, is prohibited. Even where an acquittal is based on an ‘egregiously erroneous foundation,’ such as erroneous exclusion of evidence or erroneous weighing of evidence, the acquittal bars appellate review of the ultimate disposition as well as the underlying foundation.”)

State v. Moreno, supra, 294 S.W.3d at 600, makes plain what jeopardy bars is no further prosecution, whether it is a new trial, resentencing, or any other manner of prosecution:

The problem with the State’s argument, as a matter of federal law, is that it has been presented and rejected nu­mer­ous times in the federal courts, and the answer is now con­trolled by well-established precedent. The facts of this case are strikingly similar to the seminal case of Fong Foo v. United States. In that case, the district judge directed a verdict of acquittal before the Government finished presenting its evidence because of a supposed lack of witness credibility and prosecutorial misconduct. The First Circuit Court of Appeals held that the judge did not have authority to enter a verdict before the Government rested its case. The Supreme Court recognized that the judge’s actions were “egregiously erroneous,” but nevertheless held that the Double Jeopardy Clause prohibited the court of appeals from setting aside the verdict of acquittal and subjecting the defendant to another trial. Numerous cases after Fong Foo reinforced the principle that the Double Jeopardy Clause bars further prosecution, including prosecution-initiated appellate review, even if the acquittal resulted from patent judicial error. For example, in Sanabria v. United States, the trial judge excluded certain evidence as irrelevant and then held that the remaining evidence was insufficient. The Supreme Court held that the acquittal for insufficient evidence could not be appealed, even though it resulted from an erroneous evidentiary ruling. In both Fong Foo and Moreno’s case, the judge entered a verdict of acquittal before the State rested its case. We understand that the judge here was exasperated with the delays, but when a key witness, for either side, is right outside the doors, ready to testify, it is unacceptable and inexcusable not to allow his or her testimony. But the case law is clear that even erroneous acquittals bar further prosecution.

Id. [emphasis added].

Burks confirmed an appellate acquittal by a higher, yet intermediate, court must be accorded no less deference. “It is unquestionably true that the Court of Appeals’ decision ‘[represented] a resolution, correct or not, of some or all of the factual elements of the offense charged.’ United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). By deciding the Government had failed to come forward with sufficient proof of petitioner’s capacity to be responsible for criminal acts, that court was clearly saying that Burks’ criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered, and, of course, petitioner could not be retried for the same offense. See Fong Foo v. United States, 369 U.S. 141 (1962); Kepner v. United States, 195 U.S. 100 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U.S., at 374. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal.” Id. at 10–11 [footnote omitted].

Factual Conclusivity Clause

Art. V, § 6(a), Texas Constitution, mandates decisions of the courts of appeals “shall be conclusive on all questions of facts brought before them on appeal or error.” See also Sanabria v. United States, 437 U.S. 54, 71, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (“We have recently defined an acquittal as ‘a resolution, correct or not, of some or all of the factual elements of the offense charged’” [emphasis added]). Despite the abandonment of factual sufficiency review in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the Factual Conclusivity Clause must still have some meaning. And while it is axiomatic appellate courts do not engage in credibility assessments, the Court of Criminal Appeals has recognized an appellate court must, at times, determine whether a jury’s reliance upon certain evidence is rational. See Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007) (“The requirement that the evidence must rationally support a jury finding before a defensive instruction is required serves to preserve the integrity of the jury as the factfinder by ensuring that it is instructed as to a defense only when, given the evidence, that defense is a rational alternative to the defendant’s criminal liability. If a jury were instructed as to a defense even though the evidence did not rationally support it, then the instruction would constitute an invitation to the jury to return a verdict based on speculation.”) There is a fine line between making a credibility assessment and assessing whether a factfinder’s reliance on certain evidence was rational, but it is a line that must be drawn. And when that line is drawn by a court of competent jurisdiction at any level, and results in an acquittal no matter how erroneous, the acquittal must be honored.

The court in State v. Stanley, 201 S.W.3d 754, 760 (Tex. Crim. App. 2006), stated as follows:

[T]he Supreme Court has prescribed and “consistently used” a definition of “acquittal” that the trial court’s order in this case does not satisfy. According to that definition, “a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’” This Court has similarly observed, in Ex parte George [913 S.W.2d 523, 527 (Tex. Crim. App. 1995)], that while no statutory provision explicitly defines the word “acquittal,” “the context in which it appears throughout the Code of Criminal Procedure creates a powerful inference that it means a finding of fact that the accused is not guilty of the criminal offense with which he is charged.”



The Supreme Court decision in Evans v. Michigan, supra, recognized the law “attaches particular significance to an acquittal” and mandates the acquittal be honored whatever the circumstances:

Both procedural dismissals and substantive rulings result in an early end to trial, but we explained in Scott [437 U.S. 82 (1978)] that the double jeopardy consequences of each differ. “[T]he law attaches particular significance to an acquittal,” so a merits-related ruling concludes proceedings absolutely. Id., at 91, 98 S.Ct. 2187, 57 L.Ed.2d 65. This is because “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty,’” ibid. (quoting Green v. United States, 355 U. S. 184, 188[] (1957)). And retrial following an acquittal would upset a defendant’s expectation of repose, for it would subject him to additional “embarrassment, expense and ordeal” while “compelling him to live in a continuing state of anxiety and insecurity.” Id. at 187[].

Ex Parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013), proclaimed, “Because of the fundamental nature of the double-jeopardy protections, a double-jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: 1) the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record; and 2) when enforcement of the usual rules of procedural default serves no legitimate state interest.” The principle that retroactive effect must be given to decisions that implement fundamental notions of fairness embodied in the concept of due process is certainly broad enough to include the fundamental nature of the guarantee against double jeopardy. Ex Parte Reynolds, 588 S.W.2d 900 (Tex. Crim. App. 1979); Ex Parte Mixon, 583 S.W.2d 378 (Tex. Crim. App. 1979).

There is a school of thought that takes the following contrary position: In federal court the government has a right to appeal a trial court’s judgment of acquittal that overturns the jury’s guilty verdict; therefore the same should apply to an appellate acquittal, particularly by an intermediate appellate court. That position is based on a flawed premise.

Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), held the Double Jeopardy Clause did not permit the trial judge to reconsider the initial ruling in favor of the accused on his motion for a required finding of not guilty, once the accused and his codefendant had rested their cases. “[W]e have long held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict.” Id. at 467. The Supreme Court, however, went on in dicta to make the following troublesome observation:

Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty. United States v. Wilson, 420 U.S. 332, 352–353, 43 L.Ed.2d 232, 95 S.Ct. 1013 (1975).


In United States v. Wilson, supra, nonetheless, decided prior to Burks, a jury had returned a verdict of guilty in defendant’s trial for converting union funds to his own use. The district court, on a post-verdict motion, dismissed the indictment on the ground the delay between the offense and indictment had prejudiced the defendant. The Government’s appeal was dismissed by the Third Circuit on grounds that (1) since the District Court had relied on facts brought out at the trial in finding prejudice from the pre-indictment delay, its ruling was in effect an acquittal; and (2) under the Double Jeopardy Clause of the Fifth Amendment the Government could not constitutionally appeal the acquittal, even though it was rendered by the judge after the jury had returned a verdict of guilty. The Supreme Court held jeopardy did not bar the Government’s appeal from the district court’s post-verdict dismissal of the indictment due to delay. Wilson simply did not involve a finding of insufficient evidence.

Monge v. California, 524 U.S. 721, 729, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), held: “We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. See Burks v. United States, 437 U.S. 1, 16, 57 L.Ed.2d 1, 98 S.Ct. 2141 (1978).” Greene v. Massey, supra, reaffirmed Burks and held the Double Jeopardy Clause precluded a second trial once a reviewing court determined the evidence introduced at trial was insufficient to sustain a conviction. There is no judgment non obstante veredicto in Texas criminal jurisprudence. State v. Savage, 933 S.W.2d 497, 498–499 (Tex. Crim. App. 1986). Accordingly, Smith v. Massachusetts’ dicta does not in any manner lessen the viability of the position jeopardy attaches when an intermediate court of appeals acquits.

Should you receive one of those rare acquittals in the court of appeals and the State files a petition for discretionary review, my advice is to file a plea in bar based on the foregoing, and then file your reply subject to that plea in bar. We should continue raising this issue until it is fully recognized that an acquittal is, indeed, an acquittal.

CAVEAT (or, in the interest of full disclosure): This article involves the continuing saga of Bowen v. State, 322 S.W.3d 435 (Tex. App.—Eastland 2010, pet. granted) (Bowen 1); reversed by Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) (Bowen 2); and relies in large part on one of the arguments set out in the pending appeal to the court of appeals in Bowen v. State, No. 11-13-00114-CR, 11th Court of Appeals, Eastland, Texas. An extended oral argument is set for January 8, 2015. In the meantime, Gaddy v. State, 433 S.W.3d 128 (Tex. App.—Fort Worth 2014, pet. ref’d), on remand from the Court of Criminal Appeals and relying on Bowen 2, held its previous appellate acquittal of Gaddy of felony DWI because the State failed to prove one of the two prior jurisdictional DWIs alleged, did not bar reformation of the judgment to reflect conviction of a misdemeanor DWI. The Appellant’s PDR was refused on August 27, 2014. The Court of Criminal Appeals must eventually, in my opinion, settle this issue. Gaddy is not the final word, particularly in view of the fact the two prior DWI allegations in a felony DWI indictment are jurisdictional.


1. United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896): “As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence” [citations omitted]. See also, Evans v. Michigan, ___U.S.___, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013), with the following: “We granted certiorari to resolve the disagreement among state and federal courts on the question whether retrial is barred when a trial court grants an acquittal because the prosecution had failed to prove an ‘element’ of the offense that, in actuality, it did not have to prove . . . [citation omitted] We now reverse . . . In answering this question, we do not write on a clean slate . . . It has been half a century since we first recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’ Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam). A mistaken acquittal is an acquittal nonetheless, and we have long held that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).” Id.

2. “Most relevant here, our cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense [citations omitted]. Burks v. United States, 437 U.S. 1, 10, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) [citation omitted]. Thus an ‘acquittal’ includes ‘a ruling by the court that the evidence is insufficient to convict,’ a ‘factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,’ and any other ‘rulin[g] which relate[s] to the ultimate question of guilt or innocence.’” Evans v. Michigan, supra, 133 S.Ct. at 1074–1075.

“Perhaps most inconsistent with the State’s and United States’ argument is Burks. There we held that when a defendant raises insanity as a defense, and a court decides the ‘Government ha[s] failed to come forward with sufficient proof of [the defendant’s] capacity to be responsible for criminal acts,’ the defendant has been acquitted because the court decided that ‘criminal culpability ha[s] not been established.’ 437 U.S., at 10, 98 S.Ct. 2141, 57 L.Ed.2d 1. Lack of insanity was not an ‘element’ of Burks’ offense, bank robbery by use of a dangerous weapon [citation omitted]. Rather, insanity was an affirmative defense to criminal liability. Our conclusion thus depended upon equating a judicial acquittal with an order finding insufficient evidence of culpability, not insufficient evidence of any particular element of the offense.” Evans v. Michigan, supra, 133 S.Ct. at 1078.

3. Cf., Benavidez v. State, 323 S.W.3d 179, 183 fn. 19 (Tex. Crim. App. 2010): “We have never required a cross-petition from an appellant to justify remanding the cause to the intermediate appellate court to address any extant, as-yet-unaddressed claims of trial error. Because of the jeopardy consequences of an appellate acquittal, it is even more ‘necessary to final disposition of the appeal’ that, when a court of appeals erroneously concludes that there is trial error in a case, but has not yet addressed a claim of legal sufficiency, we remand the case to that court for consideration of that still-pending issue.”

Joining the Military with a Juvenile Record

A question often asked by younger clients is whether they will be able to join the military with a juvenile record. Specifically, they want to know how a juvenile record will affect their chances of enlisting and if they should disclose their record when they try to enlist. The answer is—it depends. It depends on the type of offense and the disposition of the case. It also depends on whether the records were sealed, the likelihood of getting a military waiver, and what the applicant discloses during the enlistment process. Clearly, many of the children in the juvenile justice system have made some poor choices. As they get older, some begin thinking about the military as a way to improve their life, but a juvenile record may lead the military to conclude that a person is not morally fit to serve. All of this should be considered when representing a juvenile client and deciding how to proceed with his or her case. There are certain steps that the client and attorney can take while navigating the juvenile justice system to keep the military option open.

Cases in juvenile court move quickly through the process compared to adult cases, which typically take much longer to resolve. Generally, a petition is filed in juvenile court, and the entire case is disposed of in a matter of weeks. In the event that services are needed by the child and family, the court and probation department want to get them started as quickly as possible. Oftentimes, because these cases are resolved so quickly, juveniles remain oblivious to the long-term impact of their plea agreements. Very few realize how adjudications for delinquent conduct can hinder their future.

The main focus of the juvenile system is treatment and rehabilitation and not necessarily the long-term impact of the legal case. If a child is in detention awaiting resolution of the case, a week is an eternity. He or she wants to have the case disposed of quickly so they can go home. Children focus on short-term payoffs and are less able to comprehend long-term consequences. Due to this inability to anticipate the long-term impact of their decisions, juveniles may require a heightened standard of representation that includes honest and clear communication about how their legal case may affect their future.1

One way a child’s future can be negatively impacted is by not being able to join the armed forces. For many of our youth, joining the military is a ticket to a better life. The military provides an opportunity for employment, a steady income, health insurance, education, and, maybe more importantly, a sense of purpose and pride.

The military requires its servicemembers to be morally fit, and a juvenile record may lead the military to conclude otherwise. Juveniles should be made aware of how certain plea agreements may hinder their future plans so they can take this into consideration when making decisions about their case. It is important that our younger clients fully understand the long-term collateral impact of their legal case. The attorney should establish early on if the juvenile has an interest in joining the military. This information may affect negotiations with the state and the way the attorney and juvenile proceed and finally dispose of the case.

It is becoming increasingly difficult to join the military with a juvenile record. According to one Army recruiter, recruitment standards are stricter today than they were a few years ago. This is partly due to the pullout from Iraq and drawing down of forces in Afghanistan. Today, a drug-related charge can render someone unfit for the Army. Offenses ranging from multiple minor traffic citations to felonies can be problematic. Offenses involving serious aggression or a weapon can automatically dis­qualify someone from enlisting. Domestic violence cases will raise red flags, and almost certainly any type of sexually re­lated offense will disqualify a person from every branch of the armed forces—even if the case was disposed of with some kind of diversion program.2 Recruiters focus on the type of offense and whether there was any kind of “adverse adjudication” associated with the charges. Adverse adjudication includes any conviction, finding, decision, sentence, judgement, or disposition other than unconditionally dropped, unconditionally dismissed, or acquitted. Participation in a pretrial diversion program is considered an adverse adjudication.3

In recent years, society has become less tolerant of behaviors that were once dealt with informally and not through the legal system. At one time, calling the parent was a greater threat than calling the police. Today, for example, schoolyard fights are no longer resolved by the school, the child, and the families. These incidents are frequently reported to the police. In many instances, a fight at school results in assault charges being filed. At home, siblings may get into a fight and someone calls 911. It is likely that one of them will be taken into custody and charged with domestic violence. Disposing of these cases quickly in order to provide individual treatment and/or family counseling may not be in the client’s long-term interest, particularly if he or she has expressed an interest in the military. Knowing this, clients and their attorneys may need to slow the process down and care­fully consider all options in determining how to proceed with the case.

A juvenile record will not necessarily disqualify a person from enlisting. The military can choose to waive certain offenses. These waivers are generally reviewed by officials higher up in the chain of command. If someone does not qualify due to past delinquent conduct, he or she may request a waiver for the specific offense that renders them unqualified. The waiver procedure is not automatic, and approval is based on each individual case. A waiver involves an application process whereby the applicant is requesting that a particular branch of the military make an exception in his or her case. The burden is on the applicant to demonstrate that the waiver will benefit the military regardless of his or her past. Waiver authorities will consider the “whole person” concept when reviewing applications. In processing waiver requests, the military considers the “who, what, when, where, and why” of the offense in question.4 If past delinquent conduct is disclosed to the recruiter, having had the record sealed may increase the chances of receiving a waiver because it shows rehabilitation efforts on the part of the applicant. However, depending on the offense and the circumstances, it could also permanently disqualify the person from enlisting. The standards for waivers can be complex and are different for each branch of the military. The standards also change depending on world events and the need to expand or decrease the size of the armed forces. Currently, fewer waivers are being approved, in part due to the downsizing of the military.5

If the juvenile has expressed any interest in joining the military, it is imperative that his or her records are sealed. The general rule in Texas is that a child’s records and files are confidential and may not be shared unless specifically authorized by law. Many younger clients wrongly believe their records will be automatically sealed at a certain age with no effort on their part. Texas does allow for automatic restriction to certain records, which means that the records can be accessed by fewer entities than could access them if there were simply confidential, but these restricted records are not sealed and remain in place.6 Giv­ing clients some insight into the actual process of how and where their juvenile records are generated and stored may drive home the importance of sealing.

In Texas, information regarding a juvenile’s delinquent conduct is entered into the Juvenile Justice Information System (JJIS). The JJIS is a computerized database maintained by the Texas Department of Public Safety and is the point of entry for juvenile justice information into the FBI Interstate Identification Index (III), a database that stores criminal history record information. JJIS maintains only information relating to delinquent conduct that if committed by an adult would constitute a criminal offense of class B misdemeanor or higher.7 These records include but are not limited to biographical data, fingerprints, referral history (including the level and degree of the alleged offense), specific information regarding the adjudication and disposition, and a description of each appellate pro­ceeding.8 The information in JJIS is not public but may be accessed by certain agencies identified by statute. Information can be disseminated to military personnel with permission of the juvenile.9 DPS may also release information to the military that is restricted with written permission of the juvenile who is applying for enlistment.10 The information in the JJIS is subject to sealing. Once DPS receives a sealing order, all information is completely removed from the criminal history database. DPS will then send an electronic message to the FBI to have the ju­ve­nile’s information removed from the Interstate Identification Index system. DPS will also follow up by sending the FBI a copy of the sealing order. Subsequently, if the military requests records that have been sealed, they will receive notice that no records exist.11

Military recruiters can also access juvenile records maintained by Texas Juvenile Justice Division, the probation department, clerk of the court, prosecutor’s office, and law enforcement agency so long as they have permission of the subject of the rec­ords and in the same manner as those entities can release non-restricted records.12 This is how the process works in Texas, however; sealing statutes and provisions differ for every state.

Being familiar with the enlistment process and giving the client a preview of some tough questions they will be asked regarding any involvement with the juvenile justice system may also give the client a better understanding of the importance of having their records sealed.

For purposes of enlistment, the applicant is required to list all offenses for which he or she was arrested, charged, summoned, cited, or ticketed. One of the questions on the Army Enlistment Security Questionnaire specifically asks, “Have you ever been told by anyone (judge, lawyer, any army personnel, family, friends, etc.) that you do not have to list a charge because the charge(s) were dropped, dismissed, not filed, expunged, stricken from the record or were juvenile related?”13 As part of the enlistment process, recruiters will routinely run fingerprints through the FBI database to find out if the applicant has a criminal history and also do sex offender checks on every applicant. If the applicant has a juvenile record that has not been sealed or expunged, the recruiter will receive a rap sheet containing the person’s complete criminal history. One recruiter I spoke to insisted that disclosure of the offense(s) from the very beginning, whether sealed or expunged, is the better route to take. Another recruiter referred to this as “a grey area” but recommended being truthful—“violating the circle of trust can be more damaging in the long run.”14 To be clear, if the person discloses any delinquent conduct, or the recruiter finds criminal activity from the records search, the enlistment process is put on hold and the recruiter must begin to gather information regarding the offense(s). The military will fully investigate an offense if there was any type of adverse adjudication.

If the applicant admits to an offense, or the recruiter has reason to believe the applicant is concealing an offense, or if criminal activity is discovered when a background check is run, the recruiter will request information from local law enforcement agencies. The recruiter will also ask the applicant for a re­lease of records. If the applicant does not disclose any delinquent conduct and the offense(s) do not show up during the back­ground check, then the enlistment process continues up the channel to Military Entrance Processing Station (MEPS) for a battery of testing and final interview(s). MEPS is a Department of Defense joint-service organization staffed with military and civilian personnel. It determines the applicant’s physical qualifications, aptitude, and moral standards as set by each branch of military service.15 If the applicant failed to mention delinquent conduct to the recruiter at the initial interview and it is disclosed or revealed during the MEPS interview, the process will be suspended. Every situation is different and will be dealt with accordingly. Generally, the applicant will be routed back to the recruiter for investigation and fact gathering. Depending on the offense(s) and the circumstances, a waiver may be re­quested. However, at this point, according to one recruiter, the applicant’s trustworthiness has been compromised.

The general consensus of the recruiters I spoke to was to disclose delinquent conduct and pursue a waiver. Fraudulent enlistment can result in a discharge from the military and being barred from ever enlisting again. On the other hand, given the stricter recruitment guidelines, disclosing previous criminal activity could reduce one’s chances of enlisting. Keep in mind, recruiters want people to qualify. “They are not out on a witch hunt,” as one recruiter put it. No one wants an applicant to get into the military any more than the recruiter. Their job is to get people in and not keep them out. If the person chooses not to disclose past delinquent conduct, he or she must be absolutely certain that all records have been sealed and be prepared to answer some pretty tough questions by military personnel. As a side note, according to one Army recruiter, medical history will not be investigated unless disclosed, and certain tattoos can be a disqualifier.16

There is no clear answer to the question of whether the cli­ent will be able to join the military if he or she has a juvenile record. However, it is important that the attorney try and establish early on what the client’s future goals are, and the client should be made aware of the potential collateral impact of his or her legal case. If the client is serious about joining the military, the attorney must keep this in mind throughout the process while pursuing the best possible result. Charges that may automatically disqualify a person from the military should be diligently negotiated with the prosecutor. Plea agreements must be carefully explained to the client and the case must be litigated vigorously if necessary. Clients should understand the importance of sealing their records, and an explanation of that process will be helpful. If there was involvement with the juvenile justice system in another state, those records must also be sealed. By zealously advocating for our juvenile clients to mitigate the impact of their involvement with the juvenile justice system, we enable them to pursue a military career with more confidence.


1. Riya Saha Shah and Lisa S. Campbell, “Ineffective Assistance and Drastic Punishments: The Duty to Inform Juveniles of Collateral Consequences in a Post-Padilla Court,” Duke Forum for Law and Social Change, Vol. 3, 164, 173, 174, 182 (2011), available at

2. Army recruiter (March 13, 2015), personal interview.

3. Rod Powers, U.S. Military Expert, “U.S. Military Enlistment Standards.” (© 2015),

4. Rod Powers, U.S. Military Expert, “Military Criminal History (Moral) Waivers.” (© 2015),

5. Rod Powers, U.S. Military Expert, “Joining the U.S. Military Is Getting Harder” (© 2105),

6. Tex. Family Code § 58.201–211.

7. Kaci Sohrt, “Ethics: Restricted Access and Sealing of Juvenile Records in Texas,” Nuts and Bolts of Juvenile Law 9 (2014), available at

8. Tex. Family Code § 58.104.

9. Tex. Family Code § 58.106(a)(1).

10. Tex. Family Code § 58.204(b)(3).

11. Kendall A. at DPS (March 17, 2015), email interview.

12. Tex. Family Code § 58.207(c).

13. Enlistment Security Questionnaire, Moral Screening Criteria, 14 (2015).

14. Army Recruiter (March 13, 2015), personal interview.

15. “Your Visit to MEPS,” U.S. Army–Army Strong® (n.d.),

16. Army Recruiter (March 16, 2015), personal interview.

July/August 2015 Complete Issue – PDF Download



20 | Pictures from the Fourth of July Readings  – By Robb Fickman
24 | Intoxilyzer™ 9000 in Texas – By Mark Ryan Thiessen
31 | Jeopardy Should Attach to an Acquittal in the Court of Appeal – By Stan Brown
36 | Joining the Military with a Juvenile Record – By Betty E. Rodriguez

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

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

President’s Message: Not Without a Fight – By Samuel E. Bassett


As I write this, we are bumping up against July 4, 2015, Independence Day. The Rusty Duncan Seminar is one week past and I’m settling into a new routine of my temporary role as President of this fine organization. This past week has been an historic one for our country as well—the Supreme Court has issued rulings on landmark issues including fair housing discrimination, same sex marriage, and the Affordable Care Act. I also witnessed our President eulogize one of the nine persons slain in a Charleston Church during a Bible study by a young man with apparent racist motivations.

Whatever your position on issues mentioned, I think you’ll agree that the pivot point for much of the change was our judicial branch. As a country, we committed to the principle that the majority should not control the limitations on individual freedom. On racial issues, it is remarkable to see how much our judicial branch has evolved in a relatively short period of time. In my lifetime, it was once constitutional for states to prohibit interracial marriage. In my lifetime, it was considered constitutional to have separate but equal as a doctrine for public policy. In the year of my birth (1963) Dr. King delivered his iconic “I Have a Dream” speech. A year later, President Johnson signed the Civil Rights Act. Yet, even as change was officially made law, there was resistance, particularly in the South. It took multiple court decisions to give these ideals teeth so that the policies of racial divide would be weakened. The process continues to this day.

Why do I bring up these issues? I see criminal justice in Texas evolving as well, both in our courts and in our legislative and executive branch. Criminal justice issues are often a front burner issue for politicians, but it is happening. In Texas, the past two legislative sessions have ushered in change into the criminal justice process. Forensic science is now under consistent legislative and judicial scrutiny. Junk science has been, at least partially, exposed and is no longer admissible in criminal prosecutions. Defendants have more access to discovery to prepare their cases for trial than ever before. Funding for training capital attorneys has never been higher. TCDLA and the Criminal Defense Lawyers Project are at the forefront of these changes. Past President Bobby Mims personally fought for the Michael Morton Act during the 2013 legislative session, burning many hours in the tunnels of the Legislature in Austin. This past session, our lobbyists Allen Place and Patricia Cummings (along with their team) worked hard to ensure that the Morton Act would not be altered.

The motivating fuel for these reforms is the recent exposure of repeated mistakes, abuses, and travesties within the Texas criminal justice system. Our state leads the nation in exonerations for wrongfully convicted citizens. One only can wonder how many more innocent persons are inside our Texas prisons. The blatant violation of Brady by some prosecutors is finally being taken seriously. There is new legislation regarding access to DNA testing by those seeking a review of their convictions. We have to keep pushing. Apathy is the enemy of successful re­form. Encourage young lawyers to become active in TCDLA and provide us with a continuing stream of energy to keep working for a more just system in Texas. These fights are at the heart of our Independence as a state and as a nation.

Executive Director’s Perspective: Sad News – By Joseph A. Martinez


With a heavy heart, I want to let our members know that Mr. Charles Butts (San Antonio), our 17th president (1987–1988), passed away in San Antonio on July 23, 2015. Mr. Butts contributed so much to the success of TCDLA. We are a strong committed association today because of his love and dedication to TCDLA and its mission. We ask you to keep him and his family in your thoughts and prayers.

The TCDLA Annual Meeting was held on June 20, 2015, in San Antonio. The following motions were voted on by the TCDLA membership:

MOTION: Minutes—March 7, 2015

Motion to adopt the minutes from the TCDLA Board Meeting on March 7, 2015, in Houston made by Ray Rodriguez, seconded by Stephanie Patten—motion carries.

MOTION: Board Electronic Votes

Motion to approve electronic votes for recipients of:

• Hall of Fame: Michael Heiskell, Michael Gibson, and Jeff Kearney
• Percy Foreman Lawyer of the Year: Daniel Hurley and Heather Barbieri
• Charlie Butts Pro Bono Lawyer of the Year: Cynthia Orr and Mark Bennett

Made by Ron Goranson, seconded by Frank Sellers—motion carries.

MOTION: Bylaws Sec. 2. Nominations Committee

Prior to January 31st of each year, the President-Elect shall appoint a Nominations Committee consisting of one member from each of the Association’s membership areas and all officers. Each member shall be an attorney who is a current member of TCDLA and has a minimum of five years of practice in criminal law. Past presidents may be appointed to the committee but shall be non-voting members. The chair of the Nominations Committee shall be designated by the President. The Nominations Committee shall meet, and the members present shall select its nominee(s) for those positions in the Association which are open for election or reelection. The chair of the Nominations Committee shall report in writing on or before 90 days prior to the next annual meeting all said nominee(s) for each such position to the President, the Board of Directors, the Executive Director, and the editor of the Voice for the Defense magazine. Association members shall be given notice in writing of the nominee(s) for each such elective position on or before 75 days prior to the next annual meeting. Such notice may be by publication in Voice for the Defense and shall also advise the membership that any qualified member in good standing may seek election for the position as an officer, other than President, director, or associate director of the Association by following requisites of Article IX Section 3(b) of the Bylaws. Any disputed questions regarding an election shall be resolved by those members in good standing who are present and voting at the annual meeting.

Made by Susan Anderson, seconded by Carole Powell—motion carries.

MOTION to approve the slate of nominations for 2015– 2016 officers below and the new and renewing directors and associate directors, made by Sam Bassett, seconded by David Moore—motion carries.

        Slate of Officers:
        Sam Bassett, President
        John Convery, President-Elect
        David Moore, 1st Vice President
        Mark Snodgrass, 2nd Vice President
        Kerri Anderson-Donica, Treasurer
        Grant Scheiner, Secretary

Motion carries.

Special thanks to Sheldon Weisfeld (Brownsville), Bobby Lerma (Brownsville), Kelly Pace, and Jani Maselli, our course directors for the seminar held on beautiful South Padre Island in July. Thanks to them and our outstanding lineup of speakers, we had the largest attendance ever.

Special thanks to our course directors, Jani Maselli (Houston) and Rick Wardroup (Lubbock), for our Training the Trainers seminar held on South Padre Island. Together, TCDLA and CDLP are conducting over 50 CLE in the coming year. We will train over 5,000 lawyers. We are putting significant resources into providing training to our speakers. We want all of our speakers to be prepared to present to our members. We taped the program, and it will be available on the TCDLA website under online CLE. Please call the home office if you are interested in reviewing it.

Special thanks to Bill Trantham (Denton) and his South Texas Grillers—Debbie and Bryan Buchanan (Denton), Mel Bruder (Dallas), Pepe Flores (Austin), and John Cantu (Austin)—for cooking up a barbecue and shrimp feast on the South Padre Island beach. Special thanks to Bobby Lerma (Brownsville) for all of his help in the logistics of putting on the Beach Bar-B-Q and covering and feeding close to 120 persons. We couldn’t do it without him.

Sam Bassett (Austin), President, held his Members Orientation and Retreat on South Padre Island in July. Between the dinner cruise, dolphin watching, and fireworks, as well as the island luau, a very good time was had by all. That included a large number of members with their families. Please make plans to join us next year for the full week of events scheduled for July 13–17, 2016, at the Pearl Hotel on South Padre Island.

Special thanks to Deandra Grant (Dallas) and Mark Theissen (Houston), our course directors for the 2nd Annual Lone Star DWI/Blood 101 seminar held in Austin. Thanks to their efforts and our speakers, we had 156 attendees. Special thanks to Kate Kelley and David Botsford for hosting a fabulous reception at their Westlake home for the attendees of the Lone Star DWI seminar.

Thanks to our members, we will have most of our TCDLA publications updated and ready to be sent to your offices beginning in mid-September 2015. Please go to our website for more information and to order your publications.

Please put down the dates for the 29th Annual Rusty Duncan Advanced Criminal Law Course in San Antonio: June 16–18, 2016. Our course directors will be Heather Barbieri (Denton), Jo Ann Jacinto (El Paso), Mark Stevens (San Antonio), Kameron Johnson (Austin), and Jim Darnell (El Paso). Scholarships will be available, thanks to all of you who bought the TCDLEI t-shirts.

Weren’t able to attend this year’s Rusty Duncan? You can order the DVD and get CLE credit. Please go to our website for more information and to order.

Do you need CLE credit and can’t attend our seminar training? Please call the home office for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in your area? Would like to re-energize or 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: Blowing in the Wind


Imagine this: It’s mid-morning on a weekday, you’re standing outside the Criminal Courthouse after finishing a hearing in Criminal Court. The weather is ordinary for Houston. The sky is clear, the humidity is high, the wind is almost nonexistent, and of course, it’s hot. Sirens are blaring from a distance, although in retrospect, that is nothing unusual for the sounds of downtown Houston, Texas, and as the morning transitions into early afternoon, those ever-so-distant blaring sirens are getting closer and closer. The sound is echoing through the buildings and courthouses almost to a point of being deafening.

Curiosity gets the better of you, and as you look up a scene unfolds right in front of you and the onlookers. With a look of shock, disbelief, and amazement, many see five police cars pursuing a pickup truck with two citizens. From my observation in its passing, the pursued vehicle had a tire that had already blown out early on in the chase or had been shot by law enforcement. The chase continued on 45 North, with more police cars joining the pursuit.

According to reports, the driver of the pickup truck allegedly rammed police cruisers and vehicles belonging to innocent bystanders. The police finally apprehended the suspects at Berry Road and Airline Drive, according to the news report. As I continued to watch the “Breaking News” that afternoon and evening, it was filled with not only this story, but many others revolving around crimes that had been committed throughout the city, county, and other parts of the country. To be honest, the stories were enough to dissipate my morale.

I pose the question, where’s the answer to the aforementioned chaos?

That evening (the day of the police pursuit), I entered my office and the first thing that jumped out at me was my diploma from law school. It says, “Attorney and Counselor at Law.” Oftentimes through the chaotic stress that clients and the very nature of this job creates, I believe we overlook the “Counselor” part, which results in not going that extra step or mile or, in some cases, miles to get your client into rehab, or return those frantic “End of the World” phone calls. Simply put, as Cool Hand Luke says, it’s a “FAILURE TO COMMUNICATE,” which often leads to a grievance. Nobody is above having a grievance filed against them. Several judges, prosecutors, and defense attorneys across the State of Texas have at one time or another been accused of some sort of ethical violation involving inadequate communication. While sitting in a bar bragging about your new Mercedes Benz is great, don’t let your alligator mouth overload your hummingbird ass.

Do not be ashamed to get your clients help or, if no opposition is held, get them to church. More often than not, people need positive reinforcement. You have a license to practice law and to some degree counsel individuals with options that will be most beneficial to them in an unfavorable situation. This isn’t a license to lie, cheat, steal, or deceive the individual who has had the misfortune of being arrested and charged with a crime, as they are aimlessly webbed into the criminal justice system. Winning is great; however, it isn’t everything. Those who send innocent people to prison to be locked away like wild animals are beyond despicable and in some quarters would be called to be taken to the nearest hanging tree.

There’s no denying, time like most things has changed things, and law has been no exception to that rule. With change comes uncharted territory, which leads to pressure. The pressure of the unknown and the unsureness of circumstances can in some instances lead to being unethical, whether that be described as above, or in advertising because someone is seeking that next case.

The Executive Director of the Harris County Criminal Law­yers Association, Christina Appelt, and I have discussed the wild advertising done by lawyers. A week out of law school, some law­yers are spending thousands of dollars on websites and paying top dollar to be listed at the top of the search engines—while bragging about their many awards received along with their ratings. The very idea of this is repulsive to not only me, but to the many lawyers I personally know who have gone to court and fought to protect the rights of their clients without fanfare or seeking glory or a higher rating on some phony ad program.

Mary Flood, a brilliant lawyer who helps lawyers in their advertising efforts, has informed me that most of the ads are not approved by the State Bar of Texas, as required by the ethical rules. Our organization is composed of many great lawyers. Some are low profile while others are high profile, and some do not seek recognition while others jump in front of the camera at every opportunity presenting itself.

In closing, I leave you with this final thought, whether you are low profile, high profile, camera shy, or prefer a camera: The bottom line is some lawyers are losing sight of what our responsibilities are, and that is effective counseling through effective communication. Will we ever find an answer to these questions, or will they just be “Blowing in the Wind”?

Do you feel like your life is Blowing in the Wind? Are your clients’ lives Blowing in the Wind? Get help for your clients through the many programs available. If you need help, call the Texas Lawyers Assistance Program. Bob Dylan sings a song, as follows. No one has all the answers. Seek help when needed. The answer is Blowing in the Wind.

“Blowin’ in the Wind” by Bob Dylan

How many roads must a man walk down
Before you call him a man?
How many seas must a white dove sail
Before she sleeps in the sand?
Yes, and how many times must the cannon balls fly
Before they’re forever banned?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

Yes, and how many years can a mountain exist
Before it is washed to the sea?
Yes, and how many years can some people exist
Before they’re allowed to be free?
Yes, and how many times can a man turn his head
And pretend that he just doesn’t see?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

Yes, and how many times must a man look up
Before he can see the sky?
Yes, and how many ears must one man have
Before he can hear people cry?
Yes, and how many deaths will it take ‘til he knows
That too many people have died?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind.

The TCDLA hotline number is 512-646-2734. Our committee members are Jack Zimmerman, Greg Velasquez, Don Davidson, Robyn Harlin, Joe Pelton, David Sheppard, Ray Fuchs, Michael Mowla, Joe Connors, Keith Hampton, Jimmy Ardoin, Larry McDougal, and Brent Mayr. They will try to find some answers blowing in the wind that may help you.

Off the Back: Using SFST Validation Studies in Your Next DWI Trial – By Stephen Gustitis


The National Highway Traffic Safety Administration (NHTSA) spent many thousands of dollars on studies to develop a battery of DWI investigation tools called field sobriety tests. The studies were funded by NHTSA to validate and standardize the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One-Leg-Stand tests. Standardization meant developing a method of administering and interpreting each test. Validation meant determining whether a correlation existed between test performance and a designated breath/blood alcohol content (BAC). Ever since, Texas prosecutors have used the Standardized Field Sobriety Tests (SFSTs) to prove driver impairment rather than estimate BAC. By driver impairment I mean proof the accused had lost the normal use of their mental or physical faculties. The police regularly portray the SFSTs as reliable indicators of impairment although the validation studies never established this correlation. Consequently, I routinely pack the validation studies for trial. Depending on my case theory, the studies provide ammunition to discredit the arresting officer’s predictable opinion about the reliability and effectiveness of these tests for determining driver intoxication.

How can you use the validation studies to your advantage? At least two studies reported findings that help you discredit the SFSTs. But first you must obtain suitable copies of each. I obtained mine from the U.S. Department of Commerce. They are domestic public documents under seal and self-authenticating. See Tex. R. Evid. 902(1). This way you can utilize the studies without proving them up with extrinsic evidence. Second, your officers must testify the studies are a reliable authority (i.e., a learned treatise) to avoid a hearsay objection. “To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” See Tex. R. Evid. 803(18). I maintain a running list of police officers married to the SFST studies. The easiest time to commit them is during the ALR hearing. First, pledge them to their NHTSA DWI Detection and Standardized Field Sobriety Testing student manual. Next, commit them to the published SFST studies outlined in the same manual as re­liable authorities. Every officer should acknowledge their own NHTSA student manual. Most officers will acknowledge the SFST validation studies, as well. If not, you’ll need another expert or judicial notice to establish the studies as reliable authority.

Anyone who’s tried a DWI remembers the prosecutor swinging for the fence with the esteemed HGN test. The officer’s NHTSA student manual (and their police academy instructors) indoctrinated them very effectively for trial testimony regarding this test. I’ve heard everything from “it’s reliable,” “it’s accurate,” or it’s the “best roadside sobriety test to determine whether a suspect is driving while intoxicated.” Consequently, try using the studies to discredit the venerability of the HGN. The 1977 study, Psychophysical Tests for DWI Arrest (Burns and Moskowitz, 1977) reported: “The jerking movement of the eye, which is known as Alcohol Gaze Nystagmus [AGN], occurs upon lateral gaze when the BAC exceeds approximately 0.06” (p. 7). “It [AGN] appears at a BAC as low as .06% and typically it is quite distinct at .10% BAC” (p. 77). Make the point that HGN can appear below the legal limit of 0.08. Since most officers have no idea when visible HGN begins to appear, this tidbit can take some bite out of their HGN testimony.

Furthermore, try impeaching the administration and scoring of the test using the 1981 study, Development & Field Test of Psychophysical Tests for DWI Arrest (Tharp, Burns, and Moskowitz, 1981). The study reported that “In looking for the onset of nystagmus, we recommend that the stimulus be moved fairly slowly (i.e., at about 10 degrees per second), but not too slowly, otherwise normal oscillation of the eyeball may be mistaken for nystagmus” (p. 7—my emphasis). If your DWI video shows the arresting officer moving the stimulus much slower than usual, this fact may help you establish that the eye’s normal movement can be mistaken for HGN.

Other helpful facts from the 1981 study regarding HGN included: (a) “We checked for [HGN] in 42 sober individuals, including 27 former alcoholics and 25 staff members. Approximately half of the people tested showed a slight nystagmus in at least one eye when their eyes were deviated maximally” (p. 7); (b) “About 3% of the population will show early-onset nystagmus, and impaired balance, with no alcohol in their system. This nystagmus could be the result of drugs other than alcohol, the result of brain damage, of illness, or of unknown etiology” (p. 9—my emphasis); (c) “Since police officers often arrest intoxicated persons after midnight, possible effects of fatigue or circadian rhythms on gaze nystagmus could be significant” (p. 9); and (d) “Gaze nystagmus can be seen in 50–60% of all individuals if their eyes are deviated to the extreme, but it is considered to be pathological when it occurs at less extreme deviations” (p. 82). These findings help discredit the cop’s testimony that HGN only becomes visible after a person becomes intoxicated by alcohol consumption. If you can develop doubt about whether the officer’s observations resulted from naturally occurring nystagmus, you may make further headway into debunking the test.

But what about discrediting the Walk-and-Turn (W/T) and the One-Leg-Stand (OLS)? The 1981 study offered some help, as well: (a) “A number of variables, in addition to alcohol, increase body sway. These variables include exercise, sleep loss, increasing the room temperature from 65–68 F to 79–86 F, eating, and tranquilizers and antihistamines” (p. 83); (b) “One of the most important parameters in tests of balance and muscular coordination is vision . . . These data suggest that peripheral vision plays a particularly important role in maintaining balance” (p. 83–84); and (c) “Thus, variables such as sleep loss, alcohol, tranquilizers, food intake, and warm temperatures appear to influence one’s ability to stand on one leg” (p. 84). Questions to explain away on the SFSTs might include the fact your arresting officer knew nothing about your client’s peripheral vision, sleeping habits, or food intake at the time he administered the test. What if your client was able to successfully maintain the heel-to-toe instructional position during the W/T? Look no further than the 1981 study again: “An intoxicated person can typically either listen to the instructions or keep his balance, but cannot do both” (p. 4).

The 1977 and 1981 SFST validation studies alone may not be enough to win your next DWI trial . . . but they’re a start. They shed light on the truth about the hallowed standardized field sobriety tests. Most police officers (and many prosecutors) have never read the studies. They simply regurgitate the hype promulgated by their NHTSA student training manuals and police academy instructors. Use the studies to show HGN is visible in many people who are stone-cold sober, that it can appear below the 0.08 legal limit, or that HGN is affected by the time of day. Show the arresting officer knew nothing about the innocent circumstances that might explain your client’s sway on the OLS—like vision problems or sleep deprivation. And when your client successfully maintains the instructional position on the W/T, sing their praises for passing such a difficult divided attention task! In any case, get the studies, read up, and good luck with your next trial.