Monthly archive

February 2016

January/February 2016 SDR – Voice for the Defense Vol. 45, No. 1

Voice for the Defense Volume 45, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Petitioners failed to establish a likelihood of success on their claim that using midazolam for execution violates U.S. Const. amend. VIII. Glossip v. Gross, 135 S. Ct. 2726 (2015).

      “Because capital punishment is constitutional, there must be a constitutional means of carrying it out. After Oklahoma adopted lethal injection as its method of execution, it settled on a three-drug protocol of (1) sodium thiopental (a barbiturate) to induce a state of unconsciousness, (2) a paralytic agent to inhibit all muscular-skeletal movements, and (3) potassium chloride to induce cardiac arrest. In Baze v. Rees, 553 U.S. 35[ (2008)], the Court held that this protocol does not violate the Eighth Amendment’s prohibition against cruel and unusual punishments. Anti-death-penalty advocates then pressured pharmaceutical companies to prevent sodium thiopental (and, later, another barbiturate called pentobarbital) from being used in executions. Unable to obtain either sodium thiopental or pentobarbital, Oklahoma decided to use a 500-milligram dose of midazolam. . . .

      “Oklahoma death-row inmates filed a 42 U.S.C. § 1983 action claiming that the use of midazolam violates the Eighth Amendment. Four of those inmates filed a motion for a preliminary injunction and argued that a 500-milligram dose of midazolam will not render them unable to feel pain associated with administration of the second and third drugs. After a three-day evidentiary hearing, the District Court denied the motion. It held that the prisoners failed to identify a known and available alternative method of execution that presented a substantially less severe risk of pain. It also held that the prisoners failed to establish a likelihood of showing that the use of midazolam created a demonstrated risk of severe pain. The Tenth Circuit affirmed.”

      The Supreme Court held, five to four, that the Tenth Circuit did not err when it affirmed the judgment that inmates who were awaiting execution were not entitled to an order enjoining the State from using a 500-milligram dose of midazolam as the first drug it administered. The district court’s determination that 500 milligrams of midazolam would make it a virtual certainty that any individual would be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs was not clearly erroneous, and the inmates failed to identify a known and available alternative method of execution that presented a substantially less severe risk of pain.

D’s trial counsel were not deficient for failing to question the legitimacy of adverse ballistics evidence; Strickland does not allow a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial. Maryland v. Kulbicki, 136 S. Ct. 2 (2015).

      In 1993, D allegedly shot and killed his mistress before a hearing on unpaid child support. At D’s trial, the prosecution presented evidence that the bullet removed from the deceased’s brain and the bullet taken from D’s gun were a close enough match that they likely came from the same package. After being presented with this ballistics evidence, as well as other physical evidence and witness testimony, the jury convicted D of first-degree murder. D filed a petition for post-conviction relief in state court in which he argued that he received ineffective assistance because his attorneys failed to question the legitimacy of the ballistics evidence. D’s petition was denied at the trial level, but the Maryland Court of Appeals reversed and vacated D’s conviction. The Supreme Court reversed the appellate court.

      The appellate court improperly examined the conduct of D’s lawyers based on contemporary views of ballistic evidence rather than how such evidence was viewed at the time of D’s trial. An appellate court violates the core principles of Strickland v. Washington, 466 U. S. 668 (1984), when it conducts a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial. Counsel was not ineffective for failing to attempt to discredit Comparative Bullet Lead Analysis (CBLA) evidence since the mode of ballistics analysis was uncontroversial and widely accepted at the time, and counsel was not required to search for an obscure report questioning the methodology or to predict the subsequent demise of CBLA. There was no reason for counsel to devote time to analyzing that evidence, including the 1991 report’s so-called methodological flaw against the ballistics expert on cross-examination, rather than other avenues of defense. Effective assistance of counsel does not require attorneys to go looking for a needle in a haystack that might not exist.

Fifth Circuit

The Fifth Circuit affirmed the district court’s order suppressing drugs discovered pursuant to a search following a traffic stop; the two Ds to whom the court granted the motion had standing to challenge the search of the bag in the trunk containing cocaine and meth because passengers in a vehicle have standing to challenge searches to their luggage, and Ds did not abandon or disclaim ownership prior to the search. United States v. Iraheta, 764 F.3d 455 (5th Cir. 2014).

      Furthermore, a third D’s consent to search the vehicle did not, under the circumstances, authorize the search of all the luggage in the car. The police were on notice that at least some of the luggage did not belong to the consenting co-defendant. There was no evidence that the other two Ds heard the third one consent to a search, nor were they ever informed of that third one’s consent by the officers; therefore, those two Ds did not ratify the third one’s consent by failing to contravene that consent. It was unreasonable for the officers to rely on the third D’s consent alone in searching the bag. The search was unconstitutional, and the court properly granted the motion to suppress.

Where D pleaded guilty to mail fraud (18 U.S.C. § 1341) in connection with making unauthorized personal charges on her company’s credit cards and opening un­au­thorized accounts, there was sufficient use of the mails to trigger federal jurisdiction over the case. United States v. Traxler, 764 F.3d 486 (5th Cir. 2014).

      As in United States v. Mills, 199 F.3d 184 (5th Cir. 1999), D’s continued fraud depended on her employer’s receiving and paying the credit card bills through the mails so the credit card company would not be aware of her fraud or decline her subsequent purchases.

Where D charged with bank robbery but found not guilty by reason of insanity was conditionally released pursuant to 18 U.S.C. § 4243(d), district court did not err in revoking D’s conditional release pursuant to § 4243(g) because the court did not clearly err in finding (1) D violated his prescribed treatment regimen, and (2) D’s continued release posed a substantial public risk. United States v. Washington, 764 F.3d 491 (5th Cir. 2014).

In sentencing D convicted of aiding and abetting sex traf­ficking of a minor (18 U.S.C. § 1591(a)), district court did not err in applying a two-level enhancement for use of a computer under USSG § 2G1.3(b)(3). United States v. Pringler, 765 F.3d 445 (5th Cir. 2014).

      Although the enhancement would not apply under the terms of Application Note 4 to USSG § 2G1.3, the Fifth Circuit, taking sides in a circuit split, held that Note 4 was inconsistent with the text of § 2G1.3(b)(3)(B) and, thus, should not be followed.

      (2) The district court did not err in applying a two-level en­hancement for undue influence of a minor pursuant to § 2G1.3(b)(2)(B). The enhancement is appropriate where com­plainants testify to their fear of leaving, as the complainant did here. There was sufficient evidence to conclude that D “compromised the voluntariness of the minor’s behavior,” § 2G1.3(b)(2) cmt. n.3(B).

There was merit to death-sentenced Texas D’s ineffective assistance of counsel claim with respect to the punishment phase of trial; counsel performed deficiently by failing to conduct a mitigation investigation. Canales v. Stephens, 765 F.3d 551 (5th Cir. 2014).

      There was also merit to the claim that D was prejudiced by his trial counsel’s deficient performance, as mitigation evidence could have uncovered a large body of evidence of a childhood full of violence, abuse, and privation; because D had not yet had the opportunity to develop the factual basis for this claim (until Treviño v. Thaler, 133 S. Ct. 1911 (2013), the claim was procedurally defaulted), the Fifth Circuit reversed the district court’s denial of relief on this ground and remanded. The Fifth Circuit, however, affirmed the denial of relief on D’s remaining claims.

Under Fifth Circuit precedent in United States v. Johnson, 632 F.3d 912 (5th Cir. 2011), the Attorney General’s Interim Rule of February 28, 2007 (which applied SORNA retroactively to pre-enactment sex offenders), was valid as to offenders like D. United States v. Torres, 767 F.3d 426 (5th Cir. 2014).

      Because the Interim Rule validly extended the Sex Offender Registration and Notification Act (SORNA) to D, the Fifth Circuit upheld D’s conviction for failing to register under SORNA after the Interim Rule was promulgated. The Fifth Circuit noted that the circuits are divided on this issue.

The evidence was sufficient to convict D for attempt to knowingly persuade, entice, or coerce a minor to engage in illegal sexual activity, 18 U.S.C. § 2422(b); grooming behavior plus other acts strongly corroborative of intent to entice illegal sex—such as detailed dis­cussions to arrange a meeting with the minor—can establish a substantial step for § 2422 attempt. United States v. Howard, 766 F.3d 414 (5th Cir. 2014).

      The Fifth Circuit noted, however, that “[i]n light of the government’s conduct [in this case], finding criminal attempt in this case is a close call, and we hope that this is the outer bounds of a case the government chooses to prosecute under § 2422(b).” The Fifth Circuit also noted that “[w]ere we the triers of fact, we might reach a conclusion different from the district court in this case.”

      (2) The word “attempt” in 18 U.S.C. § 2422(b) does not render that statute unconstitutionally vague. Nor is § 2422(b) unconstitutionally overbroad; it does not criminalize protected speech.

The Government violated the Stored Communications Act in the way it obtained historical cell site location data pertaining to D’s phone; under 18 U.S.C. § 2703(d), the proper procedure for such data is to seek a court or­der by submitting a detailed application. United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014).

      In this prosecution for racketeering/murder charges arising out of activities of the Texas Mexican Mafia, the federal gov­ernment simply got the data from state officials, who themselves had used a subpoena not a § 2703(d) order. However, suppression was not a remedy for a Stored Communications Act violation; under the reasoning of In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), the obtaining of that information did not violate the Fourth Amendment.

      (2) D’s argument that under the Juvenile Justice and Delinquency Act, the district court lacked jurisdiction to try D on racketeering conspiracy was foreclosed by United States v. Tolliver, 61 F.3d 1189 (5th Cir. 1995), vacated on other grounds by Moore v. United States, 519 U.S. 802 (1996). Under Tolliver, a defendant, after he turns 18, may be tried for a conspiracy that temporally overlaps his 18th birthday if the government can show that the defendant ratified his involvement in the conspiracy after reaching the age of majority; ratification in this context simply means that a defendant continues to participate in an ongoing conspiracy after his 18th birthday. Given the considerable evidence of D’s post-18 engagement in the RICO conspiracy, the district court had jurisdiction to try D on that charge.

      (3) D was properly sentenced as a “career offender” for conviction of assault of a prison guard while awaiting sentencing on the two cases used as predicates. Prior convictions for which a defendant has not yet been sentenced count as “convictions” in determining “career offender” status.

Court of Criminal Appeals

The taint of the unconstitutional GPS tracking device search had dissipated by the time D consented to the search of his vehicle and confessed that the meth discovered was his. State v. Jackson, 464 S.W.3d 724 (Tex.Crim.App. 2015).

      Law enforcement officers, suspecting D of drug trafficking, placed a global positioning system (GPS) device on his car in an attempt to ascertain when and where he was obtaining his supply. They monitored him as he traveled exceeding the speed limit. They independently verified that he was speeding by pacing his car in their unmarked vehicles. Later, another officer who was aware of the narcotics investigation verified by radar that D was speeding and pulled him over for that traf­fic offense. Without ever issuing D a speeding citation, the officers obtained his consent to search his car and discovered a quantity of methamphetamine in the trunk. A short time later D confessed that it was his. The State prosecuted D for possessing meth with intent to deliver. D moved to suppress both the meth and his confession. The trial court held that both were inadmissible, pursuant to Tex. Code Crim. Proc. art. 38.23(a), because the search was accomplished through the installation and monitoring of the GPS tracker; it granted D’s motion to suppress. COA affirmed. CCA reversed.

      The trial court erred by suppressing D’s confession and the contraband. The installation of the GPS tracking device and its use to monitor D’s whereabouts constituted a search for U.S. Const. amend. IV purposes; but the independent verification of D’s speeding was an intervening circumstance that purged the primary taint of the unconstitutional GPS tracking device search. D’s detention and his consent to search, the discovery of the contraband, and his admission were sufficiently attenuated from the primary illegality. Furthermore, to satisfy the attenuation-of-taint analysis, the primary illegality in this case was not the product of a flagrant disregard of D’s constitutional rights. Tex. Code Crim. Proc. art. 18.21, § 14(a), (c) permitted officers to install and use GPS upon sworn application to a dis­trict judge; officer’s use of the GPS device was purposeful, in the sense that he expressly hoped to obtain evidence in his narcotics investigation against D, but he did not knowingly violate D’s constitutional rights in that pursuit.

COA did not have the benefit of a recent CCA opinion when it upheld the admission of D’s prior remote con­vic­tion; CCA remanded for analysis of whether the pro­bative value of the remote conviction to impeach a witness substantially outweighed its prejudicial effect. Campos v. State, 466 S.W.3d 181 (Tex.Crim.App. 2015).

      “A jury convicted appellant of 3 counts of aggravated sexual assault, and sentenced him to 68 years imprisonment on each count. At trial, the State was allowed to impeach appellant, over objection, with a conviction that was more than ten years old. . . . [COA] upheld the trial court’s actions by ap­plying the common law tacking doctrine to the remote con­vic­tion, and assessing its admissibility under Texas Rule of Evidence 609(a)’s ‘outweigh’ standard rather than Rule of Evidence 609(b)’s ‘substantially outweigh’ standard. . . . We recently addressed this issue in Meadows v. State, 455 S.W.3d 166, 169 (Tex. Crim. App. 2015), in which we held that the un­ambiguous plain language of Rule of Evidence 609 supplants the common-law tacking doctrine. Under Rule 609(b), evidence of a prior conviction is inadmissible to impeach a witness ‘if more than 10 years has elapsed since the later of the date of conviction or release of the witness from confinement imposed for that conviction “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”’ . . . [W]e grant ground (9) of appellant’s petition for discretionary review, vacate the judgment of [COA.]”

Habeas applicant D was not exempt from execution as intellectually disabled because he failed to prove by a preponderance of the evidence that he had significantly sub-average general intellectual functioning. Ex parte Moore, 470 S.W.3d 481 (Tex.Crim.App. 2015).

      In 1980, D was convicted of capital murder and sentenced to death for fatally shooting a grocery clerk while committing or attempting to commit robbery. Tex. Penal Code § 19.03(a). CCA affirmed. Following a grant of federal habeas relief, the trial court held a new punishment hearing in 2001. D again received a death sentence. CCA affirmed on direct appeal.

      In this initial writ application challenging his 2001 punishment retrial and death sentence, applicant raised 48 claims. In 2014, the habeas judge held an evidentiary hearing on applicant’s first claim—that he was intellectually disabled and thus exempt from execution under Atkins v. Virginia, 536 U.S. 304 (2002). Following the evidentiary hearing, the parties filed proposed findings of fact and conclusions of law. Applicant’s findings and conclusions were titled, “Addendum Findings of Fact and Conclusions of Law on Claims 1–3” (Addendum Findings). Despite the document’s caption, applicant’s proposed findings and conclusions addressed only his Atkins claim. The State’s findings and conclusions addressed all of ap­plicant’s claims. The habeas court signed applicant’s proposed Addendum Findings. The Addendum Findings applied the definition of intellectual disability presently used by the American Association on Intellectual and Developmental Disabilities (AAIDD), concluded that applicant was intellectually disabled under that definition, and recommended that CCA grant relief on his Atkins claim. The Addendum Findings also concluded that applicant had established by a preponderance of the evidence that he was intellectually disabled under the diagnostic criteria in editions of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV and DSM-V). The habeas court also signed the State’s proposed findings of fact and conclusions of law after making handwritten alterations to the final page. Through its alterations, the court: (1) indicated that applicant’s grounds for relief should be granted in part and denied in part; and (2) adopted the State’s findings and conclusions concerning claims four through forty-eight, as well as its recommendation that CCA deny relief concerning those claims. The habeas court made no findings or conclusions regarding applicant’s claims two and three. CCA set the case to address applicant’s Atkins allegation. CCA here denied relief on all applicant’s claims.

      “The habeas judge . . . erred by disregarding our case law and employing the definition of intellectual disability presently used by the AAIDD, a definition which notably omits the requirement that an individual’s adaptive behavior deficits, if any, must be ‘related to’ significantly sub-average general intellectual functioning.” The two most reliable IQ tests conducted gave D scores of 78 at age 13 in 1973 and 74 at age 30 in 1989, and his letters from prison indicated a seventh-grade writing ability. His behaviors during the crime (planning division of the robbery proceeds, wearing a wig, covering up the gun with a bag, fleeing to Louisiana, and shaving his head) indicated planning, forethought, and an appreciation of the need to avoid apprehension. For U.S. Const. amend. VIII purposes, D was capable of functioning adequately in his everyday world with intellectual understanding and moral appreciation of his behavior.

Remand was necessary because the State’s entitlement to a nunc pro tunc judgment depended on at least one issue of fact—whether, at trial, the judge actually made a deadly-weapon finding—and this issue had not been conclusively resolved in the State’s favor. Guthrie-Nail v. State, No. PD-0125-14 (Tex.Crim.App. Sept 16, 2015).

      D was indicted for capital murder and conspiracy to commit capital murder. After a few days of trial testimony, the parties reached an agreement: The State waived the capital-murder charge in exchange for D pleading guilty to the conspiracy charge for a 50-year prison sentence. The conspiracy count of the indictment alleged that D,

with intent that capital murder, a felony, be committed, agree[d] with Mark Lyle Bell and Thomas Edward Grace, that they or one of them would engage in conduct that would constitute the offense, to wit: enter the habitation of Craig Nail and cause the death of Craig Nail, and Mark Lyle Bell performed an overt act in pursuance of the agreement, to wit: entered the habitation of Craig Nail and shot Craig Nail with a firearm causing his death.

      In her written judicial confession, D “admit[ted] to committing the offense of Conspiracy to Commit Capital Murder exactly as . . . in Count II of the charging instrument.” The trial judge questioned D at length about her plea and orally found her guilty of the offense “just as set forth in the indictment[.]” However, the judge did not orally refer to a deadly-weapon finding, nor did the plea papers mention a deadly-weapon finding. The judgment reflected “N/A” in the space provided for “Findings on Deadly Weapon.” More than two months after the original judgment was entered, the trial judge signed a judg­ment nunc pro tunc, changing the “Findings on Deadly Weapon” entry from “N/A” to “Yes, a Firearm.” The judgment nunc pro tunc also added a special finding that D “used or exhibited a deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.” The effect of this finding was that D would not be eligible for parole until she served at least 25 years of her sentence. COA concluded that the nunc pro tunc judgment was correctly entered. CCA reversed and remanded.

      One of D’s allegations was that she was entitled to notice and a hearing prior to the nunc pro tunc judgment. COA construed D’s notice complaint to be a complaint that the State failed to provide notice of its intent to seek a deadly-weapon finding; COA concluded the State provided sufficient notice. CCA said, “It is beyond dispute that she had such a right and that this right was violated. The State argues, however, that a remand to the trial court would be a useless task because the record indisputably shows that the nunc pro tunc judgment properly issued[.]” The trial court erred by entering a nunc pro tunc judgment adding a deadly weapon finding under Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2), because the plea papers did not mention a deadly weapon finding and the judge did not orally refer to a deadly weapon finding. An affirmative deadly-weapon finding must be an express determination to be effective. The record did not conclusively establish that a deadly-weapon finding was made at or before the time the written judgment was signed. Before any unfavorable nunc pro tunc orders are entered, the person convicted should be given an opportunity to be present for the hearing and represented by counsel to accord him due process.

Trial court properly held that D failed to establish the reliability of expert testimony under Tex. R. Evid. 702 about the weapon-focus effect to prove that the eyewitness misidentified him because the weapon-focus-effect theory had not been generally recognized as a valid hy­pothesis. Blasdell v. State, 470 S.W.3d 59 (Tex.Crim.App. 2015).

      The only dispute at D’s aggravated robbery trial was the identity of the assailant. To prove that the eyewitness misidentified D, the defense called a forensic psychologist to testify about the weapon-focus effect and its possible impact in this case; the weapon-focus effect postulates that the accuracy of eyewitness identification can be detrimentally impacted when, during the commission of an offense, a weapon is used by the assailant and seen by the complainant. The trial court excluded the testimony as irrelevant. D was convicted. COA agreed that the testimony was irrelevant and affirmed. In D’s out-of-time petition for discretionary review, he argued the testimony was relevant; CCA agreed, reversed COA, and remanded. On remand, COA once again affirmed the trial court but this time on the basis that the scientific principles of the weapon-focus effect were not proven reliable by clear and convincing evidence. D filed this petition for review, which CCA granted on two grounds: (1) eyewitness misidentification is a hallmark of wrongful conviction, and (2) whether COA decided an important question of federal law in a way that conflicted with applicable decisions of CCA or the U.S. Supreme Court.

      CCA affirmed COA by finding that D failed to establish the reliability of the expert testimony; the expert conceded that he had not published any peer-reviewed articles or conducted any studies of his own about eyewitness identifications, much less the weapon-focus effect.

Officer had reasonable suspicion to conduct a traffic stop once D drove by a “Left Lane for Passing Only” sign; she was clearly in the left lane without passing after driving by the sign in violation of Tex. Transp. Code §§ 544.004(a), 541.304(1). Jaganathan v. State, No. PD-1189-14 (Tex.Crim.App. Sept 16, 2015).

      The traffic stop occurred mid-afternoon while State Trooper was patrolling Interstate 10. The events were captured on the video camera in Trooper’s vehicle. This section of Interstate 10 had three lanes. A car ahead of Trooper moved from the right lane to the middle lane. When that vehicle moved to the middle lane, it was slightly ahead of D. It then pulled a little farther ahead. D’s car was at the front of a short line of vehicles in the left lane. D passed a “Left Lane for Passing Only” sign. Four or five seconds later, Trooper passed the sign while he was in the right lane. D’s car continued in the left lane. Another four or five seconds later, Trooper moved out of the right lane, across the middle lane, and into the left lane. Trooper then followed D’s car in the left lane for ten to twelve seconds; the middle lane was clear of traffic, and D was not passing any vehicles. D turned on her left turn signal, then turned it off and turned on her right turn signal, and moved into the middle lane. Trooper turned on his overhead lights, and the two vehicles pulled to the side of the road. During the course of the stop, Trooper smelled marijuana, searched D’s vehicle, and found marijuana in the trunk. As a result, D was charged with possession of marijuana. She filed a motion to suppress, which was denied. She pled guilty and was placed on deferred adjudication.

      On appeal, D claimed Trooper lacked reasonable suspicion to conduct a traffic stop. COA agreed, concluding that D was increasing the distance between her car and a truck behind her. and that a white car moved into the middle lane at the time D’s car passed the “Left Lane for Passing Only” sign. COA speculated that the white car’s movement “may have prevented appellant from moving safely into the middle lane.” COA also said “the State Trooper’s actions may have influenced appellant’s behavior in a manner that prevented appellant from complying with the ‘Left Lane for Passing Only’ sign.” Specifically, COA thought the fact that Trooper’s car approached D’s car “at a high rate of speed” was an event that “based on commonsense judgment and inferences of human behavior, could have caused appellant to slow down, effectively ending appellant’s ability to pass the white car that had merged into the middle lane.” COA also cited Trooper’s testimony that it is generally unreasonable for an individual to pull in front of or next to a marked police car approaching at a higher speed. Finally, COA concluded that Trooper “did not follow appellant for a sufficient amount of time or for a sufficient distance to conclude that appellant committed a violation.” COA also considered whether D frustrated the purpose of “Left Lane for Passing Only” signs and concluded that she had not; she neither impeded traffic nor put other drivers’ safety at risk.

      CCA reversed COA. “Appellant passed a ‘Left Lane for Passing Only’ sign and remained in the left lane without passing. The facts surrounding this conduct did not establish beyond question that appellant needed to remain in the left lane for safety purposes. Under these circumstances, we hold that the police officer had reasonable suspicion. . . . An officer may make a warrantless traffic stop if the ‘reasonable suspicion’ standard is satisfied. Reasonable suspicion exists if the officer has ‘specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.’ The Transportation Code requires that an operator of a vehicle ‘comply with an applicable official traffic-control device,’ including a sign. Before an officer can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a ‘Left Lane for Passing Only’ sign, the officer must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over. The record in the present case establishes that appellant did in fact pass such a sign.

      “The question in this case is not whether appellant was guilty of the traffic offense but whether the trooper had a reasonable suspicion that she was. Appellant was clearly driving in the left lane without passing after driving past a sign that prohibited that conduct[.]”

Court of Appeals

In a case involving burglary of a building, it was error to use a prior state jail felony to enhance under Tex. Penal Code § 12.35(a) because the State failed to prove D was previously convicted of two felonies that were not state jail felonies. Bledsoe v. State, No. 06-14-00138-CR (Tex.App.—Texarkana Nov 3, 2015).

      After a trial in which D represented himself, he was convicted of burglary of a building. The State alleged two prior felony convictions to enhance D’s punishment range, and D pled “not true” to those convictions. The State thereafter introduced a judgment of conviction for burglary of a building, a state jail felony, and a judgment of conviction for possession of a controlled substance, a second-degree felony. The jury found each enhancement allegation to be “true.” D was then sentenced to 20 years’ confinement.

      COA found the 20-year sentence improper because it exceeded the maximum punishment of 2 years’ imprisonment for an unenhanced state jail felony. Tex. Penal Code § 12.425 allows for penalty enhancement for repeat or habitual felony offenders on trial for a state jail felony, providing that “[i]f it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a) . . . the defendant shall be punished for a felony of the second degree.” Entitlement to a new punishment hearing was not predicated on a showing of harm since there was an improper enhancement. Whether the State could have alleged proper enhancements to increase the punishment range to that of a second-degree felony was not at issue since there was no attempt to do so, and the issue of whether the error could have survived habeas corpus review was not relevant to this decision. COA reversed the trial court on punishment and remanded.

Trial court should have included an instruction for the defense of the unborn child in addition to the instruction for the defense of the mother; this error was harmful because the matters of provocation and a duty to retreat that may have been attributed to the mother would not be attributable to the unborn child. Holland v. State, No. 11-13-00361-CR (Tex.App.—Eastland Nov 30, 2015).

      D appealed his conviction for aggravated assault with a deadly weapon; in four issues, he asserted the trial court erred when it refused his requests for a charge on a lesser-included offense and various defensive instructions. COA reversed and remanded for a new trial.

      “[A] person that murders a pregnant mother and her unborn child commits two murders. . . . [T]his same reasoning applies in the context of the defense of third persons as set out in [Tex. Penal Code §] 9.33. If Appellant believed that attacking Burnett was immediately necessary to protect [the mother]’s unborn child from unlawful force, then Appellant would be entitled to an instruction on defense of a third person for the unborn child. . . . We disagree with the State’s contention that the jury’s rejection of the defense of a third person pertaining to [the mother] provides us with an assurance that Appellant suffered no harm by the omission of an instruction regarding the defense of the unborn child. . . . Appellant suffered ‘some harm’ from the omission of an instruction on the defense of the unborn child because the matters of provocation and a duty to retreat that may have been attributed to the pregnant mother would not be attributable to the unborn child. Furthermore, the jury might have determined that greater force was necessary to protect the unborn child than was necessary to protect the pregnant mother. The absence of a separate instruction for the defense of the unborn child precluded the jury from reaching this determination. Accordingly, we sustain Appellant’s second issue. We need not address the remaining issues.”

The Michael Morton Act’s Undiscovered Country

The Michael Morton Act continues to transform the landscape of criminal justice in Texas. Lawyers who graduated from law school since its inception will never experience the difficulties defense lawyers once faced in investigating and preparing their cases.1 Once, we had to cobble together investigations and guess at the State’s case, employ “examining trials”2 in hope of discovery, and invoke the Gaskin rule.3 Remember those relics of a cat-and-mouse system of revelation? Today’s young lawyers and prosecutors and future judges will never have known it.

Today, we can now build robust cases in defense of our clients, thanks to the Michael Morton Act. We can offer juries a more thorough telling of the other side of the story, ensuring reliability of their determinations. We can challenge junk science and bad investigations. Like never before, we can help to ensure justice.

Lawyers Can Read the Offense Report—Why Can’t Trial Courts?

The Act’s influence may ultimately impact law in new, unanticipated ways. This article explores how it may change the nature of three pretrial litigation practices: motions to quash, as-applied challenges, and sufficiency adjudications. First, let us look at motions to quash the indictment/information which are based on some defect in pleading.

It has long been the law in Texas that challenges to charging instruments are purely a matter of pleading—i.e., charging instruments could be challenged “based solely upon the language within its four corners, as a pleading.”4 No court could ever “quash” or dismiss or set aside any charging instrument based upon the production of evidence.5 Anything outside pleading defects has always been irrelevant.

This long-standing jurisprudence made sense in light of the fact that no one except the prosecution actually knew the details of the State’s case. No court would be in a position to make a decision regarding a charging instrument based on any evidence presented by the defense because it could not know the State’s best case for guilt. Maybe the judge suspected that the official charge really was bogus, but a court could hardly make that determination based upon a one-sided, self-interested version of the facts offered by the defense. Today, thanks to the Morton Act, courts can make those calls decisively and reliably.

Courts Can Terminate Bad Cases

The Michael Morton Act does not alter challenges to charging instruments per se. The defense attorney should continue the good practice of examining the indictment or information for pleading defects and moving courts to correct them. But the Morton Act offers more. It makes it possible for the first time in Texas legal history to make pretrial determinations beyond mere pleading defects. It offers the promise of trial judges ending baseless prosecutions by straightforwardly dismissing cases where no offense has been stated. Is this some new-found form of judicial power? Hardly.

Courts have long exercised the power to decide the validity of initial accusations—i.e., affidavits asserting criminality for warrants of arrest or search.6 The Fourth Amendment mandates that only a judge may issue warrants. The Fourth Amendment also “requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [a warrantless] arrest.”7 Judges thus can and do routinely read documents generated by law enforcement officials and decide whether official action—arrest or search—is justified under law. If it is lacking, the judge terminates further proceedings by refusing the warrant or rejecting the affidavit.

It is true that this judicial determination can ordinarily be made only within the “four corners of the affidavit,” which is to say that the examination for sufficiency is confined to the information contained within the document itself.8 Yet even within this framework, a court can still make its determination based on matters outside the affidavit. Specifically, the court can suppress the government’s evidence if the defense attorney establishes by a preponderance of the evidence produced at a suppression hearing that the affidavit was based on material falsities.9 Thus, judicial authority has long extended beyond the rejection of an affidavit for lack of probable cause—they possess the power to suppress evidence obtained through a false affidavit through an examination of evidence outside the four corners of the police “pleading.”

There is no reason why this familiar framework of judicial review of an initial accusation cannot be applied to charging instruments after the Michael Morton Act. It is time for defense lawyers to move judges to act precisely as they would as if they were presented with a search warrant affidavit that fails to establish probable cause—or an accusation proven to be false, or an arrest warrant for described acts that do not constitute a crime. It is time for offense reports to be used offensively by the defense through pretrial litigation. It is time for courts to make these determinations from the offense reports both sides now possess. Texas law has run out of excuses.

Give them the offense report, as Tom Delay fervently hoped he could, and let a trial judge make the same determination appellate justices, justices of the peace, municipal judges, and magistrates of all stripes routinely make. Trial judges can read the Penal Code. Trial judges can also now read offense reports and surely determine whether a criminal offense is stated. If defense counsel finds herself searching an offense report for acts that might violate criminal law, perhaps she should file a motion, attach under seal the offense report, and ask the trial court to see if it can find a crime. If no crime can be found, then the court should dismiss the case and let that person go on with a personal life without further governmental interruptions.

A dismissal under these circumstances would save everyone time and energy best spent elsewhere on other cases where criminality is not so strained that it must be searched for. These cases involve people who should be spared any further experience with the criminal justice system. For those cases in search of a Penal Code offense to be violated, trial courts should dispatch them from the docket routinely and without hesitation.

You’ve Read the Report—No Crime

What if the offense report accurately references a penal statute, but the stated facts do not trigger it? What if a trial judge could read an offense report, assume all of it to be true, including hearsay, reasonable inferences, and everything in between, yet conclude the facts of the offense report do not violate law? The Michael Morton Act lets trial judges follow their constitutional role and do the right thing.

Before the Michael Morton Act, the Court of Criminal Appeals reaffirmed its preclusion of defendants challenging penal statutes in a pretrial setting on the grounds that the application of the statute would be unconstitutional. The rationale has been that only “during or after a trial on the merits” may a trial court “have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”10

The Michael Morton Act removes this rationale. Courts can have all the “particular facts and circumstances of the case” necessary by reading the offense reports with the assumption that all assertions therein are true. Then it can consider the de­fendant’s argument that the statute under which he has been charged will be applied unconstitutionally against him. If it is unconstitutional to apply the statute, the court can dispose of the case without the necessity of trial, thereby conserving judicial resources and preventing an unconstitutional prosecution—precisely the purpose of pretrial determinations.11

Similarly, an accusation that does not constitute an offense could be dismissed pretrial. The long-standing objection—that the court cannot make that call because it cannot know the facts of the case—no longer exists since the Michael Morton Act. A judge can read, and there is now something for the judge to read which goes to the merits of the case itself. A judge can peer into the government documents and see if she can find a crime just as easily as she can re-read an affidavit in search of probable cause. Harassment prosecutions alone could be prevented merely by judges reading the offending email.

The co-defendants prosecuted for Election Code violations in the corrupt Tom Delay (former Texas congressman) scheme certainly would have benefited from the ability of the trial courts to reach the merits of their claim that they committed no crime. They certainly tried to get the matter settled pretrial, but the Court of Criminal Appeals precluded it.12 Ultimately, the Court would find that the alleged conduct failed to constitute a violation of the law.13 Had this procedure been available to the co-defendants to Delay’s scheme to circumvent Texas election laws, they would have escaped conviction, as he ultimately did.14

While Delay was denied this procedure, former Governor Rick Perry may yet win it. His pretrial writ appeal is pending at the Court of Criminal Appeals, and he is making this argument. Or I should say the Third Court of Appeals is begging the discretionary court to permit appellate courts to entertain “as applied” challenges to statutes. In a interminably long opinion, Ex parte Perry, No. 03-15-00063-CR (Tex. App.—Austin, July 24, 2015), the Third Court complains “its hands are tied” with such fervor and repetition that its opinion looks more like a brief to the CCA than an opinion. Keep your eye on Ex parte James Richard “Rick” Perry, PD-1067-15. On October 7, 2015, the Court of Criminal Appeals granted his petition for discretionary review, and the cause was argued on November 4, 2015. If Perry’s appeal maintains this speed, look for a decision by early Spring.

Ex parte Carrillo and the Vacuum of True Remedies for Discovery Abuse

In Ex parte Carrillo,15 the relator16 sought to compel the Lubbock County District Attorney to provide discovery “as soon as practicable,” and end its practice of denying discovery until after indictment. The Court of Criminal Appeals summarily denied motion for leave to file, but Judge Alcala issued a concurring opinion. She found that it was “unclear” whether the relator had a clear right to relief in light of the “leeway” that 39.14’s phrase “as soon as practicable” appears to provide. She did agree that the DA’s policy of withholding discovery until after indictment was wrong:

[T]he Legislature’s broad use of the phrase “any matter involved in the action” cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation. I, therefore, agree with relator’s assertion that, by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the “as soon as practicable” language into “as soon as practicable after return of indictment by the grand jury.”

Judge Alcala also found that there exists two remedies for the State’s failure to abide by the Morton Act: “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Really? Let’s see how that works out.

Discovery Abuse: Late Disclosures

Tardy Brady disclosures put the burden on the defense to demonstrate how it was prejudiced by the late revelation.17 That rule precludes a reversal if the defense attorney put the late disclosure to “effective use at trial.” This “effective use” rule puts the defense lawyer in a damned bind: Do nothing with the new exculpatory evidence and you have just increased the odds for conviction; be “effective” and waive goodbye to a new trial in which defense counsel would be far more effective. This state of affairs provides no remedy and no deterrence against late Brady disclosures. On the contrary, it effectively rewards gamesmanship whereby a prosecutor can avoid any consequence simply by disclosing Brady material just before or even during trial.

Tardy disclosures of prejudicial evidence, on the other hand, appear to put the burden on the State to justify why it with­held evidence of, say, its best prosecution witness or most prejudicial evidence until late in the process. Under current law, such evidence is excluded only if the violation of a discovery order is “willful.”18 Oprean v. State is the latest affirmation of the remedy of exclusion.19 What, then, is “willful” in the context of discovery abuse?

The Oprean prosecutor—previously ordered to give “[a]ll videos” to defense counsel—only did so after the jury found the defendant guilty. The video was the defendant’s unflattering previous DWI. The prosecutor knew about the videotape and had signed the original trial judge’s discovery order to disclose it before trial.

When the prosecutor sought to introduce the tape, defense counsel objected he had never seen it and moved to exclude it. At that point in the trial, a new judge had replaced the judge who had crafted the original discovery order. Facing the new judge, the Oprean prosecutor argued that the original order did not specify punishment evidence under Article 37.07—an apparent parsing of the discovery order. The prosecution also argued that defense counsel never asked for such 404(b) notice (if true, it is utterly inexcusable).20

“Because the prosecutor knew about the discovery order and chose to invoke Article 37.07,” a majority of the Court concluded, “she made a conscious decision to violate the plain directive of the discovery order.” It was, the Court found, a “calculated effort to frustrate the defense.”21 The Court implicitly recognized how the prosecution sought to manipulate the new judge by exploiting the original order.

If the prosecutor has deliberately delayed the disclosure of prejudicial evidence, do not move for exclusion until after jeopardy has attached.22 Otherwise, the State can appeal the exclusion of its evidence. This is precisely what happened in State v. LaRue,23 another case involving the late disclosure of prejudicial evidence.

Defense counsel in LaRue sought the results of DNA tests to defend his client accused of capital murder. The prosecutor got the lab report on April 17, 2002, and after repeated requests by defense counsel, finally disclosed it to the defense attorney—after the commencement of jury selection on February 13, 2003. The trial court excluded the evidence as the remedy for the prosecution’s discovery abuse, just as Judge Alcala contemplated in her Carrillo concurrence.

The Court of Appeals reversed, and the Court of Criminal Appeals affirmed. “The State should have produced the evidence in more timely fashion,” the LaRue Court frowned, “especially considering the repeated requests made by defense counsel.”24 But the Court found the prosecutor did not intend to violate the discovery order (which was vague as to time, place, and man­ner), nor did the prosecutor intend to harm the defense. The prosecutor may well have been grossly negligent, even reckless, but because he did not act in bad faith, he did not act “willfully,” the Court concluded, and hence the evidence should not have been excluded.

If the rest of the Court shares Judge Alcala’s confidence that the exclusion of evidence and appeal are adequate remedies, then the discovery process is likely to settle into something less than the promise of the Michael Morton Act’s “as soon as practicable” requirement. Unless bad faith can be proven, there will be nothing to discourage prosecutorial procrastination, and defense counsel should expect surprising prejudicial evidence to appear sometime around trial with the same leniency as last-minute Brady revelations—precisely the custom before the discovery statute was changed, as if the Morton Act was never enacted.

Enforcing the “As Soon As Practicable” Requirement

Competent defense counsel will seek discovery as soon as possible. Not only can defense counsel find witnesses and evidence while still relatively “fresh,” but a speedy investigation can inform the prosecutor that the case he was handed is actually half-baked, or that the police got the wrong person, or the case is tainted by corruption, or other insights. Grand juries can be better informed. In short, the system as a whole benefits greatly from the defense getting discovery quickly.

Earlier this year, the state defense bar discovered that in some jurisdictions peppered around the State, the prosecution had decided that it had no duty to disclose until after indictment. A district attorney’s policy of providing discovery based on some self-invented condition plainly violates Rule 8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct, as the Professional Ethics Committee of the State Bar of Texas has held. The Committee reasoned:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the pro­vi­sions of article 39.14 unless de­fense lawyers first agreed to waive cer­tain rights of their clients. Under ar­ti­cle 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose con­di­tions not found in article 39.14 before making the re­quired disclosures.

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R. Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). These jurisdictions are a clear minority, one that continues to shrink.

Judge Alcala’s concurrence in Ex parte Carrillo affirmed that the setting of preconditions was a misguided reading of the plain language of the statute. But she also did not think the matter was remedied by way of an application for writ of mandamus. How, then, can the defense obtain timely discovery from DAs who have decided to comply with the statute only after indictment (or some other condition, like “upon signing this document”)?

The filing of a motion in the district court is useless because the court only obtains jurisdiction after indictment. Tex. Const. art. V, § 12(b). Instead, the defendant should file a writ application in the district court so that it has jurisdiction to enforce Article 39.14 of the Code of Criminal Procedure.25 The district court can then order the district attorney to comply with the statute by promptly and diligently providing discovery, as explicitly required by law.

As far as late disclosures, the current remedies are uncertain and inadequate. If the courts will do little else than give occasional stern lectures, the legislature may need to step in. I would suggest a statute that gives the defense an option: a mandatory continuance for a period of time that would ensure the full and fair presentation of the newly disclosed evidence or a mandatory mistrial in cases of late Brady disclosures. My bet would be that this form of prosecutorial misconduct would evaporate pretty quickly, and the “as soon as practicable” would be honored as if it were mandatory Texas law (it is).

As for late disclosure of prejudicial evidence, I would give the defense the option of a mandatory continuance to investigate and challenge the newly disclosed bad evidence or exclusion of the evidence. I would also tie the exclusion to its effect on the trial and not the good or bad faith of a particular prosecutor.

In the same way Brady violations are regarded,26 the trial judge should not care so much why the disclosure was so late, but should consider its degree of prejudice to the defendant’s legal defense. Put another way, I would have the unethical prosecutor have his bar card yanked for bad faith later, but I more immediately care about the fairness of the proceedings against my client. I want a remedy that speaks directly and effectively to this basic interest.

Trial judges can readily exclude such evidence via the notice provisions in the evidentiary rules and can also sanction the prosecution for deliberate sandbagging. Cases where the prosecutor acted in bad faith are easily remedied by a diligent court. Absent those scenarios, however, trial courts should fully exploit their authority to discourage prosecutorial gameplay.

I have not asked Michael Morton about his views on the procedural and ethical considerations of how to deal with this new frontier of prosecutorial misconduct. But I believe that if he had to choose between well-informed lawyers before trial and the disbarment of a prosecutor 25 years later, he would opt for the former. He, like anyone else accused of crime, should not have to choose, but be guaranteed both a fair trial and an honest prosecutor. We need truly adequate remedies against this form of misconduct—remedies we do not currently have, but the Michael Morton Act surely demands. Foremost, we must ensure fair trials so that the innocent may be acquitted. We can get to disbarments and 10-day sentences later.


1. For a taste, the reader is referred to “Texas Discovery: Where We Were, Where We Are Headed” (Voice for the Defense, November 20, 2013).

2. Tex. Code Crim. Pro. 16.01.

3. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1962).

4. State v. Seibert, 156 S.W.3d 32, 36 (Tex. App.—Dallas 2004, no pet.)(emphasis added).

5. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994)(Clinton J., dissenting).

6. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

7. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

8. See, e.g., Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1973); McLennan v. State, 3 S.W.2d 447, 448 (Tex. Crim. App. 1928).

9. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

10. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

11. Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)(pretrial as-applied challenges are appropriate “for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served”).

12. Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010).

13. Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014).

14. Full disclosure: I wrote the amicus brief on behalf of Texans for Public Justice and argued that Tom Delay was guilty and his conviction should be affirmed.

15. Ex parte Carillo, Nos. WR-83,345-01 & WR-83,345-02 (Tex. Crim. App., June 26, 2015).

16. Relator was represented by Chuck Lanehart, Allison Clayton, Laurie Key, Dick Baker, and Philip Wischkaemper.

17. Little v. State, 991 S.W.2d 864 (Tex. Crim. App. 1999).

18. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). The majority opinion also left open the possibility of exclusion of evidence for negligent or reckless failure to comply with a discovery order “if the appellant suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.” Id. at 855 n.8.

19. Oprean v. State, 201 S.W.3d 724 (Tex. Crim. App. 2006).

20. If you hear the word “besides” in an answer for the quest for truth, keep asking.

21. Oprean at 728.

22. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). In non-jury trials, jeopardy attaches under the federal constitution when the first witness is sworn or the judge begins to hear evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under the Texas Constitution, however, jeopardy attaches in a bench trial when both sides have announced ready and the defendant has pled to the charging instrument. State v. Torres, 805 S.W.2d 418 (Tex. Crim. App. 1991). For purposes of precluding a State appeal, you should follow the federal rule.

23. State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004).

24. Id. at 97.

25. The application for writ of habeas corpus should cite the district court’s broad authority under Article 5, § 8, of the Texas Constitution to issue writs. It should also remind the court of its inherent authority to manage its own docket. State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).

26. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995)(“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).

The Fourth Amendment and Traffic Stops: A Completely Fictitious, Tongue-in-Cheek Guide to Being a Successful Drug Courier

I. Introduction

If you are a manufacturer of a product, it is important to get that product to your customers as quickly as possible, with the least amount of hassle and cost. If your product just happens to be illegal drugs, such as cocaine or marijuana, your needs are no different—you still want an effective and efficient flow of goods from the point of origin to the point of consumption. To achieve this goal, you may be required to use the services of couriers to transport your product to the distributors or to carry the proceeds back to you. In many instances, your couriers will use a motor vehicle, ranging from cars to vans to tractor trailers.1

The primary job of these couriers is to deliver the goods to the intended destination. This is not an easy task, as couriers must run the gauntlet of multiple law enforcement agencies, including U.S. Immigration and Customs Enforcement (ICE), Border Patrol agents, highway patrol officers, sheriff departments, and local police departments. The job has been made even more difficult by the traffic-stop tactics employed by these law enforcement agencies.

How do you, as a supplier, increase the odds of your couriers safely arriving with your product? This guide could help. Gleaned from case law (primarily from the Fifth Circuit and Texas courts), this guide provides many examples of what not to do. Or, put another way, this guide sets out examples of alleged conduct that initially resulted in the courier’s vehicle being stopped. It also includes alleged behavior by the courier(s) after the stop that ultimately resulted in a search of the vehicle and the seizure of the product. It is important to remember that even where the evidence is seized but ultimately suppressed, the merchandise is lost nonetheless, which is what you are trying to prevent. In the long run, if these situations can be avoided, then your distribution system should run smoothly.

II. Law Regarding Traffic Stops

A. The Initial Stop

In Terry v. Ohio, the United States Supreme Court held that police officers may detain individuals briefly on the street, even though there is no probable cause to arrest them, as long as they have a reasonable suspicion that criminal activity is afoot.2 Courts have applied the reasoning in Terry to traffic stops, holding that the “stopping of a vehicle and detention of its occupants constitutes a ‘seizure’ under the Fourth Amendment.”3 A traffic stop, whether supported by probable cause or reasonable suspicion, is treated as a Terry stop.4 To determine the legality of police investigatory stops, the Fifth Circuit utilizes a two-part test: 1) “examine whether the officer’s action was justified at its inception”; and 2) “inquire whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.”5

As for the first prong, if a traffic violation actually occurred, no matter how minor, the stop will be justified.6 The second prong requires much more analysis, as a bright-line approach to reviewing the reasonableness of traffic-related detentions has been rejected.7 “Whether an officer’s actions are ‘reasonably related in scope to the circumstances that justified the stop’ is a fact-specific question often informed by ‘timing and sequence.’”8 A search of a vehicle “is not reasonably related to the circumstances justifying a traffic violation stop when the search in ques­tion occurs after the time required for an officer to issue a citation (or to decide against doing so) and to complete a ‘computer check’ for outstanding warrants and vehicle theft.”9

In United States v. Santiago,10 the court set out the basic rule regarding an officer’s actions during a traffic stop:

During a traffic stop, an officer can request a driver’s license, insurance papers, and vehicle registration; he or she may also run a computer check and issue a citation. The officer may detain and question the subjects of a traffic stop during the time a computer check is being conducted. Furthermore, this court usually does not scrutinize the particular questions asked during a stop so long as they tend to relate to the purpose of the stop.

* * *

However, a Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop. Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed.


B. Prolonging the Stop Requires Reasonable Suspicion

“[T]o prolong a detention after issuing a citation or determining that no citation should be issued, an officer must have a ‘reasonable suspicion’ that a crime ‘has been or is being committed.’”11 “Reasonable suspicion ‘exists when the detaining officer can point to specific and articulable facts that, when taken together with rational inferences from those facts, reasonably warrant the search and seizure.’”12 An officer’s “hunch” or “feeling” that a crime has been or is being committed is not sufficient to support reasonable suspicion.13

C. Recent K-9 Decision

Recently, the United States Supreme Court made it a little more difficult for law enforcement to use drug-detecting dogs to locate merchandise. In Rodriguez v. United States, the Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”14 In that case, an officer stopped a vehicle for temporarily driving on the shoulder of the road.15 After running a license and warrant check, the officer returned the driver’s information and issued a warning. At that point, the purpose of the stop had ended, but the officer requested permission to run his drug dog around the vehicle. Despite the driver’s refusal to give consent, the officer told him to turn off the ignition, exit the vehicle, and stand in front of the patrol car. The dog alerted to the presence of drugs, and a search of the vehicle revealed a large bag of methamphetamine.16 The question of whether the officer had reasonable suspicion to justify detaining the driver beyond completion of the traffic infraction investigation was not considered by the lower appeals court and thus remained open for consideration on remand.17

With this background in mind, the following information should be used to prepare your vehicles and to train your couriers so that your merchandise will safely reach its intended destination. Bear in mind that the use of this guide will in no way guarantee that your courier will not get stopped or that your merchandise will not be confiscated. However, with a little effort on your part, you might just lower the chances of that happening.

III. Make Certain Vehicle Is in Good Condition

THE WOLF: About the car, is there anything I need to know? Does it stall, does it make a lot of noise, does it smoke, is there gas in it, anything?
JULES: Aside from how it looks, the car’s cool.
THE WOLF: Positive? Don’t get me out on the road and I find out the brake lights don’t work.
JULES: Hey man, as far as I know, the m——r’s tip-top.18

The Wolf was justified in being concerned about the condition of the car. Driving a vehicle that has a malfunctioning taillight, headlight, or other similar non-functioning equipment could easily lead to a traffic stop and the loss of product and/or funds. Before a courier leaves on his delivery run, it is imperative that the vehicle’s equipment be checked out from bumper to bumper.

For instance, a broken or non-functioning taillight can get your courier pulled over. In United States v. Andres,19 an officer observed a red pickup truck pulling a car trailer. The officer noticed that the trailer’s taillights were “flicker[ing] as if there was a mechanical issue.” After having the driver sign the traffic ticket, the officer asked permission to search for drugs with his dog, and the driver consented. Officers ultimately found over 20 kilograms of cocaine in a hidden compartment in the truck.20 A bad headlight can also result in a traffic stop. In State v. Williams, officers patrolling a “high crime area” at night spotted a vehicle with defective driver’s side headlight and blue accessory light.21 A subsequent search of the car found a large bottle of cough syrup containing codeine.22

Something as simple as window tint can result in a traffic stop. In Caraway v. State, a DPS trooper made a traffic stop because he believed that driver’s vehicle had illegal tint on its win­dows.23 After testing the window on the passenger’s side with a window tint meter, the officer determined that the tint was darker than the legal limit. Before writing the driver a warning, the officer asked for and received permission to search the car. He ultimately found 1,800 grams of cocaine.24 The lesson learned: Get your own window tint meter and test the vehicle before it leaves.

If your drivers are operating in Texas, make sure that the ve­hicle has a front license plate. One supplier did not and it cost him dearly. In August 2004, officers initiated a traffic stop on a Dodge Durango because it was missing its front license plate, a violation of Texas traffic laws.25 A search revealed fresh glue on the carpet, which was a different color, and tool marks on the bolts on the back seat. The car was taken to a shop, and 15 pounds of cocaine were found in a hidden compartment behind the back seat.26 And speaking of license plates, make sure the lights illuminating the plate work27 and make certain the plate is not “obstructed.”28 Both of these will give law enforcement jus­ti­fication to stop the vehicle.

Even where the officer is mistaken about the traffic violation, and even if the seized evidence is ultimately suppressed, your product is still lost. In State v. Mazuca,29 an officer saw a yellow Mustang that, in his opinion, was emitting white light from the taillights, where the statute required that they be red.30 The vehicle was stopped and the passenger was arrested on outstanding warrants, but not before the officer found approximately 400 grams of ecstasy in the passenger’s pocket. The Mustang’s owner testified at the suppression hearing that he had modified his taillights to include “some clear rear lights,” but they retained “red lights in the middle[.]”31 The trial court suppressed the seized evidence based on the fact that no traffic violation had occurred, and the El Paso Court of Appeals affirmed.32 The Court of Criminal Appeals held that the evidence should not have been suppressed because of the outstanding warrants and because of the proximity of when the officer became aware of the warrants and when the drugs were found.33 However, despite the particular outcome in the courts, the suppression of the evidence is of little comfort for a supplier because your inventory has been confiscated.

IV. Obey the Traffic Laws

TROOPER (on motorcycle): Pull over!
HARRY: No, it’s a Cardigan! But thanks for noticing!
LLOYD: Yeah. You wear boots man!
TROOPER: Pull your car to the side of the road! License and registration, please. You fellas were going kinda of fast back there wouldn’t you say?34

Assuming you have checked out the vehicle and made sure it is “tip-top,” the next step is to stress upon your driver the im­portance of obeying the traffic laws. Speeding (like Harry and Lloyd, especially in a vehicle that resembled a large, shaggy dog), failing to use a turn signal, drifting over the fog line, failing to maintain single traffic lane, or not wearing a seatbelt can all lead to a traffic stop and the potential loss of product. Even an omission as innocuous as failing to dim your headlights can end badly. In State v. McCray, the driver failed to dim the bright lights on his automobile as he passed a Longview police officer.35 The police officer flashed his bright lights, and the driver still failed to dim his lights, which resulted in a traffic stop. Tell your drivers to pay attention to what is going on around them, and your product will make it to its destination.

Then there is the difficult-to-refute allegation of following too closely. The Texas Transportation Code dictates that “[a]n operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that . . . the operator can safely stop without colliding with the preceding ve­hi­cle. . . .”36 If law enforcement is looking for any reason to make a traffic stop, a violation of this statute could provide that reason. In United States v. Gillyard, a highway patrolman stopped two vehicles traveling eastbound on Interstate 20 between Dallas and Shreveport, Louisiana, for following too closely behind an 18-wheeler.37 The stopped vehicles were a red Chrysler Concorde, which was behind the 18-wheeler by two car lengths, and a Pontiac Grand Am that was one car length behind the Concorde. After the driver of the Concorde got out, the passenger slid into the driver’s seat and drove off. He was captured after a high-speed chase, and six bricks of powder cocaine were found in the trunk of his car.38 The moral: Tell your drivers to keep a proper distance between their vehicle and others on the road. It might also be a good idea to tell them that trying to outrun law enforcement is not a good solution either.

Turn signals, which have been available on vehicles for over 100 years, are another source of traffic stops. In 1907, Percy Douglas-Hamilton applied for a patent for a device “indicating the intended movements of vehicles.”39 Buick was the first U.S. automaker to offer factory-installed flashing turn signals in 1939.40 Although turn signals are now required for all vehicles (except antique vehicles that never had them), many drivers seem totally oblivious to their existence. This inattention to detail can be detrimental to the transportation of your merchandise. In Rodriguez v. State, officers in an unmarked car followed the defendant’s vehicle until they saw the defendant fail to use a turn signal.41 The officers contacted a nearby uniformed patrol officer and asked him to stop the vehicle for the traffic violation. After the driver gave consent to search, the patrol officer found three “brick-like objects” containing over 400 grams of cocaine.42

Just like turn signals, motorized vehicles have been equipped with speedometers for over 100 years. The Oldsmobile Runabout, released in 1901, was the first automobile line equipped with a mechanical speedometer.43 However, when it comes to monitoring speed, some drivers are just not able to pay attention, and inattentiveness leads to traffic stops and lost prod­uct. In Madden v. State,44 an officer stopped two vehicles that were traveling together for speeding. The first was traveling 61 mph and the other was traveling 63 mph in a 55 mph construction zone on Interstate 10 in Harris County.45 A subsequent search, after a K-9 unit alerted on both vehicles, revealed a Rubbermaid container filled with both dog food and a book bag with three bricks of cocaine inside.46 In hindsight, perhaps packing the drugs in dog food was not the best choice, given the use of drug-detecting dogs. Regardless, whether “Fido” alerts to the drugs or his potential supper, the merchandise will most likely be found and confiscated, a fate you are trying to avoid.

Along with failing to use turn signals, some drivers are adverse to using seat belts. On January 1, 1968, Congress required all vehicles (except buses) to be fitted with seat belts in all designated seating positions.47 Mandatory seatbelt use by front-seat passengers was instigated in Texas in 1985, and in September 2010, all passengers inside a motor vehicle had to be secured by a safety belt, regardless of age or the location of the seat.48 A driver not wearing a seatbelt can easily lead to a traffic stop and confiscated product. In United States v. Baker, two Beaumont police officers were patrolling Interstate 10 when they saw a white Dodge and noticed that the passenger was not wearing a seat belt.49 After stopping and searching the Dodge, officers found a 5.5 pound brick of marijuana.50 Therefore, an act (buckling a seat belt) that would have taken just a few seconds to complete ultimately cost a supplier his merchandise.

Finally, make certain that your drivers understand that the lines on the road are for driving between, not over. Many a load of cargo has been lost due to drivers crossing the fog line or the center line. In United States v. Escalante, 20 kilos of cocaine was seized because the driver crossed “the lane divider lines two or three times.”51 Similarly, in Johnson v. State, crack cocaine was seized where the driver of a Dodge truck failed to maintain a single lane “when its tires crossed over the center dividing line of the highway.”52 As Ricky Van Shelton said, “Keep It Between the Lines.”53

V. Behavior After Traffic Stop

CHEECH (passenger): Where’d you learn how to drive, man?
CHONG (driving): We got stopped by the cops. I don’t have a license.
CHEECH: Why didn’t you tell me that? What are we going to do?
CHONG: Change places with me. I don’t think he’s seen us.
CHEECH: No, no. Sit down.
CHONG: I’ve got my leg caught.
CHEECH: Man, like, get over, man.

Police officer arrives at vehicle window to find Cheech in the driver’s seat with Chong sitting on his lap, smiling sheepishly.54

Assuming your driver cannot transport the product without committing one of the hundreds of potential traffic violations, and he is unlucky enough to be stopped, law enforcement will most likely begin looking for behavior, such as the above furtive movements, that will perhaps give them reasonable suspicion to prolong the stop and ultimately search the vehicle. The most prevalent behavior cited by officers is nervousness by the driver and/or occupants.55 While nervousness, by itself, will not support reasonable suspicion,56 nervous behavior when coupled with other factors can lend support for continuing the detention. Below is a small sample of Fifth Circuit and Texas cases where ner­vousness, when combined with other factors, provided a reasonable suspicion for the officers to prolong the traffic stop and ultimately confiscate product.

  • Madden v. State, 242 S.W.3d 504, 516–17 (Tex. Crim. App. 2007) (nervousness was not “critical” where presence of two Florida “drug convoy” cars, diversionary tactics of one driver, overdue rental car, and inconsistent stories about where the driver had been, for how long, and why, provided sufficient reasonable suspicion to detain the driver);
  • United States v. Fishel, 467 F.3d 855, 856 (5th Cir. 2006) (when asked for consent to search vehicle, driver’s “legs seemed to fail and he had to brace himself against his vehicle; he then changed his story of ownership and said that he could not give consent to search the vehicle because it did not belong to him”);
  • But see Parker v. State, 182 S.W.3d 923, 924 (Tex. Crim. App. 2006) (“slightly nervous” driver, rental car not in driver’s name, fast food wrappers in the car but no visible luggage, and round-trip between Dallas and Houston, K-9 search—motion to suppress granted and affirmed by Court of Criminal Appeals even though driver not listed on car rental agreement as driver);
  • United States v. Brigham, 382 F.3d 500, 515 (5th Cir. 2004) (drivers not listed on rental agreement, nervous behavior (hands were shaking), lack of eye contact by individuals, and conflicting stories about their arrival time in Houston and who they had visited there supported reasonable suspicion);
  • United States v. Henry, 372 F.3d 714, 715–16 (5th Cir. 2004) (driver’s “extreme” nervous behavior, repeating officer’s questions before answering, inability to detail his travel plans, driver’s inability to explain how he knew the passengers, driver’s baggy clothes, driver’s fake iden­ti­fi­ca­tion, and passenger’s nervousness and lack of “even rudimentary knowledge about the purpose of the trip” gave officer “articulable reasonable suspicion of illegal activity”);
  • United States v. Grant, 349 F.3d 192, 198 (5th Cir. 2003) (driver “appeared nervous” and passenger “had been fumbling around in the passenger seat,” inconsistent stories about their stay in Houston, and driver’s “admission that the two men had smoked marijuana in the car created reasonable articulable suspicion”);
  • United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (Driver “appeared very nervous, was hesitant in answering the most basic questions about his travel plans, lied about why he didn’t have a driver’s license, was 500 miles away from the road leading to his claimed destination, was on a road associated with drug trafficking, and had been arrested for drug trafficking in the past. These facts together gave rise to a reasonable articulable suspicion that Gonzalez was involved in drug trafficking.”).

On the other hand, if the driver remains calm, that fact can be used as evidence that the driver’s consent to search was freely and voluntarily given. In United States v. Brown, the defendant contended that the search of his vehicle was unconstitutional because his consent to the search was not voluntary.57 The court disagreed, citing the following items supporting a finding of voluntariness: 1) the driver was “calm and cooperative” when speaking with the officer; 2) driver gave consent approximately one minute after he exited the vehicle, thus he was not subject to “a lengthy interrogation or any coercive police tactics”; 3) officers testified that no threats, force, or intimidation were used to obtain the consent; and 4) the driver knew he could decline consent because he had done so twice before granting consent.58

In any case, if the driver is the nervous type, make certain that he or she wears a loose-fitting shirt, preferably with a high collar that will hide the neck area. As an indication of nervousness, officers are becoming more adept at seeing throbbing neck arteries or veins59 and/or hearts beating through tight shirts.60 Just recently, in United States v. Pena-Gonzalez, the Fifth Circuit found reasonable suspicion based, in part, on the officer observation of the driver’s “carotid artery visibly puls[ing].”61

If you use multiple individuals in one vehicle to transport the product, it must be stressed that they GET THEIR STORIES STRAIGHT! Where are they going? Where have they been? How long were they there? What did they do? Who did they see? Where did they stay? Who did they stay with? While inconsistent stories between a driver and a passenger may not, by itself, support a reasonable suspicion of drug trafficking,62 if the inconsistent stories are coupled with other factors, then the officer can prolong the stop, which could be detrimental to your supply chain. For instance, in United States v. Shabazz, the officers questioned the driver and passenger (Parker) individually after a traffic stop for speeding.63 The driver stated that he and Parker had been visiting Parker’s sister in Houston and they had stayed there for a week, since the Fourth of July. Parker, on the other hand, said that they had only been in Houston since the eighth, which was just two days prior to the stop.64 After the driver gave oral and written consent, the officers found 300 grams of crack cocaine and over 100 grams of powder cocaine.65

VI. Contents of the Vehicle in Plain Sight (or Plain Smell)

Law enforcement officers have cited a litany of seemingly innocuous items seen in plain sight inside a vehicle in an attempt to bolster reasonable suspicion. These items include: 1) fast food wrappers and no visible luggage;66 2) maps;67 3) two shirts hanging in the rear passenger compartment, a hygiene bag on the back seat, and the car’s clean interior;68 4) body odor emanating from the vehicle, the unkempt condition of the vehicle, and the presence of food wrappers, soda cans and cooler;69 5) multiple air fresheners, Pancho Villa and St. Jude symbols on the driver’s key chain, a large number of bumper stickers supporting law enforcement, and three rosaries hanging from the rearview mirror;70 6) multiple cell phones;71 and 7) odor of dryer sheets and mothballs.72 Therefore, keep the vehicle interior clean, take a shower, profess no religious affiliation, and go easy on the air freshener.

VII. Request to Search/Consent

As a last line of defense in protecting the merchandise, drivers should be instructed that under no circumstances are they to give consent to search the vehicle. No matter how well the merchandise might be concealed, it will be found. Hidden in the air conditioner vents? Found!73 Stashed in a secret compartment on the firewall, under the windshield? Found!74 Concealing $502,020 in a cavity behind the speakers of Freightliner tractor-trailer? Found!75 The bottom line: Consent equals lost merchandise, which is bad for business.

The typical encounter happens something like this:

OFFICER: I’m going to write you a warning for [fill-in-the-blank traffic violation].
DRIVER: Thank you.
OFFICER: By the way, we are performing a drug interdiction exercise. Do you mind if I ask you a few questions?
OFFICER: Are you carrying any illegal drugs or large amounts of money in your vehicle?
OFFICER: Do you mind if I search your vehicle, or do you mind if I run my dog around your vehicle.

With a well-trained driver, which you should have done before he leaves with your product, the above scenario should happen something like this:

OFFICER: I’m going to write you a warning for [fill in the blank traffic violation].
DRIVER: Thank you.
OFFICER: By the way, we are performing a drug interdiction exercise. Do you mind if I ask you a few questions?
DRIVER: Yes, I mind. Am I free to go?
OFFICER: Are you carrying any illegal drugs or large amounts of money in your vehicle?
DRIVER: No. Am I free to go?
OFFICER: Do you mind if I search your vehicle, or do you mind if I run my dog around your vehicle.
DRIVER: Yes I mind, or no you many not run your dog around my vehicle. Am I free to go?

If your driver responds in this way, it might cause the officer to think twice about prolonging the stop and searching the vehicle, and that is the result you want.

VIII. Conclusion

To sum up, to increase the odds of getting your merchandise to its final destination, follow these simple rules:

  • Make sure the vehicle is in “tip-top” condition;
  • Stress that the driver must obey ALL traffic laws;
  • Do not plaster the vehicle with bumper stickers supporting law enforcement;
  • Do not have Pancho Villa and St. Jude symbols on the driver’s key chain;
  • Do not have rosaries hanging from the rearview mirror;
  • Do not have open maps and/or fast food wrappers visible in the vehicle;
  • Do not overdo the air fresheners or dryer sheets or moth balls;
  • If stopped, the driver must not be nervous, but he should not be too calm either; he should make eye contact at all times; he should wear a loose-fitting shirt that hides his neck; he should not make any furtive movements;
  • If more than one driver is used, make sure they have their stories straight;
  • If the driver’s story includes a claim that he is on vacation, put a suitcase in the back seat; and
  • Do not give consent to search.

Following these guidelines is no guarantee that your merchandise will safely reach its destination. However, if you adhere to the suggestions contained herein, your chances of successfully getting your product to its destination should be greatly enhanced. Or, perhaps you might just want to find another way to make a living. Long prison sentences and forfeiture of property may not be worth the risk. Maybe there is a hedge fund that needs someone to sell derivatives to unsuspecting buyers. Those guys never go to prison!


1. “Drug traffickers use various types of vehicles to conceal their contraband, ranging from nondescript cars, commercial trucks, vans, and tractor-trailers to the popular minivans driven by ‘soccer moms.’” See Dept. of Justice Microbulletin, Vol. XXXVI, No. 12, December 2003, available at: (last visited Aug. 28, 2015).

2. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3. See United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).

4. Id.

5. See United States v. Cavitt, 550 F.3d 430, 435–436 (5th Cir. 2008).

6. See, e.g., United States v. Zamora, 661 F.3d 200, 207 (5th Cir. 2011) (missing front license plate and canceled rear license plate justified traffic stop).

7. United States v. Cavitt, supra, 550 F.3d at 436 (citing United States v. Brigham, supra, 382 F.3d at 510).

8. Id. (quoting United States v. Brigham, supra, 382 F.3d at 510).

9. Id.

10. United States v. Santiago, 310 F.3d 336, 341–342 (5th Cir. 2004) (internal citations omitted).

11. United States v. Cavitt, supra, 550 F.3d at 436 (citing United States v. Santiago, supra, 310 F.3d at 342.

12. United States v. Cavitt, supra, citing United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006).

13. United States v. Cavitt, supra, 550 F.3d at 437–438; see also United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”’”).

14. Rodriguez v. United States, ___U.S.___, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015), quoting Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

15. Id. at 1612.

16. Id. at 1613.

17. Id. at 1616.

18. “Pulp Fiction” (Miramax 1994).

19. 703 F.3d 828 (5th Cir. 2013).

20. Id. at 831.

21. 275 S.W.3d 533, 535 (Tex. App.—Texarkana 2008, no pet.).

22. Id.

23. 255 S.W.3d 302, 305 (Tex. App.—Eastland 2008, no pet.); see also United States v. Castillo, 76 F.3d 1114, 1117 (10th Cir. 1996) (officer stopped driver for window tint violation; subsequent consent search revealed 105 pounds of marijuana and loaded .45-caliber handgun).

24. Id. at 307.

25. See United States v. Khanalizadeh, 493 F.3d 479, 481 (5th Cir. 2007).

26. Id. at 482.

27. See Guajardo v. State, 109 S.W.3d 456, 458 (Tex. Crim. App. 2003) (license-plate light on car not working justified traffic stop).

28. See United States v. Gallo, 927 F.2d 815, 817 (5th Cir. 1991) (rear license plate obstructed with mud and driver speeding justified traffic stop). An expired inspection sticker can also lead to trouble for drivers. See Myers v. State, 203 S.W.3d 873, 878 (Tex. App.—Eastland 2006, pet. ref’d); Cabrales v. State, 932 S.W.2d 653 (Tex. App.—Houston [14th Dist.] 1996, no pet.).

29. 375 S.W.3d 294 (Tex. Crim. App. 2012).

30. Id. at n. 3, citing Tex. Transp. Code § 547.322(d) (“A taillamp shall emit a red light plainly visible at a distance of 1,000 feet from the rear of the vehicle”).

31. Id. at 297.

32. Id. at 296. See also United States v. Lopez-Valdez, 178 F.3d 282, 284 (5th Cir. 1999), where a trooper stopped a car with a taillight that had an inch-long, rectangular-shaped piece of the taillight lens missing. Because the broken taillight under these facts did not constitute a traffic violation, the officer did not have authority to stop the vehicle. Id. at 284, citing Vicknair v. State, 751 S.W.2d 180 (Tex. Crim. App. 1986.).

33. Id. at 306–07.

34. “Dumb and Dumber” (New Line Cinema 1994).

35. 986 S.W.2d 259, 260 (Tex. App.—Texarkana 1998, pet. ref’d) abrogated on other grounds by State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). While the issue in McCray involved a DWI and not drugs, a traffic stop occured nonetheless.

36. Tex. Transp. Code Ann. § 545.062.

37. 261 F.3d 506, 508 (5th Cir. 2001).

38. Id. at 508.

39. Llewellyn Hedgbeth: “Turn, Turn, Turn: A History of the Turn Signal,” available at (last visited Aug. 28, 2015).

40. Id.

41. 232 S.W.3d 55 (Tex. Crim. App. 2007).

42. Id at 57; see also State v. Elias, 339 S.W.3d 667, 669 (Tex. Crim. App. 2011) (officers found 2000 pounds of marijuana after conducting a traffic stop of the van “[b]ecause it failed to signal a right turn from the stop”). Failing to use a turn signal does not always constitute a traffic violation. For instance, in Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012), the evidence was suppressed due to a lack of traffic violation where the driver did not signal “when the lane in which he was driving on a laned roadway merged with the lane to his left.” In United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998), there was no traffic violation where the driver left his turn signal on while proceeding through an intersection, but did not turn left nor change lanes to the left.

43. “How Products Are Made,” available at (last visited Aug. 28, 2015).

44. 242 S.W.3d 504, 505 (Tex. Crim. App. 2007).

45. Id. at 506.

46. Id. at 506–07. In United States v. Kye Soo Lee, 898 F.2d 1034, 1035 (5th Cir. 1990), the distributor lost a Ryder truck full of counterfeit Gucci baseball caps and Louis Vuitton handbags after the driver was caught speeding.

47. Seat belt legislation in the United States, available at (last visited Aug. 28, 2015).

48. “The Evolution of Seat Belt Laws in Texas,” available at (last visited Aug. 28, 2015).

49. 47 F.3d 691 (5th Cir. 1995).

50. Id. at 691–92; see also Hutch v. State, 922 S.W.2d 166, 169 (Tex. Crim. App. 1996) (Houston police stopped vehicle because neither driver nor passenger was wearing seat belt).

51. 239 F.3d 678, 679 (5th Cir. 2001).

52. 365 S.W.3d 484, 487 (Tex. App.—Tyler 2012, no pet.).

53. Columbia, Nashville 1990.

54. “Up in Smoke” (Paramount Pictures 1978).

55. A search on Westlaw revealed that since January 1, 2000, there were approximately 320 Fifth Circuit and Texas cases involving a traffic stop where nervousness was mentioned as one factor supporting reasonable suspicion. For all states and all federal courts, the number is over 2,400.

56. Wolf v. State, 137 S.W.3d 797, 800–801 (Tex. App.—Waco 2004, no pet.) (being nervous and overly cooperative is not a basis for reasonable suspicion).

57. 567 F. App’x 272 (5th Cir. 2014) (unpublished).

58. Id. at 278–280; see also Beach v. State, No. 13-03-280-CR, 2004 WL 1834264, at *2 (Tex. App.—Corpus Christi 2004, pet. ref’d.) (although driver appeared calm, driver’s excessive speed (93 mph in a 65 zone) and intoxicated passenger repeatedly opening and closing the pickup door as if he was trying to throw something out supported prolonging traffic stop for K-9 search).

59. Wade v. State, 422 S.W.3d 661, 670–671 (Tex. Crim. App. 2013) (game warden noticed that the defendant was nervous and “his vein in his neck [was] beating”).

60. Meeks v. State, 692 S.W.2d 504, 507 (Tex. Crim. App. 1985) (officer observed that passenger was extremely nervous, “with a rapid heart beat visible through his tight shirt”).

61. 2015 WL 4317820, at *1 (5th Cir. 2015).

62. See United States v. Santiago, 310 F.3d 336, 338–339 (5th Cir. 2002).

63. 993 F.2d 431, 433 (5th Cir. 1993).

64. Id. at 34.

65. Id. See also Hill v. State, 135 S.W.3d 267, 268–69 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d.) (driver’s and passenger’s inconsistent stories about buying trucks in Houston and where they had stayed the night before were factors supporting reasonable suspicion).

66. Parker v. State, supra, 182 S.W.3d at 924.

67. United States v. Sierra, 294 F. App’x 884, 892 (5th Cir. 2008) (driver refused to explain why he had maps of McAllen-Edinburg area when it was not on his expressed itinerary).

68. See United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011).

69. See United States v. Smith, 263 F.3d 571, 594 (6th Cir. 2001).

70. See United States v. Pena-Gonzalez, 2015 WL 4317820, at *1 (5th Cir. 2015).

71. See Acosta v. State, 429 S.W.3d 621, 623 (Tex. Crim. App. 2014).

72. See Moody v. State, 2009 WL 2605904, at *1 (Tex. App.—Corpus Christi 2009, pet. ref’d.).

73. See United States v. Shabazz, supra, 993 F.2d at 434 (Officer discovered that the screws in the front driver’s side air conditioner vent had shiny nicks on them and appeared to be loose. Upon loosening the screws, the vent fell open and a number of plastic baggies, which contained over 300 grams of crack cocaine and over 100 grams of powder cocaine, fell out.).

74. See United States v. Banuelos-Romero, 597 F.3d 763, 765 (5th Cir. 2010) (trooper noticed fresh black adhesive on windshield and saw “scarring on screws holding a plastic piece between the hood and windshield, which would have to be removed to replace the windshield”).

75. Acosta v. State, 429 S.W.3d 621, 623 (Tex. Crim. App. 2014).

Do Not Mess With Papa’s Daughter

As the father of a young family, in the early years of my practice, I did not have a lot of time to devote to pro bono work. A sole practitioner with relatively short roots in the community (five years, when I began my practice, nearly four of which were spent in night law school) has to keep the nose to the grindstone and shoulder to the wheel.

I did make myself available to the local ACLU as a cooperating attorney in criminal cases, which is to say they could call me when a complaint was received that someone’s rights were being denied in the context of a criminal prosecution, and I would give them my opinion as to whether a legitimate complaint was being brought. Occasionally, I would render some assistance to the complaining party, when appropriate.

One Friday afternoon, I received a call from the person who manned the ACLU phone, advising that there was a man in the office who was scheduled to go to trial in a nearby town, Kerrville, on Monday.

He had hired a Houston lawyer, but the lawyer had never yet appeared in court, and the judge had told the man he was going to trial on a charge of attempted murder on the following Monday, whether his lawyer showed up or not.

In view of the apparent urgency of the situation, I had the man sent over to my office for an interview. When he arrived, I had him flesh the story out a bit. I learned that someone had recommended the Houston lawyer when the trouble first arose, and he had paid the lawyer’s retainer in full. (Why he chose a Houston lawyer, or why the Houston lawyer accepted the case, was not immediately apparent, since the defendant was not a wealthy man and Houston is 250 miles from Kerrville.)

Thereafter, he learned that the lawyer had no office other than his apartment and was virtually never home. Worse, when he had reached the lawyer, late at night, the lawyer was inevitably intoxicated.

Despite being advised of the prior settings of the case, the lawyer had never appeared. The judge had made it very clear the last time the case was set that he expected the defendant in court, with a lawyer, the next time the case was set because he intended to try the case.

I did not, at that time, know the judge in the case, Judge Bob Barton, nor did I know anything of his reputation, save two things: He was the former district attorney in the area, and was the author of a peace officer’s manual that was very widely used by Texas lawmen as a quick field reference on the criminal laws of the state.

It was thus clear that Judge Barton was a solid law-and-order man. What I did not then know was that he was (and is) an extremely fair-minded scholar of the law who would never have abused the defendant or his rights; he had simply let the defendant know that it was time to get on with the case, with the lawyer he had hired or someone else.

I promised the man I would be in Judge Barton’s district courtroom the following Monday, in case his lawyer again failed to appear. He thanked me profusely and left. I did not even get into the facts of the case with him.

I drove to Kerrville, a distance of about 60 miles, on Monday morning, arriving several minutes before the docket was called at 9:00 a.m. I located the defendant and learned from him that the Houston lawyer had not appeared.

When the case was called, I stood and announced to the Court that I was not the attorney of record in the case, that I did not know the attorney of record, but knew that he had never appeared in court. I was there, I told the judge, more or less as a friend of the court and to give the defendant the comfort of having someone stand beside him.

Now, what I did not realize was that the lawyer had not only never appeared in the court; he had never filed any documents with the court indicating that he represented the defendant. Thus, though the defendant had a just grievance against the man, and the right to sue for the return of his money, the court really could not require him to handle the case.

Had I known Judge Barton then as I do now, I would have realized that he would have gotten the lawyer in court, even if he had to send the sheriff to Houston for him, if the man had ever appeared as attorney of record in the case.

Judge Barton was glad to see me; at least, he said he was, and I believed him when he said it—I still do. Since I was the only lawyer who had appeared before the court in behalf of the defendant, he was, he said, appointing me to represent the defendant.

He would, unfortunately, be unable to compensate me for doing so, since the defendant had made no affidavit of indigency. Nonetheless, he was sure that as an officer of the court, I would be pleased to be of assistance to the defendant and court alike by performing that service.

I thanked the judge for his faith in my prospective performance, but wondered whether that would be quite appropriate since, as he pointed out, the man had made no affidavit of indigency and I could not charge him a fee, since he had been sent to me by the ACLU.

Before the judge could speak, the defendant volunteered that although he had originally had the money, he did not have it anymore; the Houston lawyer got it all. He could come up with some money, given time, but had no funds with which to hire a lawyer at that time.

The judge had the solution, satisfactory from his perspective, ideal from the defendant’s perspective, and clearly without option from mine (having shown up in court, I was very clearly going to be the lawyer, one way or another).

At the conclusion of the case, he would decide what he would have paid a court-appointed lawyer to handle the case, and the client could pay me that sum.

I was beginning to admire Judge Barton’s style, though I was not really thrilled about his ruling. Moreover, I had gleaned just enough of the facts of the case in my discussions with the defendant to realize the case promised to be unique.

I acquiesced, raising no protest. Judge Barton, learning that I had only learned of the existence of the case late the previous Friday, graciously agreed to reset the case to give me time to prepare.

The citizen accused (they quit being “defendant” when I got hired or appointed to represent them) and I went across the street to a coffee shop to begin to get acquainted and so he could flesh out the facts of the case for me.

He was, it seemed, the father of several children, the youngest of whom was a 16-year-old girl. He and his wife were people in their late 50s, I judged, and found themselves more than a little challenged by the special problems this young girl presented.

She had always been a good girl, helping her mama around the house, doing fine at school, and working part time as a waitress at the little cafe up the street from her father’s garage, which was right next door to the house.

Then she had met that young man, and nothing had been the same since.

They had heard that the man was an ex-convict and an alcoholic (I never did learn for sure whether either of those things were true), and they had forbade the daughter seeing him.

They learned that he was coming around to see her at the cafe, and they made her quit her job. Almost predictably, soon thereafter the girl ran away. She returned after a few days, saying that they had gone to Mexico and gotten married.

The parents, of course, told her that no such purported marriage was legal, she being 16 and all, and that she was not only staying with them, but she was not to leave the house.

A few days later, the girl again disappeared. After several days, they were able to determine that the young man (who was about 10 years older than the girl) had also left town.

They did not know what to do or where to turn. They had no idea where the two had gone. Finally, they reported the daughter to juvenile authorities as a runaway and filed what amounted to statutory rape charges against the young man.

After a time, the police got a lead that the young couple was in Missouri.

With the assistance of Missouri authorities, both the girl and the man had been picked up. She was being held in a juvenile detention facility as a runaway, and he was in jail on a fugitive warrant from Texas, charging him with statutory rape.

Mama and Papa were advised and they drove to Missouri. There, they visited with both the daughter and the young man. They had realized, they told the young people, that their previous approach of forbidding the girl to see the young man was not going to work, and they had a new approach.

If the girl would agree to come home, they said, and if the young man would agree to go through a proper courtship (I never asked to have that defined), and if they still wanted to marry when the girl turned 17, some six months down the road, they could marry, with her parents’ blessing.

The young people readily agreed, since part of the consideration was the withdrawal of the criminal complaint against the young man.

Mama and Papa took daughter home, and criminal charges against the young man were dismissed.

It was nearly two weeks before the daughter took off again.

This time, she and the young man stayed in Kerr County on a ranch.

When Papa learned where they were and went to the ranch, he was greeted by another young man, whom he did not know, who brandished a weapon and advised him he was trespassing. He was not welcome, the young man said, and would be shot if he did not leave or trespassed again.

Papa went home and told Mama what had happened. They were both terribly upset and did not know what to do. After a day or two, though, they remembered that the girl had tearfully told them, during an earlier confrontation, that the young man was not what they thought, that in fact he was very religious and could be found at the Church of Christ any time the doors were open.

They determined to go to the church just before Wednesday-night prayer meeting and attempt to talk to their daughter there.

When Wednesday night came, they got in the old wrecker and drove over to the church.

Not many people had arrived when they did, and the ones they had come to see were not among them.

They pulled into a parking place and waited. Quite a number of cars arrived while they were there, and people were wondering who that pair sitting in the wrecker in the parking lot were, and why they did not get out and come on in.

After some little while, the young people drove up. They parked just up the row, toward the front of the church, and began to exit the car.

When they did, Mama and Papa exited the wrecker. At that point, the daughter saw them, yelled, and began to run toward the front of the church.

Mama kept on going towards the front of the church, but Papa, remembering his experience at the ranch and having noted the looks members of the congregation had been giving them, decided he might need some help. He reached behind the seat of the wrecker and took one of two deer rifles down from the gun rack in the rear window.

As he got the gun and started around to the front, word that there was a man in the parking lot with a gun spread quickly.

Naturally enough, there was a great deal of alarm. As Papa was about to get to the corner of the building, one of the men in the congregation “blind-sided” him, knocking him to the ground and taking away the rifle.

The man scurried to the front, leaving Papa somewhat dazedly looking for his glasses in the grass. About the time Papa found the glasses, he heard a shot go off. He immediately thought of his wife, and was scared to death that somebody had shot Mama.

He went back to the wrecker, opened the door, and grabbed his lever action 30/30 from the gun rack.

Jacking a round into the chamber, he hurried around to the front of the church. When he arrived there, Mama, daughter, and young man had all run inside the church. As he did not see Mama, his fear for her safety continued unabated. He made for the front door. As he moved toward the front door, the preacher and a group of the elders loomed before him, blocking his way. He shouted at them to get out of his way, but they vowed he would not pass.

He was standing there with the deer rifle poked into the preacher’s stomach when the sheriff’s deputy drove up. Mama came out about then, he realized she was okay, and he laid down the rifle.

He was arrested for assault on the preacher and taken to jail. He made bond early the next morning.

Talking with Mama after his release, he learned for the first time that the gunshot he had heard had been the sound of a round which was accidentally discharged into the roof of the church porch when someone was attempting to unload it.

For reasons I have never understood, the indictment returned by the grand jury accused him of the attempted murder of the man who took the first gun away from him. Since he had never even seen that man before the man took the gun away from him, that seemed to be a bit of a reach. In fact, I saw no way in which the district attorney could prove the case.

I learned that the case had become something of a political problem to the DA. Because of the delays occasioned by the Houston lawyer not coming to court, the case had taken a while to come to trial. Some of the church leaders had been by the DA’s office a couple of times to find out what was going on with the case and to assure him of their continued concern. Each visit had concluded with a prayer that justice would be done in the case. The DA was going to have a hard time “dealing” this one out.

That meant I had a problem too. The case was going to have to go to trial, and the event had spread quickly throughout the community, poisoning the pool of potential jurors. Though I felt the DA would have a hard time legally, I had real reservations about whether a fair jury could be selected.

It was at this point I began to really ask around about Judge Barton and learned that his reputation for toughness was matched by his reputation for fairness.

So it was that I recommended to my client (for one of very few times in my practice) that he waive a jury and try the case to the court.

We did, and the legal problems in the case were as apparent to Judge Barton as they had been to me. He acquitted my client of attempted murder and convicted him of reckless conduct, a misdemeanor.

Since we have a statute making it reckless conduct to knowingly point a loaded weapon in the direction of another, that seemed reasonable enough to me, though I had argued that it was not what we lawyers call a “lesser included offense” of attempted murder—lesser yes, included no.

I still think it was a reasonable call on Judge Barton’s part. He assessed a $500 fine and 10 days in jail. He credited Papa with the time already spent in jail and said he could serve the rest on weekends.

Judge Barton said he would have paid me $500 if I had been court-appointed in the case. I thanked him for his courtesies, shook hands with Papa, and headed back to San Antonio. I never talked to Papa again and never saw the $500.

Several years later, I received a call from one of Papa’s sons. Papa had died, and it seems he had left the lever-action 30/30 to me. It had special sentimental value to the family, he said, and he wondered if I might be willing to just let them keep it. I thought about telling him I would be happy to let them have it if they would just pay the $500 fee Judge Barton set, but did not.

“Sure,” I said. “Keep it. It means something to the family.”

January/February 2016 Complete Issue – PDF Download



22 | The Michael Morton Act’s Undiscovered Country – By Keith Hampton
28 | The Fourth Amendment and Traffic Stops: A Completely Fictitious, Tongue-in-Cheek Guide to Being a Successful Drug Courier – By Todd Duncan
36 | Do Not Mess With Papa’s Daughter – By Judge Wayne Patrick Priest

7 | President’s Message
9 | Executive Director’s Perspective
12 | Ethics and the Law
15 | Off the Back
17 | Federal Corner
20 | Said & Done

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

President’s Message: Discovery – By Samuel E. Bassett


As a law student, I had a front row seat at the Michael Morton trial. I watched as two of my mentors and then employers—Bill Allison and Bill White—fought during the Morton murder trial in the late 1980s. I was a green law clerk, watching with my eyes wide open. A constant frustration throughout the case was the deep suspicion that evidence was being withheld, but there was no way to know for sure. Never was this more apparent than when the state declined to call the chief investigative deputy (Don Woods) and instead called legendary Williamson County Sheriff Jim Boutwell. On cross-examination, Boutwell was asked if he had prepared a report, if he had taken notes, if he had made sketches… anything? His repeated answer: “No,” except for one small page of limited notes. It took decades to discover what was withheld. That story is now well known. Key pieces of exculpatory evidence were found in the state’s file, items NEVER given to the defense. I remember Bill Allison telling me, “The biggest problem we have is that people don’t want to believe that random intruders can commit murder.” It turns out, Bill was exactly right. Three decades later, Michael is free and a random intruder is in prison for the brutal murder of Christine Morton.

Fast forward 30 years and we now have numerous instances of prosecutorial conduct exposed. Ken Anderson (the Williamson County District Attorney who prosecuted Morton) is now without a law license and has a conviction as a result of the misconduct. Charles Sebesta has been disbarred after a State Bar evidentiary panel found that he submitted false testimony and withheld favorable evidence in gaining a conviction against Anthony Graves. John Jackson, the former prosecutor in the case of State v. Cameron Todd Willingham, is facing possible disciplinary action for failing to disclose evidence of a promise of benefit to a snitch who testified in Willingham’s trial, which resulted in a conviction and execution despite the use of dubious “scientific” testimony regarding the alleged arson. Kelly Siegler, a legendary prosecutor with a strong media presence, now faces possible disciplinary action in State v. David Temple, in which she is accused of withholding favorable evidence from the defense in a legendary trial court battle with Dick DeGeurin. In fact, Retired District Judge Larry Gist made a finding on habeas that Siegler withheld facts during her prosecution of the case that would have assisted him in preparing a defense (kudos to Stanley Schneider and Casie Gotro for their work on the habeas).

Moving forward on these and other cases, the question becomes:

What is the real impact of these cases on the State Bar of Texas and disciplinary enforcement of prosecutors who fail to disclose exculpatory evidence or other evidence required under Brady and/or Article 39.14 of the Code of Criminal Procedure?

We may have the beginning of an answer in William Allen Schultz v. Commission on Lawyer Discipline (December 17, 2015). In that case, the Board of Disciplinary Appeals held that Article 3.09(d) of the Texas Discplinary Rules of Professional Conduct actually imposes a duty on all prosecutors that may very well exceed the limits of Brady. One argument from the prosecutor in the case, Mr. William Allen Schultz of Denton County, is that a prosecutor’s duty to disclose evidence to the defense should be limited to the due process requirements under Brady so as to avoid “multiple confusing standards.” The Board responded by writing, among other things:

We do not find this argument persuasive, particularly because of the recent amendment to Texas criminal procedure that now mandates the same standard for disclosure as Rule 3.09(d): Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. Tex. Code Crim. Proc. Ann. art. 39.14(h) (West Supp. 2014) (effective January 1, 2014). Although art. 39.14 is not dispositive in this case, its promulgation refutes Schultz’s position that imposing a broader duty on prosecutors to disclose information to the defense than Brady creates an unworkable burden. That “unworkable burden,” if there is one, already exists.

In the Schultz case, the prosecutor failed to disclose to the defense, in an Aggravated Assault prosecution, that the complaining witness had stated that “I could not see his face” when asked to provide an eyewitness identification regarding her attacker, an estranged husband.

Do I believe that every prosecutor who makes a mistake should be disbarred? No. Do I believe that prosecutors who repeatedly commit violations of the rules of fair play in discovery should be disciplined? Yes. The vast majority of prosecutors I deal with take their duties on this issue very seriously, and district attorneys across the state are revamping their methods of providing discovery thanks to the revelations on the Morton case and other cases. We have come full circle on this important issue. However, we must be careful not to abuse the process of filing complaints against prosecutors or we run the risk of losing ground in this ongoing battle.

Executive Director’s Perspective: Board Motions – By Joseph A. Martinez


The TCDLA Board met on December 5, 2015, in Austin. The following motions were made and action taken:

MOTION: September 12, 2015, Minutes
Motion to adopt the minutes from the TCDLA Board Meeting in Dallas on September 12, 2015, made by Mark Snodgrass, seconded by Susan Anderson—motion carries.

MOTION: TCDLA DWI Trial Lawyers Certificate
Anyone who attends five TCDLA-sponsored DWI seminars within two years will receive a TCDLA DWI Trial Lawyer certificate. Motion made by Mark Thiessen, seconded by Keith Hampton—motion carries.

MOTION: Allow Corrections Committee to get the word out and work with the board to get training in place, made by Dave O’Neil, seconded by Craig Jett—motion carries.

MOTION: Voting Privileges of Past Presidents
A motion was made to leave bylaws as is, wherein all past presidents retain voting privileges. Motion made by John Convery, seconded by Laurie Key—motion carries (1 abstained).

MOTION to adjourn meeting at 12:22 pm
Made by David Ryan, seconded by Susan Anderson—motion carries.

Special thanks to Justin Kiechler, Frank Sellers, and Philip Wischkaemper (all of Lubbock), course directors for the 36th Annual Prairie Dog seminar, held in Lubbock in January. We thank Frank Sellers, president of Lubbock Criminal Defense Lawyers Association (LCDLA), for once again allowing TCDLA to co-sponsor their CLE, held at the Texas Tech School of Law. Thanks to everyone’s help we had 197 attendees.

 Special thanks to Dean Darby Dickerson of the Texas Tech School of Law for allowing TCDLA and LCDLA to hold the seminar at the law school. Special thanks to Professor Pat Metze, who serves as our liaison with the law school. Special thanks to Michael King, course director for the Federal Law seminar held at the Texas Tech School of Law. Thanks to his efforts we had 51 attendees. Special thanks to Chuck Lanehart and Philip Wischkaemper, our course directors for the Nuts and Bolts seminar also held at the Texas Tech School of Law. Thanks to their efforts we had 83 attendees. Unfortunately the very cold weather and snow prevented the Outlaw Grillers from doing their annual barbecue meal.

Thanks to Constance Filley Johnson and Jani Maselli Wood, our course directors for the Upholding Justice One Client at a Time held in Victoria in January. Thanks to everyone’s help we had 28 attendees.

Thanks to Rick Wardroup (Lubbock), our course director for the CDLP Capital Litigation/Mental Health CLE in Houston in February. Thanks to everyone’s help we had 100 attendees. Thanks to David Ryan (Houston) for helping us get the word out through HCCLA.

Weren’t able to attend last year’s Rusty Duncan event? 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 (512-478-2514) 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 and jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: Don’t Take Your Guns to Town


If Wild Bill Hickok were walking down the streets of Houston or Abilene or any other place in Texas with his guns today, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license, but Wild Bill doesn’t carry his pistols in a holster; he carries them stuck in a sash wrapped around his waist. Too bad he didn’t understand the nuances of the new open carry law. But then, who does? Several months have passed since the law was signed, giving law enforcement time to study and prepare for a freedom not al­lowed in Texas since after the War Between the States. But there is significant controversy about the new open carry law.

Growing up in Abilene, we all watched John Wayne, Audie Murphy, Lash Larue, and other war and cowboy heroes—where the good guys fought for noble causes and always won the day. And once again we are returning to the days of wearing a holster on our hip. But it turns out carrying a gun is more dangerous than “The Duke” may have led us to believe. When real bullets fly, real lives are impacted in ways not illustrated on the silver screen.

Guns sales are at an all-time high. The murder rate has escalated in Texas and many other places. There were 283 murders in Houston in 2015, the last one in a hotel on the north side of town. Today, citizens are fearful about where our communities are headed. We all want to feel safe in our homes and when out in public. As a result, many law-abiding citizens are choosing to carry guns for protection.

All gun owners should know the power they have to do either good or harm with the weapons they carry—and the risk they take by carrying. Unless people have been in the military or worked in law enforcement, they may not be properly trained on how to defend themselves or even use a firearm. And they likely have not truly grasped the potential consequences of that act. We all want to protect our families, friends, other citizens, and ourselves from the bad guys, but before this happens you need to be prepared. Buying that new shiny pistol is exciting, but before you carry or shoot it, remember that pistol is a tool—a dangerous tool. Get the right kind of pistol. Study it, examine it, read the instructions, and practice safely with it before you start toting it around.

For your own safety, as well as others, you should understand how to care for your pistol. One of my gun-toting friends who usually carries a couple of pistols was bragging about being prepared. I asked him to let me examine the pistol he carried in his boot. It would not even work because it was so dirty. He was embarrassed. A retired Texas Ranger friend of mine who gave me his hideout gun showed me the one he now carried. He, too, was embarrassed as I pointed out to him it might shoot one time and no more because the slide was dirty. Recently in Abilene, some friends were showing off their barbecue guns, those shiny big guns they wear when having a cookout. One of them was fooling with his pistol and it accidentally went off. Luckily it did not kill one of them.

Today, the new law allows a person with a concealed handgun license to openly carry if it is in a holster. The Old West may have risen again, but the “basics” of carrying a gun will never be the same. With more freedom comes a greater responsibility to be well trained on handling and operating a weapon. It also comes with some legal risk to the carrier. The district attorney has graciously provided HCCLA an interpretation of what the law means. JoAnne Musick, as president of HCCLA, has provided us with the position of the defense bar. While they are similar in many ways, there is still some polite disagreement about what the new law means. Can a police stop you and ask to see your license? Yes! Should you show it to them? Yes! But what happens if you don’t? Well . . . It is a little unclear. This lack of legal clarification as to the law’s application is a problem, and it will be for your future clients. We will only know the answers when someone is arrested and judged on the facts of their situation. Be aware that someone will be the guinea pig on which this law is tried and those yet-to-be-determined answers are defined. That person may be your client.

As lawyers, what do we advise our gun-toting clients? Make sure that you have a good reason for openly carrying your shiny new pistol, and that you have a concealed handgun license if you intend to carry one. Be aware that you may be, and probably will be, a target for law enforcement to stop and ask you questions. When the police may ask you if you have a permit, be polite and tell them the correct answer. This is the moment where potential problems arise. Also be aware that if you are in the wrong place at the wrong time, an outlaw may try to shoot you first because you are openly carrying a pistol.

We do know that Penal Code 46.02 still remains the law and allows gun rights to those individuals who do not have a concealed handgun license. The revisions that took effect January 1, 2016, now state that a person commits an offense if the person intentionally, knowingly, or recklessly carries a handgun in a motor vehicle or watercraft that is owned or controlled by that person at any time if (1) the handgun is in plain view, unless the person is licensed to carry a handgun and the handgun is carried in a shoulder or belt holster, or (2) the person is engaged in criminal activity, or (3) the person is prohibited by law from possessing a firearm, or (4) the person is a member of a criminal street gang.

Also note that even with a license, gun owners can’t waltz into just anywhere without taking notice of the posted signs. Gun owners and business owners alike should be aware of Texas Penal Code 30.06, which details the requirements for signs businesses may display to prohibit guns on their premises. According to a “reliable and credible” law enforcement source who shall remain nameless for his own protection, many of the signs posted by business owners are not even effective as they do not comply with the code. This may save your gun-slinging client but not your gun-shy business owner. Make sure you have crossed all your t’s and dotted all your i’s before posting your sign and expecting it to be enforced.

AS WE ENTER THE NEW YEAR with the open carry law, there are several things to remember: safety first. A firearm is designed to kill. Yes, there are some people who shoot skeet or go to a gun range, but a firearm is designed to kill. If you have ever been in law enforcement as a licensed peace officer or in the military, you will know the consequences of weaponry ignorance. Firearms are not toys. They are designed to cause destruction of a target. And secondly, this new law could dramatically affect the status quo. Our clients need to understand they must make sensible decisions when choosing to carry. We know many of them will not. That is what keeps us in business. Still, we as lawyers are also in the law enforcement business. Our job is to make sure our clients are legally arrested and searched. This job is made more difficult now because no one knows for sure the details to this new law. Johnny cash sang a song, “Don’t Take Your Guns to Town”. I RECOMMEND YOU READ THE LYRICS OR LISTEN TO THE SONG before you take your guns to town. Think long and hard about the consequences.

Do you want to go away peacefully in the night or “die with your boots on”? Do you want to be judged by 12 or carried by 6?

“I have a very strict gun control policy. If there is a gun around, I want to be in control of it.”

—Clint Eastwood

“There are no dangerous weapons. There are only dangerous men.”

—Robert Heinlein

“A man’s rights rest in 3 boxes. The ballot box, the jury box, and the cartridge box.”

—Frederick Douglas

This is all very serious business, and when a shooting happens, many people may “beat the rap but not the ride.”

Off the Back: Safeguarding the Great American Experiment – By Stephen Gustitis


I’ve been remiss. Like my fellow defense attorneys, I habitually keep my head buried in court appearances, case law and statutes, cross-examination preparation, closing arguments, and customer service. I’ve been remiss because the daily grind has so easily diverted me from reflecting on a deeper meaning in this work. Namely, safeguarding the great American experiment. We protect individual liberty and freedom. Values our founding fathers determined were most vital to a free society. And, until a recent trip to our nation’s capital with my family, I failed to take stock of the sacrifices made to protect this experiment. What unfolded was a new and solemn awareness of the sacrifice free individuals have made to protect our representative democracy. I couldn’t help but desire that every criminal defense attorney share in this appreciation.

While riding the D.C. Metro Red Line into the city, we looked forward to three days of sightseeing. We anticipated visiting the Smithsonian Air and Space Museum, the National Museum of Natural History, and the National Gallery of Art. However, I was unprepared for our trip’s visceral impact. Maybe it was my age. Maybe it was watching my children get better acquainted with their country’s foundational principles. Maybe it was my calling as a lawyer. But beginning with the 12-minute U.S. Capitol building tour orientation movie, I was overwhelmed with gratification for our experiment in democratic self-governance. Our nation’s birth was called to mind at the Capitol building. Out of such different perspectives, out of such distinct personalities, out of so many free and fiercely independent people emerged but one country . . . one nation. Out of that independence flowed energy, ideas, and passionate differences. Differences resolved and common ground secured after consideration of many points of view. Creating a government of the people, by the people, and for the people.1 Where all voices were taken into account, not just those of the majority. And what was the price paid for becoming an independent people? The blood of soldiers and the sacrifice of families.

George Washington’s gallantry in leading his Continental Army to victory over the British opened the door for our great American experiment. Fittingly, the Washington Monument may be the most iconic structure on the National Mall. Its grandeur strikes one as timeless. Though recognizable from many areas of the city, there’s no call to ride the elevator to the top to fathom its grandeur. One need only stand at the base and look skyward to grasp the majesty of this marble obelisk towering almost 555 feet above the Mall. Even the Great Pyramid of Giza is shorter at 481 feet.2 The monument was completed in 1888 to commemorate our nation’s first president and his service as commander-in-chief. Though my children were content with slapping the monument’s foundation, I leaned back and strained to find the capstone profiled against a stunningly deep amethyst-blue sky. I couldn’t help but hold in regard the young lives given to secure the individual freedoms we work daily to defend.

As we moved to other memorials, each seemed to capture an ardent feeling or idea. The National World War II Memorial was no different. It evinced victory in a conflict of global proportions. Consisting of 56 granite pillars and 2 triumphal Atlantic and Pacific arches surrounding a 7.4-acre plaza and fountain, it was dedicated to Americans who served in the armed forces during World War II. Its expanse made known the physical distances overcome to vanquish tyranny and defend individual freedom. Visitors walked along two walls picturing scenes of the war experience in bas-relief: scenes of servicemen receiving medical exams, young men taking the oath, and soldiers being issued military gear. There were scenes of invasion, combat, and burying the dead—all ending in a scene of homecoming. Ele­gant water fountains poured forth, affording thoughts of triumph and peace.

The Vietnam Veterans Memorial was unique as it imparted neither defeat, nor triumph . . . but simply sacrifice. The “Wall” was sunk into the ground with the earth behind over 58,000 names etched into black granite honoring U.S. service members MIA and killed. Fresh flowers and wreaths adorned it. Visitors walked down below ground level to view the names of each member lost and the chronological order of their falling. A volunteer stood prepared to help visitors locate the name of a friend or loved one. The names started at the apex on panel 1E in 1959, moving day by day to the end of the eastern wall at panel 70E. They started again at panel 70W and continued to the apex at panel 1W in 1975. The muted simplicity of the Wall stood in stark contrast to the memorial honoring our WWII veterans.

The War between the States may have posed the greatest risk to our experiment in representative democracy. The Lincoln Memorial honored our 16th president’s courageous leadership during this precarious moment in history. It contained a large seated white marble sculpture of Abraham Lincoln standing 19 feet high and weighing 175 tons.3 Lincoln’s second inaugural address was chiseled into the wall of the north side chamber. The Gettysburg Address was hewed into the wall of the southerly chamber, paying tribute to the soldiers who died in that pivotal battle. Remarkably, reciting the address aloud to my children breathed life into Lincoln’s words. The beauty and power of the rhetoric was penetrating. As I read, I pondered how easy the North and South could have parted and gone their separate ways. But Lincoln’s leadership and the sacrifice of both Union and Confederate soldiers ensured the great American experiment would endure. I doubt many of those young men understood their significance. Though, it’s now easy to recognize their deaths assured the survival of our Republic.

Visiting the National Archives and waiting to study the original Declaration of Independence, United States Constitution, and Bill of Rights, I was stirred once again. In the Rotunda these documents stood slightly elevated, under armed guard, and locked in encasements constructed by the National Institute of Standards and Technology of titanium and aluminum.4 The frames were gold plated, and one observed the documents through bulletproof glass. Though shielded, the original documents have faded markedly over time. Consequently, the lights were dimmed to protect the parchment from further detriment. While standing with my children, listening to the armed guard’s instructions and waiting our turn, it struck me. Each day of life as a lawyer I press into service these same treasured documents—protecting those individual liberties our founding fathers deemed so fundamental. Most importantly, I grasped my responsibility in safeguarding these liberties. Liberties imparted through our experiment in self-governance and a responsibility I proudly share with all criminal defense lawyers.

Regrettably, there was much we didn’t have time to see. The Arlington National Cemetery. The Korean War Veterans Memorial. The Martin Luther King Jr. Memorial. The Library of Congress. The Supreme Court. The trip was, nonetheless, impactful. It inspired me. It imparted new zest into my daily work. It made me proud to be an American again. And I realized how our lawyering defends our democracy. A democracy paid for with the blood of soldiers and the sacrifice of families. I trust each of you may visit our nation’s capital to more fully appreciate your own responsibility in keeping safe our great American experiment of representative self-government.


1. “The Gettysburg Address” by Abraham Lincoln. Abraham Lincoln Online, 2016. Web. 10 Jan. 2016.

2. Millmore, Mark. “Pyramids of Giza.” Discovering Ancient Egypt. Eyelid Productions, 2016. Web. 7 Jan. 2016.

3. United States National Park Service. “Lincoln Memorial.” U.S. Department of the Interior. Web. 8 Jan. 2016.

4. “NARA—The Declaration of Independence—Our National Treasure.” National Archives and Records Administration. Web. 8 Jan. 2016.

Federal Corner: A Judge, a Prosecutor, and a Defense Lawyer Work Together to Give the Judges of the Third Circuit an Unbelievable Case – By F. R. Buck Files Jr.


A prosecutor who is overly aggressive can introduce error into the trial of a case. A defense lawyer who sits on his hands and does not object can limit the appellate court’s consideration of an issue to a plain error standard. A trial judge who considers testimony im­properly adduced by an aggressive prosecutor in determining what sentence to impose can make the case difficult for an appellate court to affirm. That is the conduct of the district judge and the two lawyers in United States v. Moreno, ___F.3d___, 2016 WL 53796 (3rd Cir. 2016). This required a panel of the United States Court of Appeals for the Third Circuit to vacate the sentence imposed by United States District Judge Norma Barry Fischer of the Western District of Pennsylvania and to remand the case for re-sentencing, only [the panel: Circuit Judges Fisher, Chagares, and Jordan, opinion by Fisher].

An Overview of the Case

Jason Moreno was indicted on two counts of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and five counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. He pleaded not guilty and proceeded to trial. On September 19, 2013, the jury returned a verdict of guilty on all seven counts. On appeal, Moreno’s lawyer raised issues as to a Confrontation Clause violation, the admission of hearsay evidence, and as to a four-level sentencing enhancement. Each of these grounds of error was rejected by the Court. What remained for the Court was the issue of allocution. Judge Fisher’s opinion reads, in part, as follows:

[At the Sentencing Hearing]

Moreno called eight character witnesses. Defense counsel asked questions of each, and the prosecutor questioned three of them. After the final witness, defense counsel informed the Court that Moreno wanted to exercise his right of allocution.

[Moreno Addressed the Court]

Then Moreno, under oath, addressed the Court directly without questions from defense counsel. He asked the Court for mercy and listed several mitigating circumstances for the Court—among other things, he apologized to his victims, explained that he was relatively young when he committed the crimes, spoke of recent changes in his life, said that he had become more religious, and stated that he was dedicating his life to preventing others from making the mistakes he had made. He also stated that he was prepared to accept the consequences of his actions, and he asked the Court for mercy. He did not attempt to re-contest factual issues of innocence and guilt [emphasis added].

[Moreno’s Lawyer Did Not Object When the Prosecutor Cross-Examined His Client]

When Moreno had finished speaking, the prosecutor—without leave of court—engaged in an extensive cross-examination in which he questioned Moreno about his criminal conduct. Defense counsel did not object. Moreno, who had not testified at trial, had no choice but to testify on matters of his guilt. The prosecutor explained to the District Court, “[W]hat I’m trying to figure out is what . . . he knowingly, fraudulently submitted to the lenders.” (App.1706–07). The prosecutor asked Moreno: “Tell the Court, what were the other lies that were in these appraisals that you were submitting to the lender?” (App.1704). When Moreno asked for clarification on a question, the prosecutor responded, “Tell the Court, you’re the one accepting responsibility now.” (App.1705). The prosecutor got Moreno to admit that the evidence of fraud introduced at trial was “just the tip of the iceberg”(App.1710) [emphasis added].

[Moreno’s Lawyer Questioned His Client]

After the cross-examination, the District Court offered defense counsel the opportunity to ask questions, which he took.

[The District Court Made Findings of Fact]

The District Court then made findings of fact regarding the testimony of the witnesses, Moreno’s statement, and the prosecutor’s cross-examination [emphasis added].

[The Prosecutor’s Argument on Sentencing]

The prosecutor’s sentencing argument addressed Moreno’s statement and then argued that the seriousness of the offense had been “ratcheted up” based on what he had been able to “drag out” of Moreno on cross-examination. (App.1755). The prosecutor also referred to the cross-examination to undercut Moreno’s expression of remorse [emphasis added].

[The District Judge Considered Moreno’s Testimony on Cross-Examination in Sentencing Him]

When explaining the sentence, the District Court referenced the cross-examination in rejecting various defense arguments for a lower sentence. The District Court also noted Moreno’s admission during the cross-examination that he had prepared more than the 110 fraudulent appraisals that had been proven at trial [emphasis added].

* * *

[The Rule 32 Provision]

Finally, we turn to the issue of allocution. Before imposing sentence, a district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence. . . .” Fed.R.Crim.P. 32(i)(4)(A)(2).

[Moreno’s Contention]

Moreno contends that this right was violated when, immediately following the allocution, the prosecutor engaged in a vigorous and lengthy cross-examination of him. Moreno concedes that the issue was not preserved and is therefore subject to plain error review.

[The Right to Allocution]

“‘The right of allocution is deeply rooted in our legal tradition’ and dates back to at least the fifteenth century.’ United States v. Ward, 732 F.3d 175, 180–81 (3d Cir. 2013) (alteration omitted) (quoting United States v. Adams, 252 F.3d 276, 282 (3d Cir.2001)), cert. denied, ___ U.S. ___, 134 S.Ct. 2684, 189 L.Ed.2d 212 (2014). Although the right of allocution “is not a right guaranteed by the Constitution,” we have explained that Congress, “acknowledging the historical and common law roots of the right of allocution, . . . codified the right in 1944 by promulgating Federal Rule of Criminal Procedure 32.” Id. at 181. “Furthermore, while the right of allocution is not constitutional, nonetheless it is ancient in origin, and it is the type of important safeguard that helps assure the fairness, and hence legitimacy, of the sentencing process.” Adams, 252 F.3d at 288 (citing Green v. United States, 365 U.S. 301, 304–05, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961)).

[The Purpose of Rule 32]

As we stated in Ward, the critical purpose of Rule 32 is threefold: “(1) to allow the defendant to present mitigating circumstances, (2) to permit the defendant to present personal characteristics to enable the sentencing court to craft an individualized sentence, and (3) to preserve the appearance of fairness in the criminal justice system.” Ward, 732 F.3d at 181. We further explained that “allocution ‘is designed to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstances.’” Id. (quoting United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir.1994)). Allocution also “has value in terms of maximizing the perceived equity of the process, because the defendant is given the right to speak on any subject of his choosing prior to the imposition of sentence.” Id. at 181–82 [emphasis added] (internal citations and quotation marks omitted).

[The Government’s Contention]

The government contends that the District Court did not err in permitting the prosecutor to cross-examine Moreno because Rule 32 does not explicitly prohibit cross-examination and because neither the Supreme Court nor our Court of Appeals has ever specifically held that the practice is impermissible.

[Cross-Examination is Contrary to the Purpose of Rule 32]

But cross-examination is still contrary to the purpose of allocution as outlined in Rule 32, which is to “permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii). As we said in Ward: “The reason for allocution is not to permit the defendant to re-contest the factual issues of innocence and guilt. Rather, the purpose of allocution is to afford the defendant an opportunity to raise mitigating circumstances and to pre­sent his individualized situation to the sentencing court.” Ward, 732 F.3d at 182.

[What Moreno Said in His Allocution]

In his statement to the District Court, Moreno did not attempt to re-contest factual issues of guilt or innocence. To the contrary, Moreno presented personal characteristics and explained at length that though he had gone to trial, he was accepting responsibility for his crimes.

[What the Prosecutor Did on His Cross-Examination of Moreno]

But the prosecutor used his cross-examination to do exactly what we said in Ward was impermissible for a defendant to do: he bolstered the factual case against Moreno by drawing out several admissions about the scope of the conspiracy, which he then used in his sentencing argument.

[This Was Error]

Cross-examination on the subject of Moreno’s guilt was contrary to the purpose of Rule 32 and to the purposes of allocution as stated in Ward. The District Court thus committed error in permitting the prosecutor to cross-examine Moreno.

[The Court’s Holding on Plain Error]

We also hold that the error was plain because it was clear and obvious in light of this Court’s discussion in Ward.

* * *

[The Court Could Exercise Its Supervisory Power]

Even if we were to conclude that the error in this case was not plain (and we do not so hold), we would nevertheless exercise our supervisory power and hold that a defendant may not be cross-examined during allocution.

My Thoughts

  • It would have been interesting to have been a fly on the wall during the judges’ conference on Moreno. Judge Fischer was not a “rookie judge.” She had been nominated by President George W. Bush and took the oath of office as a District Judge in February 2007. The judges had surely seen cases in which the defendant’s lawyer failed to object; however, they had probably never seen one in which an Assistant United States Attorney cross-examined a defendant who had just finished his allocution to the court.
  • So, what’s the lesson for us all? Object. Object. Object. Moreno’s lawyer forced the Court to review his allocution argument on a plain error standard. In this case, that was not a problem for the Court; in other cases, though, failing to object could make it unlikely that a defendant would have success on appeal.
  • From a reading of Moreno, it appears that the prosecutor had a rather simple task in convicting the defendant. Once again, we have a case of an over-zealous prosecutor who was not satisfied with a win on guilt/innocence and who was trying for a home run on sentencing. Now, he is forced to re-litigate the sentencing issue.
  • What surprised me? That the Court did not require Moreno to be sentenced, on remand, by a different judge. It is always impossible to un-ring the bell or to put the meow back in the cat. It will be interesting to see what sentence Judge Fischer imposes.