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December 2016

December 2016 SDR – Voice for the Defense Vol. 45, No. 10

Voice for the Defense Volume 45, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Police officer D was properly convicted of conspiring to commit extortion for routing ve­hicles from accident scenes to a repair shop in exchange for payments from the shop owners because the conspirators in an extortion scheme need only to agree that the public official will obtain property from another person; this other person may be one of the co-conspirators. Ocasio v. United States, 136 S. Ct. 1423 (2016).

        D, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles to an auto repair shop in exchange for payments from the shop owners. D was charged with obtaining money from the shop owners under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951, and of conspiring to violate the Hobbs Act, in violation of 18 U.S.C. § 371. The trial court rejected D’s argument that—because the Hobbs Act defines extortion as “the obtaining of property from another, with his consent . . . under color of official right”—a Hobbs Act conspiracy requires that the alleged conspirators agreed to obtain property from someone outside the conspiracy. D was convicted on all counts, and the Fourth Circuit affirmed. D challenged his conspiracy conviction, contending he could not be convicted of conspiring with the shop owners to obtain money from them under color of official right. The Supreme Court affirmed.

        The general federal conspiracy statute, § 371, makes it a crime for “two or more persons [to] conspire . . . to commit any offense against the United States.” This use of “conspire” incorporates the longstanding principles of conspiracy law; a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he entered into a conspiracy that had as its objective the obtaining of property from another conspirator with his consent and under color of official right. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an endeavor that, if completed, would satisfy all the elements of the underlying substantive criminal offense. A conspirator need not agree to commit the substantive offense—or even be capable of committing it—to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. D and the shop owners reached just such an agreement: They shared a common purpose that D and other police officers would obtain property “from another”—that is, from the shop owners—under color of official right. Although the shop owners could not act under color of official right, they were nonetheless conspirators in the extortion scheme since they shared a common purpose with the officer to commit every element of the extortion offense with the shop owners’ consent.

State court’s summary denial of habeas relief was a de­cision on the merits subject to deferential review; the presumption that the state court adopted the procedural rejection of the lower court was amply refuted. Kernan v. Hinojosa, 136 S. Ct. 1603 (2016).

        Inmate D filed a state habeas petition asserting an ex post facto claim. The state superior court dismissed for improper venue, because D did not file the petition in the county in which he was confined, and the Supreme Court of California summarily denied relief without explanation.

        D filed a federal habeas petition. The district court denied D’s ex post facto claim under the Antiterrorism and Effective Death Penalty Act’s deferential review. The Ninth Circuit, citing Ylst v. Nunnemaker, 501 U.S. 797 (1991), “looked through” the Supreme Court of California’s denial to the last reasoned decision adjudicating D’s claim: the superior court’s dismissal for improper venue. The Ninth Circuit reasoned that the superior court’s decision was “not a determination ‘on the merits’” and, as a result, “not bound by AEDPA.” Having freed itself from AEDPA’s strictures, the Ninth Circuit granted habeas relief.

        The Supreme Court reversed and remanded. The Ninth Circuit should have reviewed D’s claim through the AEDPA’s deferential lens because the Supreme Court of California’s denial of D’s petition was on the merits. Ylst held that where “the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” But the Court refused to make that presumption irrebuttable; “strong evidence can refute it.” It was amply refuted here. Improper venue could not possibly have been a ground for the high court’s summary denial of D’s claim. There is only one Supreme Court of California and, thus, only one venue in which D could have sought an original habeas writ in that court. Under these circumstances, it cannot be that the state supreme court’s denial, as stated in Ylst, “rest[ed] upon the same ground” as the superior court’s. It quite obviously rested on some different ground. The Ylst look-through approach was therefore inapplicable.

Fifth Circuit

The maxima in 18 U.S.C. § 3581, which depend on the classification of the offense under § 3559, do not apply where the statute of conviction itself specifies the maximum term of imprisonment allowed. United States v. Simpson, 796 F.3d 548 (5th Cir. 2015).

District court abused its discretion in reopening, pursuant to Fed. R. Civ. P. 60(b)(6), its 1998 judgment denying D (sentenced to life imprisonment on drug charges) collateral relief under 28 U.S.C. § 2255. United States v. Fernandez, 797 F.3d 315 (5th Cir. 2015).

        The purported basis for D’s Rule 60(b)(6) motion—that the district court inadvertently failed to rule on a meritorious claim that defense counsel was ineffective in not severing D’s trial from his co-defendant—was more properly characterized as one under Rule 60(b)(1) (mistake or inadvertence), to which a one-year limitation applied. Because D’s motion was not filed until long after one year, the motion was untimely. The Fifth Circuit reversed the district court’s order granting Rule 60(b) relief and granting a new trial.

District court properly granted a new trial for police officers charged with shooting civilians at the Danziger Bridge after Hurricane Katrina based on federal prosecutors’ anonymous comments about the case while it was going on and other wrongdoing by the prose­cu­tors. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015), reh’g en banc denied, 813 F.3d 600 (5th Cir. 2016).

        The panel majority agreed with the district court that a new trial was warranted, irrespective of harm/prejudice, under Brecht v. Abrahamson, 507 U.S. 619 (1993). The panel majority also agreed with the district court’s alternative finding that Ds were prejudiced. Finally, the panel rejected the Government’s request to remove the district judge.

D failed to show any reversible plain error occurred in his sentencing under the ACCA; thus, he also failed to show, under a more demanding standard and on the existing record, that extraordinary circumstances warranted a rehearing. United States v. Guzman, 797 F.3d 346 (5th Cir. 2015).

        D claimed for the first time, in this petition for rehearing, that his sentence enhanced under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e), was invalid under Johnson v. United States, 135 S. Ct. 2551 (2015)(which invalidated the residual clause of the ACCA’s “violent felony” definition). The Fifth Circuit declined relief, saying it was unclear whether the prior conviction in question qualified as a “violent felony” under the elements clause of the “violent felony” definition; that lack of clarity precluded relief under the plain-error standard.

Where the indictment charging D with defrauding two banks was redacted to delete all references to one of the banks, there was no constructive amendment of the indictment because the charge against D was narrowed not broadened. United States v. Griffin, 800 F.3d 198 (5th Cir. 2015).

        Nor was there a prejudicial variance because D knew before trial that the Government was proceeding on a theory that only one bank was defrauded.

        (2) The Fifth Circuit rejected D’s claim that the Government failed to prove D defrauded the bank—i.e., failed to prove D placed the bank at risk of civil liability or financial loss. The Fifth Circuit noted, but did not address the effect of, Loughrin v. United States, 134 S. Ct. 2384 (2014); the Government argued that the risk-of-loss requirement was questionable in light of Loughrin.

District court plainly erred in imposing a pornography restriction as a special condition of supervised release because the court did not justify the condition, and the record did not make it clear how the condition was related to the statutory factors. United States v. Prieto, 801 F.3d 547 (5th Cir. 2015).

        The error affected D’s substantial rights because the condition could not properly have been imposed on this record; however, the Fifth Circuit declined to exercise its plain-error discretion to correct the error: “[W]e do not think that the public would perceive any grave injustice when a district court imposes a modifiable condition prohibiting a defendant with a prior child-molestation conviction from purchasing, possessing, or using sexually stimulating or sexually oriented ma­te­rials, the defendant’s [presentence investigation report] recommended the condition, and the defendant forwent not one but two opportunities to object to the condition[.]” Furthermore, the Fifth Circuit upheld its precedent in holding that the district court did not plainly err in imposing a special supervised-release condition prohibiting D from residing in or going to places minors were known to frequent.

In treaty-transfer determination for prisoner transferred from Costa Rica to the United States, the Parole Commission did not run afoul of the statutory directive that the total transfer sentence could not exceed the sentence imposed by the foreign tribunal; the Parole Commission permissibly accomplished this by stating D was to be released from supervision when his imprisonment and supervision totaled 30 years (which was the Costa Rican sentence). Bender v. United States Parole Commission, 802 F.3d 690 (5th Cir. 2015).

        Even though the exact amounts of imprisonment and supervision were not precisely known at the time, this did not constitute an impermissibly determinate sentence. Nor was the Parole Commission’s determination procedurally or substantively unreasonable. The Fifth Circuit affirmed.

Court of Criminal Appeals

COA improperly concluded that counsel’s advice, what­ever it was, constituted deficient performance; to over­come the presumption of reasonable professional as­sis­tance, any allegation of ineffectiveness must be firmly founded in the record. Anthony v. State, 494 S.W.3d 106 (Tex.Crim.App. 2016).

        D pleaded guilty to aggravated sexual assault of a child younger than 14 in exchange for deferred-adjudication community supervision. The trial judge placed D on 8 years of community supervision; the judge’s deferred-adjudication order listed the victim’s age as 3 years old. Several years later, the State moved to adjudicate, alleging D violated his community supervision. The judge found the violations true, found D guilty, and sentenced him to life imprisonment. The judgment again noted that the victim was 3 at the time of the assault.

        COA reversed, finding the judge had no authority to grant D deferred adjudication because the judge’s deferred-adjudication order contained a finding that the victim was 3 years old; COA then concluded D was prejudiced by counsel’s deficient performance in advising him on the offense’s punishment range, though the record does not contain what exactly D’s coun­sel told him. In its view, the finding that the victim was 3 raised the issue of whether Tex. Code Crim. Proc. art. 42.12 precluded the judge from imposing deferred adjudication. (Article 42.12 stated that a judge may not impose deferred adjudication on a defendant punishable under Tex. Penal Code § 22.021(f); § 22.021(f)(1) provided a minimum pun­ishment of 25 years’ confinement for aggravated sexual assault of a child under 6.)

        CCA reversed, reinstating and reforming the trial court’s judgment. CCA struck from the judgment the finding that the victim was 3 and reformed it to reflect a finding that the victim “was younger than 14 years of age at the time of the offense.” CCA disagreed with COA’s analytical premise and, as a result, its conclusion that D received ineffective assistance. The indictment specifically alleged D assaulted a child who was younger than 14. D’s guilty plea, admonishments, waivers, stipulations, and judicial confession regarded a child under 14 as in the indictment. He pleaded guilty to a first-degree felony with a punishment range of 5 to 99 years or life, and was admonished on that range both orally and in writing when he received deferred adjudication. Other than the notation that the victim was 3—a finding that could be accurate under the indictment alleging a victim under 14—the record contained no indication that the parties or judge intended to punish the assault under § 22.021(f). Furthermore, the presumption of regularity requires that appellate courts indulge every presumption in favor of the regularity of the plea proceedings and trial court documents. Even if the finding was accurate, it had no support in the record.

COA should have vacated D’s aggravated assault conviction that the State unequivocally abandoned to avoid running afoul of the constitutional prohibition against multiple punishments. Duran v. State, 492 S.W.3d 741 (Tex.Crim.App. 2016).

        A jury convicted D of burglary of a habitation and aggravated assault in two separate counts. The jury found D guilty of both counts, but the State abandoned the aggravated assault conviction prior to the trial’s punishment phase. COA upheld the aggravated assault conviction even though the State abandoned that charge; COA also upheld the trial court’s modification of the judgment to include a deadly-weapon finding. CCA reversed.

        COA should have vacated the conviction for aggravated assault because the State unequivocally abandoned the charge in the middle of trial and after jeopardy had attached. Moreover, COA improperly held that the deadly-weapon finding was proper based on the jury’s finding of guilt on the burglary charge. For a trial court to enter a deadly-weapon finding in the judgment, the trier of fact had to first make an affirmative finding to that effect. CCA disagreed with the State that the trial court could rely on the abandoned jury verdict in the aggravated assault case to support the entry of a deadly-weapon finding. The jury did not necessarily decide the deadly-weapon issue when it found D guilty of burglary of a habitation; the jury was not required to decide whether D committed aggravated assault with a deadly weapon. CCA reformed the judgment to delete any reference to a deadly-weapon finding in D’s burglary of a habitation conviction.

CCA rejected capital-murder D’s points of error, mainly that the evidence was sufficient to reasonably infer D intentionally committed murder in the course of committing aggravated rape; D’s “proffered scenario, in which [D] had sexual intercourse with [victim] and then someone else entered the apartment and murdered her, strains credulity.” Jenkins v. State, 493 S.W.3d 583 (Tex.Crim.App. 2016).

        “In June 2013, a jury convicted appellant of capital murder for committing the offense of murder in the course of aggravated rape in November 1975. Based upon the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.0711, sections 3(b) and 3(e), the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. Appellant raises 19 points of error. After reviewing appellant’s points of error . . . we affirm the trial court[.]”

        CCA focused on rejecting four of D’s claims: One, viewing the totality of the evidence, the jury could have reasonably inferred that D murdered the victim in the course of committing aggravated rape because his DNA profile was identified in semen inside her body and in a hand print on the blouse she was wearing. Two, the trial court did not err by determining that the DNA evidence was sufficiently reliable and relevant under Tex. R. Evid. 702; a DNA analyst stated he followed the protocol in effect in 1997 by running a reagent blank when he first analyzed the liquid extract. Three, the court did not err under Tex. R. Evid. 410 in excluding plea evidence because any probative value of D’s plea offer was diluted by the various motivations that might have driven his decision to make the offer; any probative value was substantially outweighed by the danger of misleading the jury.

        Four, the trial court did not abuse its discretion in denying D’s motion for mistrial after juror misconduct was brought to the court’s attention; D said he did not receive a fair and impartial trial as a result of a juror’s improper conversation with an outside party. CCA deferred to the trial court’s findings that the juror’s testimony denying prior knowledge of the case was credible and that the juror did not communicate outside knowledge to other jurors. The trial court properly employed less drastic measures that effectively insulated the jury from outside influence and sufficiently cured the problem created by the juror’s misconduct.

Trial court properly excluded evidence in support of D’s claim that he was justified in assaulting his ex-wife; the evidence was irrelevant, as it did not give rise to any justification defense because it failed to show D had to make a split-second decision to assault his ex-wife to keep his sons from immediate harm. Henley v. State, 493 S.W.3d 77 (Tex.Crim.App. 2016).

        A jury found D guilty of misdemeanor assault causing bodily injury to a family member. He appealed that the trial court excluded evidence in support of his claim of defense of a third person under Tex. Penal Code § 9.33. D had asked the court to permit him to cross-examine his ex-wife about alleged misconduct of her new husband and alleged sexual abuse of their sons by the new husband’s former stepson. D also sought to introduce his own testimony that if his ex-wife left his house with their sons, he believed she would allow the boys to come in contact with her new husband and the former stepson, and this would put them in danger. D asserted this evidence supported his claim of defense of a third person and should have been allowed to justify the evidence that D pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the driveway. COA concluded the trial court erred by denying D the right to show his state of mind and develop his justification defense. CCA reversed COA and reinstated D’s conviction.

        CCA concluded that “none of the proffered testimony had any tendency to show that the children were in need of immediate protection.” In determining whether evidence must be admitted under the U.S. Const. amend. VI Confrontation Clause, the trial court must balance the defendant’s right to cross-examine and the probative value of the evidence against the risk factors associated with admitting the evidence. The trial court maintains broad discretion to impose reasonable limits on cross-examination. This evidence “was not probative. It did not show in any way that appellant was justified in assaulting [his ex-wife]. It wasn’t even marginally relevant.” And D failed to assert how the evidence would have shown any motive or witness bias. Finally, admission of the evidence would have presented a significant risk that the jurors might be distracted from the charged case and might disregard D’s actions due to their dislike of his ex-wife. Moreover, D’s state of mind about what he thought might happen in the future was irrelevant to whether his conduct was immediately necessary to protect his sons from the new husband or his stepson, as neither of them were there, and there was no evidence that the ex-wife or her mother was about to use unlawful force on the boys.

The State may appeal a grant of shock probation, but that appeal stays the proceedings in trial court; given the stay in proceedings, the trial judge’s timeline to sentence D extended, and his order placing D on shock probation was valid. State v. Robinson, No. PD-0974-15 (Tex.Crim.App. June 29, 2016).

        Tex. Code Crim. Proc. art. 42.12, § 6(c) allows a judge to temporarily send a defendant to prison before returning him to court and sentencing him to community supervision. This is “shock probation.” Section 6 states that the judge retains jurisdiction over the case for 180 days after sentencing the defendant to prison. Tex. Code Crim. Proc. art. 44.01(a)(2) allows the State to appeal a court order that arrests or modifies a judgment.

        A court of appeals has subject-matter jurisdiction to entertain a State’s art. 44.01(a)(2) appeal of a trial court’s grant of art. 42.12, § 6(c), shock probation, but the pendency of that appeal does not deprive the trial court of subject-matter ju­ris­diction to consider a motion for shock probation after the man­date has issued on that appeal. “When the State appealed the trial court’s grant of shock probation, that stayed the proceedings until the appeal was resolved. The timeline for the trial court to grant shock probation started on December 28, 2011, when Appellee began serving his sentence, and ran through February 14, 2012, when the State filed its notice of appeal. It was then stayed until the appellate court’s first mandate is­sued on August 19, 2013, at which point it began running again. Therefore, only 111 days had passed when the trial court granted Appellee shock probation. . . . Applying Article 42.12 § 6, without harmonizing that statute with Article 44.01(e), could prevent a defendant from ever receiving shock probation because the State could simply appeal whenever a trial court grants it. And then, regardless of the State’s points of error, by the time the appeal was resolved it would be too late for the trial court to grant shock probation. That, as the trial court put it, would be an absurd result. We reverse the judgment of the court of appeals and enter judgment affirming the shock probation order of the trial court.”

Trial court’s cumulation order was invalid because D’s parole had not been revoked at the time he was sentenced on the second offenses; there was no existing sentence to cumulate. Byrd v. State, No. PD-0213-15 (Tex.Crim.App. Sept 14, 2016).

        While D was on parole, he was convicted of possession of drugs and evading arrest. He was sentenced on these offenses before his parole on the original offense was revoked. On D’s appeal, COA and CCA asked, if a defendant commits an offense while on parole, is the trial court able to stack the second sentence on top of the first sentence if the defendant’s parole on the first offense has not been revoked before he is sentenced on the second offense? COA held that a trial court may stack a new sentence on a prior sentence for which the defendant is on parole, “irrespective of parole revocation.” CCA affirmed, but modified COA’s judgment.

        “[F]or purposes of [Tex. Code Crim. Proc. art.] 42.08, the timing of a defendant’s parole revocation for the original offense matters. If parole is revoked on a defendant’s first offense before that defendant is sentenced on the second offense . . . the second sentence may be stacked on top of the first sentence. However, if parole is not revoked on a defendant’s first offense before that defendant is sentenced for the second offense, then the second sentence may not be stacked on top of that first sentence. For the purposes of Article 42.08 and in relation to the second offense, that defendant had ‘made parole’ on the first offense, and thus his first sentence had already ceased to operate. We disapprove of all intermediate appellate court holdings to the contrary. . . . Because there was no evidence that appellant’s parole had been revoked at the time he was sen­tenced on his second offense, the trial court’s cumulation order was invalid. Each of the trial court’s judgments is reformed to delete the cumulation order.”

Trial court and COA properly held that D could be convicted of enhanced felony assault against his common-law spouse based solely on their past dating relationship. Sanchez v. State, No. PD-0372-15 (Tex.Crim.App. Sept 14, 2016).

        D was charged with the third-degree felony of assaulting an individual with whom he “has or has had” a dating relationship. The indictment alleged D knowingly or recklessly impeded the normal breathing or circulation of this individual by applying pressure to her throat or neck. The trial court found D guilty in a bench trial. COA affirmed. CCA granted D’s pe­tition to consider whether a defendant can be convicted of as­sault­ing his spouse based solely on their past dating relationship.

        “[A]ssault is generally a Class A misdemeanor, but is en­hanced to a third-degree felony when the assault is committed against one of the three classes of individuals defined in the Texas Family Code and is committed by strangulation or suffocation. Tex. Pen. Code § 22.01(b). The three classes de­lin­eated in the Texas Family Code are those in a ‘dating re­la­tionship,’ ‘family,’ and ‘household.’ A dating relationship is a ‘relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.’ Tex. Fam. Code § 71.0021(b). . . . Appellant’s assault offense was en­hanced by the charge that he assaulted someone with whom he ‘has or has had a dating relationship.’. . . The State alleged no other alternatives in the indictment. . . . Under a plain language reading, the ‘has had’ phrase allows the dating relationship to have ended prior to the assault. In this case, Appellant and Price dated from June of 2006 until some point in August of 2006. As someone who had a dating relationship with Price before the 2009 assault, Appellant satisfies the basic requirements of Section 71.0021 in enhancing the Class A misdemeanor. . . . Whether the dating relationship ended due to the dissolution of the relationship or the inception of a marriage is irrelevant. Nowhere does the statute indicate that a marriage somehow cancels out a prior dating relationship between the same individuals. . . . Appellant claims that convicting him based upon his prior dating relationship with his spouse would meld dating relationships and spousal relationships into one in­distinguishable category. Appellant’s argument implies that the State could choose to prove either a dating relationship or a spousal relationship while alleging only a single charge. . . . There may be significant overlap between the categories of dating relationships and marriage, especially in the case of a common-law marriage, but the overlap between the categories does not make them identical or interchangeable. . . . There are individuals who have a spousal relationship but no prior dating relationship with each other, for instance in an arranged marriage. A defendant who assaults his spouse under these circumstances could be charged only with assault-family violence against a member of his family. . . . Finally, we are not convinced by the proposition that the legislature intended for the ‘has had’ element of the statute to apply exclusively to dating relationships that ended recently. . . . We will not add a statutory time limit when none exists[.]”

Court of Appeals

The evidence was insufficient to support D’s conviction for bail jumping and failure to appear because there was no evidence that D had actual notice of the trial setting. Ferguson v. State, No. 06-16-00046-CR (Tex.App.—Texarkana Oct 27, 2016).

        D was arrested for possession of a controlled substance less than one gram. She was released after posting a $100,000 surety bond. After hearing evidence that D missed a December 14, 2015, trial date, a jury convicted her of bail jumping and failure to appear. D appealed, arguing that the State failed to prove she intentionally or knowingly committed the offense be­cause she had no notice of the special trial setting.

        COA rendered an acquittal. The evidence was insufficient to support D’s conviction of bail jumping and failure to appear under Tex. Penal Code § 38.10(a) because her instanter bond was not prima facie evidence of actual notice of the December 14 trial setting, as it did not advise her of the court in which she was to appear, the date or time, or whether the offense was a felony or misdemeanor, and because there was no evidence to prove D had actual notice of the trial setting. The evidence at trial established that no one sent D a written notice of her trial date, no one was able to reach her by phone, and there was no evidence that the trial setting was included on the trial court’s website.

Juvenile court did not make requisite statutory findings to waive its jurisdiction and transfer the case to district court. Morrison v. State, No. 14-15-00773-CR (Tex.App.—Houston [14 Dist] Nov 10, 2016).

        D challenged his murder conviction on the basis that the district court did not have jurisdiction to hear his case because he was 16 years old at the time of the offense and the juvenile court’s jurisdiction was not properly waived. The State charged D and filed a petition for a discretionary transfer from juvenile court to criminal district court before D turned 18; however, the juvenile court heard the petition and transferred the case after D had reached his eighteenth birthday. The district court jury returned a guilty verdict and assessed punishment at 45 years’ confinement.

            COA concluded that the juvenile court abused its discretion in transferring the case to the district court after the child turned 18 without making findings under Tex. Fam. Code § 54.02(j)(4) as to why it was not practicable to proceed earlier; consequently, its jurisdiction was not waived, jurisdiction did not vest in the district court, and a conviction had to be vacated. Objecting at the transfer hearing was not necessary under § 51.042, read in context with the exclusive original jurisdiction of juvenile courts regarding illegal conduct by children under §§ 51.02, 51.04(a), to preserve error on a complaint that the juvenile court’s transfer of the case did not properly waive jurisdiction and thus did not vest jurisdiction in the district court under Tex. Penal Code § 8.07(b) to conduct criminal proceedings. COA vacated the district court’s judgment and remanded to the juvenile court.

DWI Jury Punishment

Overview

This article is primarily about jury punishment for DWI first offense misdemeanors. Some of the information applies to other jury punishment situations as well, but please keep the scope of this material in mind as you consider these suggestions and strategies.

DWI defendants, in general, are some of the nicest criminal defendants you will ever represent. If your DWI defendant is a nice person, the jury will reward them with a minimum-type punishment if you prepare and present the case properly.

I’ve done jury punishment in probably 120 misdemeanor jury trials, most of them in Dallas County. I’ve also done jury pun­ishment in Collin, Denton, Tarrant, and Rockwall counties. In my experience, you should almost always go to the jury for punishment if it’s a DWI first offense, there were no injuries, and your client was reasonably cooperative with the police. And as you surely must know, it is also beneficial if your client is attractive, and young. A light jury punishment is almost a slam dunk if your client is in the “helping” professions (teacher, firefighter, nurse), has a reasonable excuse for the DWI (I had just left my mother’s funeral three hours earlier), or is a single parent of a young child.

Don’t worry about super high BAC levels, open containers, accidents, or admissions about being drunk. If it’s a first offense, no injuries, and a cooperative defendant, you should do fine on jury punishment!

Step One: Convince Yourself That It Can Be Done

Before you try a jury punishment case, do some preparation, and do some preliminary research: After every DWI trial you see (whether it’s yours or someone else’s), start asking the jurors what punishment they would have assessed if it was up to them. Make sure you ask them specifically what their punishment would have been if probation wasn’t an option. This will start to give you some idea of what punishments jurors think are appropriate for DWI first offense cases. About half of the DWI jurors I ask this question respond with “I wouldn’t have given any jail time.” And please remember that this is the opinion of these jurors without having been given a well-prepared defense jury punishment presentation. With a good punishment presentation, those verdicts will be even better for your clients.

There is a definite art to jury punishment. But it’s not at all difficult, and anyone can learn how to do it. It is a big mistake, however, to try jury punishment without adequate advanced preparation. It can be a disaster for the unprepared! The system I have developed is based upon logic and common sense, and that’s why it works almost every time (unless you have an irrational jury, which is rare, but it can happen). A good jury punishment presentation can be very frustrating to the prosecutors because there just isn’t much they can do about it.

Step Two: Convincing Your Client to Go to the Jury

Of course, before you’ll ever be able to do a DWI misdemeanor jury punishment, you’ll have to convince your client to do it! This is by far the hardest part of doing jury punishment on a first offense DWI! You really have to convince your clients that it is safe to do. I spend 20 or 30 minutes on the topic, and ex­plain in great detail everything about it, including how I do it, how juries think about it, the types of verdicts I usually see, and especially how much probation actually costs both in time and in money. I explain all of the standard conditions of probation. Then I explain how doing jail time can save them about $2,000 or so in hard dollars and over 100 hours of their time. I explain that in my experience, most DWI first offense jail sentences are one weekend or less.

Procedural Concerns

You must file for jury punishment in writing prior to the start of jury selection. No particular form is needed. You can simply write “The defendant elects the jury to assess his sentence,” and have it signed by the defendant and defense counsel. If your goal is a short jail sentence, do not file a sworn application for probation. TCCP 42.12 Sec. 4(e) prevents a jury from giving probation if the sworn application is not filed before the trial begins, and later proven up.

Be alert to the fact that the judge may always grant probation in a misdemeanor case, even if you go to the jury for punishment, and even if you do not file a sworn application. TCCP 42.12 Sec. 3(a). Some judges don’t know that, and you may not want to tell them! On the other hand, theoretically you could get a three-day sentence from the jury and have the judge probate it for two years, which is not at all a pleasant result for your client!

If a jury goes crazy on you and gives your client 180 days on a first offense DWI, remember that the judge can still come to your rescue because he or she retains the option of probating that sentence for your client.

When I first started doing DWI first offense jury punishment, some judges cautioned that they might probate any jail sentence that they thought was inappropriately short. Now, after dozens of jury sentences of 0 days, 3 days, and 5 days, the judges have come to believe that single-digit sentences reflect the true informed will of the jury community.

Jury Selection

Like most every other thing about a DWI jury trial, jury selection is critical. During jury selection you want to accomplish three things: 1) Get rid of all of the “he could have killed somebody” thinking, 2) establish that every juror could give the minimum punishment if the facts are appropriate (striking for cause every juror who could not), and 3) give the jurors a vivid example of a “bad” first-offense misdemeanor DWI.

Eliminating “He Could Have Killed Someone”

Perhaps the most important part of the whole jury punishment strategy is getting rid of “he could have killed someone” thinking in voir dire. My favorite way to accomplish this is to use a failure to signal a lane change (FSLC) example. An FSLC offense is so common that most jurors probably committed it that day on their way to jury duty. Ask and/or lead the jurors through the following set of questions: Is it possible while you are driving this week that you at least once failed to signal a lane change? <yes> If you fail to signal a lane change, might that cause an accident? <yes> Under the right circumstances, could that accident actually kill someone? <yes> So if you get a ticket tonight on your way home from court for not signaling a lane change, should you be punished as if you killed someone? <no> OK. Why not?

I’ve never had a jury panel not follow the logic. They have always concluded that a defendant shouldn’t be treated like they killed someone when they didn’t. As soon as you get them to acknowledge that point, emphasize it, then quickly move on: “Of course not! In this country we don’t punish people for what didn’t happen in their case. That would be crazy! In this country, we make the punishment fit the actual facts of that case, not the facts of some hypothetical case. Right? OK. Next topic . . .”

I’ve twice had jurors tell me that they actually yelled at other jurors who tried to bring up “he could have killed somebody” in deliberations after I have prepped them properly in jury selection using this approach. It is amazing how well this tactic works.

Making Sure Every Juror Will Consider the Statutory Minimum

Next, you want to make sure that every juror can assess the minimum punishment. DO NOT simply ask them if they could consider the full range of punishment! You don’t want six people who can consider the full range of punishment! You want six people who will consider 0 days and $0! If they can’t, you get to strike them for cause! This is so important that I generally ask at least the first 18 jurors individually if they could consider the minimum of 0/0 (or 72 hours/$0 for the Class B offenses).

If you ask the entire panel as a whole, “Can you all consider the full range of punishment,” maybe one or two will disqualify themselves, but more likely than not, nobody will. If you ask the panel as a whole, “Could you consider 0 days/$0?” maybe 2 or 3 will disqualify themselves. But if you ask 30 panel members individually, you might disqualify 8 or 10 of them! Then you’ll end up with 20 jurors who have all specifically told you that they can consider assessing 0 days and $0! (And that’s exactly what they are likely to do after you follow the rest of the strategy!)

Introducing an Example of a Really Bad DWI First Offense

The last thing to do in jury selection is provide an example of a bad DWI first offense (no SBI) misdemeanor. Why? Because your guy is then going to look like a saint in comparison! Your jurors aren’t going to want to punish him; they are going to want to pin a merit badge on him!

Here is one way to introduce a DWI with really bad facts: “Jurors, I’ve heard some people say ‘A DWI is a DWI, and they should all be punished the same for a first offense.’ Does anyone here feel that way? OK, well, I’d like to ask you if anything in the following two examples would make you feel any differently.

“Defendant number one: Instead of stopping for the police immediately, he led them on a 20-minute high-speed chase. He was driving over 120 mph the wrong way on I-35E. Several vehicles had minor accidents avoiding him. He didn’t stop until he finally wrecked out. There was an open container of Jack Daniels on the seat next to him. He was foul-mouthed and abusive to the arresting officers. His BAC was over four times the legal limit. His criminal record ran over three pages long (but he had no prior DWI cases!)

“Defendant number two was stopped for a taillight being out. He pulled over immediately and was fully cooperative. His BAC was just barely over the legal limit. And he had no criminal record whatsoever. Does anyone think these two cases should be punished exactly the same?”

Introducing Collateral Consequences During July Selection

Consider using questions like this if you don’t plan on having your client testify during punishment:

Could a DWI cost someone their job? Could it cost someone their driver’s license? With no license and no job, could someone lose their home? Could it prevent them from entering a prestigious college or med school? Could it cost somebody in a child custody dispute? “Sure! There must be a thousand ways a DWI conviction can hurt you in life besides just a fine of $2,000 and 180 days in jail. The fine and jail time are only the tip of the iceberg!”

Arresting Officer Cross-Examination

In cross-examination of the arresting officer, you want to get him to acknowledge that your client was polite and cooperative, if possible. You also want the officer to acknowledge that some DWI defendants do everything you mentioned in your “bad DWI” example (20-minute police chase, 120 mph, wrong way on a freeway, open container, etc.).

Should Your Client Testify at Punishment?

You don’t have to put your client on the stand for jury punishment, but if they are decent communicators and comfortable with it, it can really help. The idea is to expose the jury to how horrible the entire DWI experience is, from initial stop, to arrest, to spending the night in jail, to posting bond, to hiring a lawyer, to going to court, etc. If you present it properly, the jury will generally decide that your client has already suffered enough and doesn’t need any additional punishment.

If possible, I like my client to testify along the following lines: “It was stupid. I know better than to drink and drive. It will never happen again.” I also like to ask: “How many days of work could you miss without losing your job?” Most people can answer “I’m not sure, but probably seven days.” Chances are you will get a sentence shorter than that, because most right thinking jurors will not want someone to lose their job over a misdemeanor DWI.

If your client is not going to testify at punishment, you can cover some of the same topics in jury selection, or try to sneak them in during punishment argument.

Punishment Argument

My punishment argument usually goes something like this:

“Jimmy (my client) and I are very disappointed to have reached the punishment stage of this case. To be honest, we had very much hoped for an acquittal. But we knew that a guilty verdict was a possibility. Having found Jimmy guilty, you are now obligated to sentence him appropriately. You must sentence him to jail time, and assess a fine. The jail time can be 0 days (or 72 hours for a class B), and the fine can be $0. In case it is unclear, the jury may not assess probation in this case.

“As far as the jail time, well, there is a reason that we have jails. Jails are where we keep dangerous people. Jails are very costly, of course, and we taxpayers have to pay to construct them, to maintain them, and to feed and house the inmates inside of them. I have heard that it costs over $2,000 a month to house an inmate. That’s a lot of money. If you believe that the State has proven that Jimmy poses a danger to you, your family, your neighbors, or the other citizens of Dallas County, it would make good sense to lock Jimmy up for a couple of weeks or so. But if you don’t think he is a danger, you’d just be wasting taxpayer money by sending him to jail. And it probably wouldn’t accomplish anything except perhaps costing Jimmy his job.

“As far as a fine, you have already heard that this DWI has already cost Jimmy well over $10,000, and that he will have to pay surcharges and increased auto insurance premiums in the future. Simply put, Jimmy has already paid enough financially, and emotionally. He has been put through the ringer.

“I’m asking you to set Jimmy’s jail sentence at five days or less. That is a very reasonable jail sentence under the facts of this particular case. Please don’t set his sentence as a number of hours because that seems to confuse people at the jail. I don’t want you to sentence him to 72 hours and have the jail people think that you meant 72 days. I’ve seen stranger things happen at that jail. And I’m asking that you don’t take any more money out of Jimmy’s pocket. He has paid enough. Hopefully, he won’t lose his job over this.

“Thank you so much for your time and close attention to this case.

“By your guilty verdict you have already shown that you can be tough. Now it’s time to show that you can also be fair.”

The Roles of Forensic Mental Health Experts in the Legal System: What Practitioners of Law May Need to Know

Abstract

Forensic mental health is the crossroads that lies between the criminal justice system and the science of mental health. It requires the forensic practitioner not only to understand complex human behaviors, cognitions, psychopharmacology, brain science, and psychology, but also how to deal with critical legal aspects as those human dimensions intermingle with the law and the legal system as a whole. When seeking a mental health expert witness, it is the foremost important objective for law professionals, then, to fully understand the sought-after expert’s role(s), abilities, and skills when engaging her or him in court or other type of legal and civil cases. It is also crucial to have basic knowledge of the psychometric tools used by those experts, what forensic evaluation(s) are needed for different legal cases and matters, and who of the various forensic mental health experts is actually able to render desirable services—efficiently and effectively. This article aims to help law professionals, and those involved, understand the mental health role(s) of experts, their diverse abilities and skills, and then how to select the most fitting expertise for the case on hand.

The field of forensic mental health has grown considerably during the past two decades, impacted by a growing body of research, literature, a changing health care system, communication technologies, and interests in understanding human behaviors, brain functions, and psychological dysfunctions. Forensic mental health is an intertwined junction between the fields of psychology, psychiatry, counseling, social sciences, and the justice system. It deals with the legal aspects of human behavior and its application of psychological principles and knowledge to a range of legal activities such as custody disputes, child abuse, competency to stand trial, sanity defense, personal injuries, mental capacity and guardianship, and much more. Broadly speaking, forensic mental health is the application of the aforementioned fields and expertise (psychology, psychiatry, behavioral sciences, or social sciences) within a legal context (Alison, L. 2008; Coupland, R. A. & Kurtenbach, T. E. 2013).

Other labels used in the field might be legal psychology, law and psychiatry, or law and mental health where a forensic psychologist, for example, is a licensed psychologist who specializes in applying psychological knowledge (e.g., psychological and personality theories, psychiatric or psychological evaluations, psychometrics, and the like) to legal matters, both in the criminal and civil arenas (Heilbrun, Marczyk, and Dematteo, 2002; Tolou-Shams, 2011; Kitaeff, 2011).

The expert testimony of psychologists can play a profound role in the outcome of cases in many courts. Psychological research and testimony, for example, have influenced the practice and ruling of the court of appeals for England and Wales and Northern Ireland (Leslie, Young, Valentine, & Gudjonsson, 2007). Testimonies of mental health professionals can be devastating to the outcome of a case. For example, in Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008), the U.S. Court of Appeals for the Ninth Circuit affirmed that allowing the prosecution access to a psychiatrist’s report retained for the defense and allowing that mental health professional to testify in the penalty phase of a death penalty case represents ineffective counsel.

In May 1983, Ricky Sechrest kidnapped and murdered 10-year-old Maggie Weaver and 9-year-old Carly Villa. In June 1983, he was arrested. While waiting to be booked for an unrelated charge, he confessed to the murder of both girls. Dr. Lynn M. Gerow evaluated Sechrest at defense counsel’s request to determine whether he was fit to stand trial and to evaluate the possibility of an insanity defense. Ultimately, after reviewing Dr. Gerow’s report, defense counsel decided not to call him as a witness and not to pursue an insanity defense (American Academy of Psychiatry and the Law, 2010; Boyer, Martinez, & Wortzel, 2010).

The prosecution asked defense counsel to permit the use of Dr. Gerow’s report and to permit him to be called as a prosecution witness during the penalty phase of Sechrest’s trial. At the penalty phase, Dr. Gerow testified that Sechrest “was an ‘incurable sociopath’ with an extensive criminal record and a history of drug abuse.” In September 1983, Sechrest was sentenced to death for each of the two murders. He was also sentenced to two terms of life in prison without the possibility of parole for each of the two kidnappings. Sechrest appealed his convictions and sentences throughout the 1990s, and in December 2004, the district court granted certiorari for his appeal. He presented several claims in his appeal, including that his Miranda rights were violated; that his Sixth and Fourteenth amendment rights were violated by the prosecution’s statements regarding the likelihood of his release from prison; and that his defense counsel provided ineffective counsel by allowing the prosecution to call Dr. Gerow as a witness. In summary, Sechrest’s lawyers failed to protect his constitutional right, and Dr. Gerow failed to inform him that his opinion generated from the evaluation was being used in the penalty phase.

While one might observe the lawyer’s failure to protect a client’s constitutional right, but for the sake of this article, it serves as an important reminder of the forensic mental health expert’s role—and the ethics-related responsibilities inherent in a forensic practice. Informed disclosure, consents, and as-related documents must be encompassed in all forensic evaluations. Even when examinations are court-ordered, evaluees are entitled to know the nature of the examination, for what reasons the examiner is conducting those assessments, and the potential outcomes of those tests.

Practitioners of this science—comprised of shaded gray areas, complexity, and uncertainties—are usually licensed professionals with specialized training that allows the expert to operate within the criminal and/or civil justice system. For over six decades, for example, psychologists provided expert testimony in both criminal and civil courts of law. The goal expected when engaging an expert is to promote not hinder justice. Hence, an expert should be able to help the judge, jury, or attorneys reach a more valid conclusion than would be possible without the expert’s testimony. Forensic mental health experts have to answer questions that are relevant both to the courts and the field. He or she should be able to respond to mental health and related forensic questions with reasonable accuracy, reliability, and validity to help those involved in the legal matter (judges, juries, attorneys, and the like) reach more precise conclusions than would otherwise be possible (Faust and Ziskin, 1988; Nedopil, 2009).

Topics of expert testimonies have included the following: psychiatric assessment, psychological evaluations, malingering, neuropsychological evaluation, psychotherapy, counseling and psychotherapy, criminal and adjudicative responsibility, child custody, brain injury, post-traumatic stress disorder, eyewitness testimony, jury selection, recovered memories, sexual harassment, child neglect and abuse, domestic violence, psychological damage, sanity evaluation, false confessions, depression and suicide, and many more topics as related to mental health issues (Kitaeff, 2011; Terr, 1991). Hence, it is the ability of the mental health professional to render opinions, reach conclusions, and produce findings (usually in a report) in the language of the courtroom that makes the field of forensic mental health desirable and invaluable to the legal system. It is the aim of the science that dictates the professional’s work to reach a conclusion as close to the truth as possible, to investigate what is, or what will be, considering available data, information, facts, collateral information, and possibilities.

For example, the mental health expert may administer a comprehensive psychological evaluation to answer a number of questions: “Is the defendant insane as she claims?” “How severe was the neuropsychological damage or impairment when the client endured a traumatic brain injury due to a moving vehicle accident two years ago?” “Is the sexually accused stepfather a predator, does he possess danger to the society, and how severe or significant is his dangerous behaviors?” “Will the act of violence most likely than not be repeated, how dangerous or severe is his or her aggression and violence?” “Will psychotherapy help this parent be a better parent to her children?” “Will medication stabilize this defendant’s behaviors and psychosis?” “Will the continuation of Cognitive Behavior therapy be more effective than using Applied Behavior Therapeutic Techniques?” “Is this defendant competent to stand trial-why or why not?” “Is she incompetent to manage her 100-million-dollar estate, or should her children that appear to have not been interested in her until now have guardianship rights, and has any bias for either party been considered in this process?”

The expert’s goal is to answer many intertwined truths or fallacies. In the aforementioned questions, different experts will be able to answer the questions. The expert might be a therapist, a psychologist, or a psychiatrist or a combination of all. Was the defendant sane at the time he allegedly committed the crime, what was he thinking and what mental status did he endure at the time the crime was committed, what was his psychiatric history and did it have an implicit or unseen impact on his behaviors? Is she able to comprehend a court procedures, understand her attorney’s decisions and reasoning, or is she mentally and physically competent to manage his financial affairs? Is psychotherapy necessary to maintain desirable behaviors or are medications necessary, why was the defendant not been treated for his psychopathology for over a year? Should the defendant be on both—psychotherapy and psychotropics—and did that impact his behavior on the alleged offense? In all of this, the expert is reaching conclusions by assessing, examining, researching, interviewing, discovering, and reporting results to the legal referral entity. His or her goal is to inside the “black box” (human psyche, cognitions, behaviors, and state of mental health) and see as clearly as possible.

When answering these important questions, the expert seeks to examine, research, analyze, and reach rational conclusions regarding the legal case by attempting to open a window to the partially known or completely unknown, to uncover and analyze the “black box” to shed light that will allow him or her to reveal what is and what is not, to come as close as possible to the truth, and then report results to the court. The expert is allowing those that sit in judgment of the accused to gaze through a conceptual window, to see what have been overlooked, uncovered, revealed with reason, accuracy that is constructed on two important and essential foundations: validity and reliability. The expert looks into the accused’s black box to better understand issues on hand to promote justice—and reach many steps closer to the truth. This is a task that not only relies on field knowledge, professionals, skills, and abilities, but also on strong ethics and sense of purpose that will lead the expert’s direction in any given case.

Unlike other practicing mental health professionals, the forensic mental health expert is not an advocate on behalf of the client, or defendant, and there is no confidentiality guaranties implied or otherwise agreed upon. He or she is also not permitted to have a dual relationship with that client or defendant (e.g., the expert is not permitted to examine and perform therapy to the same client). He or she is able to do both if the referral is a medical referral—and the person is a patient of the treating mental health provider, for example. The mental health expert is just as likely to be testifying for the defense as he/she is for the prosecution. He or she is impartial, neutral, objective, powered by his or her board and mental health law ethics, rules, and regulations.

The goal is to conduct impartial assessment and evaluations of the client or defendant. Their role is to remain neutral and to report just the facts as they are presented. They are seekers of the truth(s), and producers of findings based on facts and results of their evaluations. The role of evaluating a client is challenging, however, because the information obtained by the neutral expert may not always work to the advantage of the accused and/or client. The expert’s code of ethics, his or her own ethics and professionalism, must dictate the responsibility of performing an unbiased and fair evaluation, with a neutral stand and view of the case and all those involved.

Still, it is of utmost importance that one decides the type of expert best suited for a case—and that the legal professional (e.g., attorney, judge, or a legal entity) selects the most suitable mental health expertise for the best fitting of the case in question. It is imperative to recognize that not all mental health professionals possess the same education, degrees, abilities, skills, and licensures—that not all of them do fit for the same purpose you are seeking when appointing to a case. Holding an MD or a PhD does not qualify any expert to be an expert in all areas. Having served a legal entity for a long period of time should not guarantee an expert a continuous hire for all types of cases. Educational background, professional experience, content specific knowledge, skills, character, and abilities should be the identifiers or the deciding factors. The legal entity or professional must do his or her homework and find out if the expert is going to be the right required expert for the case on hand.

Personal liking of the expert, friendships, and connections should be ignored when evaluating an expert. Overlooking those identifiers are common errors some legal professionals make inadvertently. For example, if you wish to assess a client’s cognitive and mental status to see if the defendant is competent to stand trial, mentally competent, and evaluate for sanity, then it is best to select a psychologist/neuropsychologist with strong behavioral and brain science experience. If the expert happens to be an academician (researcher) in addition to being a practitioner, then you have both worlds to serve you as an expert for the cost of one! If you wish to investigate the impact of psychotropic medications on a client that suddenly snapped (had a meltdown) and started shooting in the courthouse, you need to engage a psychiatrist in your legal matters. The psychiatrist will assess the impact of combining alcohol, muscle relaxers, pain killers, acetaminophen and diphenhydramine, and insomnia on defendant’s behaviors and psychological state during the offense.

Most well-trained psychologists and neuropsychologists will be able to advise and make recommendations on this issue, as well. However, if you wish to question why therapy might not have had any impact on your client who abused his 12-year-old son, then you need a licensed clinical social worker (LCSW) or a professional counselor (LPC) to answer the important question of therapy efficacy. Therefore, the following information (a simple guide) can help the legal professional effectively select an expert for the purpose of accuracy and efficiency:

1.     Forensic Psychiatrist: A qualified mental health expert, a medical doctor, with three to four years of medical residency in the areas of psychiatry and/or forensic psychiatry.

Best suited for: clinical interviews with clients/patients, clini­cal diagnoses and psychopharmacological (Psych medications) treatment. Psychiatrists use clinical interview and medical/medication expertise in any given case. Diagnosis and treatment of psychiatric disorders (e.g., major depression, psychosis, and the related). Clinical interviews and psychiatric assessment usually take anywhere between .5–2 hours.

Limitations: not qualified and/or lack of training to administer and interpret neuropsychological and psychological assessments and evaluations. Report is based mostly on a clinical interview, professional opinion, and screeners (e.g., Mini Mental Status Exam).

  2.   Forensic Neurologist: A qualified medical expert, a medical doctor, expert on the nervous system, and diagnoses of neurological disorders. Three to four years of medical resi­dency in the areas of neurology and/or forensics.

Best suited for: to rule out neurological disorders and impairments (e.g., seizures), clinical interviews with clients/patients, clinical diagnoses and treatment using clinical interview, neurological exams, and medical/medication expertise (neurological disorders medications; psychopharmacology).

Limitations: not qualified and/or lack of training to administer and interpret neuropsychological and psychological assessments. Report is based mostly on a clinical interview, professional opinion, and mental health screener (e.g., Mini Mental Status Exam). Clinical interview and examination time depends on type and number of neurological assessments conducted.

  3.   Forensic Clinical Psychologist/Neuropsychologist: A qualified mental health expert, a PhD or a PsyD professional who studies brain-behavior relationship and the field of mental health. Can be specialized in the area of neuropsychology (an intersect between psychology, medicine, and neuroscience), with two to three years of internship for pre- and post-PhD training in a specialized area (e.g., neuropsychology, psychotherapy, forensics, or mental health).

Best suited for: clinical interviews with clients/patients, testing and evaluation using psychological and neuropsychological batteries, clinical diagnoses and treatment is based on thorough psychological and neuropsychological as­sess­ments, analysis, and interpretations. Diagnosis and treatment (using psychotherapy) of psychiatric disorders (e.g., bipolar). A comprehensive evaluation might take anywhere between 2–10+ hours of assessments.

Limitations: inability to prescribe psychotropic medications (only the U.S. military and two states allow psychologists to prescribe medications: New Mexico and Louisiana).

  4.   Licensed Professional Counselor (LPC)/Licensed Clinical Social Worker (LCSW): Usually a master’s level professional, MS, MA, or a PhD in counseling or social work. A licensed professional counselor, LPC (or in some states, “licensed clinical professional counselors” or “licensed mental health counselors”), or a licensed clinical social worker, LCSW, is qualified to provide individual, marital, couple, family, and group counseling to clients.

Best suited for: Counseling, clinical interviews, clinical diagnoses, and treatment as related to psychotherapy. They focus on problem-solving, setting goals, and reaching those goals utilizing psychotherapeutic techniques.

Limitations: In most states, they are only suited for therapy but not diagnosing, assessing, or treating utilizing psychological, neuropsychological, or psychiatric tools and assessments unless under the supervision of a psychologist or neuropsychologist. They can use educational and social assessments. Inability to prescribe psychotropic medications.

Hence, based on the above information, a legal professional should do his or her best in selecting the right skills and abilities of a mental health professional—to better suite the case on hand. Here are some examples for clarity:

A.   John is a 40-year-old Asian American male. He suffers cognitive decline and emotional disturbance since his moving vehicle accident six months ago. You, the legal expert, should do the following:

1.  Request a neurological evaluation of your client to rule out any neurological disorders or impairments;

2.  Request a neuropsychological evaluation of the client. Usually, neurologists refer their patients to neuropsychologists for assessment of neurocognitive impairments (e.g., dementia, Alzheimer’s, traumatic brain injury, and the related), and for a psychological assessment to establish a (baseline) or to distinguish which type of neurocognitive impairment the patient or client has, and its severity the impairment (neuropsychologists’ reports will indicate if the damage is mild, moderate, severe, or profound)—and also to decide if the psychological prob­lems John seem to suffer are due to the accident or other reasons.

Here is another example:

B.   James, a 35-year-old white male, was charged with Indecency with a Child. James was in special education classes K–12. The attorney requests a competency to stand trial, and an evaluation for his anger issues.

Well, in this case, you need to involve a psychologist to conduct a comprehensive psychological or neuropsychological evaluation, as well as a competency evaluation. In addition, if the defendant is on medications or has a psychiatric history (which will be determined by the psychological evaluation), you need to have a psychiatrist review the client’s medications and make recommendations. By doing so, you are able to get inside the “black box” of the defendant and see light at the end of the tunnel, hopefully.

To the reader, a question might surface at the point: “What is involved when psychologically assessing a client?” In psychological testing, the psychologist evaluates the following areas (Heilbrun, K, Marczyk, G. R., and Dematteo, D., 2002, Gregory, R. J. 2011):

1.   Background of the client (educational, social, criminal, psychological, legal, and the related);
2.   Observing and assessing behaviors;
3.   Assessing the personality for psychopathology;
4.   Assessing general intellect and mental abilities;
5.   Assessing the overall psychological status of the client to rule out any mental, psychiatric, or learning disorders and impairments;
6.   Producing a clear report of the findings.

Should a comprehensive neuropsychological assessment be conducted (strongly recommended to help the court and those involved see the full picture by getting into the black box), in addition to the above items, the following should also be assessed:

A.   Comprehensive executive functioning assessment of the higher level executive skills (e.g., sequencing, reasoning, problem solving);
B.   Attention and concentration;
C.   Learning and memory;
D.   Language;
E.   Visual–spatial skills (e.g., perception);
F.   Motor and sensory skills;
G.   Mood and personality sensory skills.

What about malingering?

Malingering is a complicated subject that is—at times and based on case in question—of significant concern to legal professionals, the court, and to most forensic psychologists. The expert will determine if there is a mental illness, or a deceitfulness to accomplish secondary material gain, for example. Your expert witness must be skilled enough to recognize malingering.

A defendant, client, or a patient may be faking a mental illness or exaggerating the degree of the symptoms to avoid or escape prosecution or gain monetary benefits. A concern might rise during the evaluation process, or a legal professional might have a concern, or expect the malingering question to surface in the trial. If so, then the importance of a comprehensive assessment cannot be overstated—which will include assessing the defendant for malingering as he or she is being psychologically evaluated.

Nevertheless, it must be noted that clinical interviews, and mere screeners, will not do the job. Cost is another factor that will minimize comprehensive evaluations and additional well-needed testing. Professional opinions can easily be discarded as personal opinions if not backed up and supported by the two aforementioned foundations: validity and reliability. For example, if the opposing attorney asks a psychiatrist the following: “So, Dr. Akbar, your results of your psychiatric evaluation is based on your clinical interview and a mental exam screener?” Or: “Isn’t that what you call a professional opinion?” “Isn’t that limited since you have no data, no reliable or valid data to support your opinion?” The psychiatrist here failed to perform psychological evaluation or neuropsychological evaluation. At fault also is the attorney who failed to select the right mental health expert if he or she was seeking a comprehensive assessment backed up by data that is reliable and valid! Are the data, numbers, and results you have generated regarding a client suspected of malingering, for example, valid and reliable or are they just based on the expert’s opinion—professional or not?

This question is one of the most critical questions to ask your mental health expert during trial. This applies to almost any evaluation sought by the legal professional (e.g., risk of re-offending, sexual violence, substance abuse, anger and aggression, or future risk of violence). If you do your homework as a legal professional, you will make the right selection, and your expert witness will be knowledgeable, credible, confident, competent, and prepared to answer the toughest, most brilliant, or silliest of asked questions. They will be able to provide clear reports, opinions, insights, decisions, up-to-date jargon-free assessments, objective information, and conclusions that are valid and reliable, as well as directly addressing the issues at hand. They will offer information that will assist with the decision-making of the trier-of-fact, but not make that decision themselves (Darani, 2006; Holmes, R. 1990; Ramsland, 2009; Steel, J. 2010).

Conclusion

Forensic psychology is the intertwining of the law and psychology. This article discussed the process and rendered a guideline for how to select a mental health expert. One of the most important functions of a forensic mental health expert is to be able to come as close to the truth of answering the forensic question on hand as is professionally and knowledgeably possible—to formulate psychological findings in a clear forensic report that is accurate, reliable, valid, ethical, acceptable, and understandable to all involved parties. It involves the expert testimony of a forensic psychologist in a way the courts, legal professionals, and other non-mental health experts can appreciate and comprehend. Hence, for a forensic psychologist to be a credible and competent witness for the courts, he or she must first understand the law and the legal workings of the courtroom, how it relates to his or her field of expertise, and then produce reports that answer forensic questions on hand in a straight and forthcoming manner. However, equally important is the selection by the legal professional of the right expert for the case. A crucial and vital task for the misinformed or uninformed legal professional as he or she selects expert witnesses for the case on hand. The expert testimony of a mental health expert can impact the outcome of a case, greatly making the use of his or her expertise in a trial very important to the entire process.

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Holmes, R. (1990). Profiling Violent Crimes: An Investigative Tool. Newbury Park, CA: Sage.

Leslie, O., Young, S., Valentine,T., & Gudjonsson, G. (2007). Criminal barristers’ opinions and perceptions of mental health expert witnesses. The Journal of Forensic Psychiatry & Psychology, 18, 394–410.

Nedopil, N. (2009).The role of forensic psychiatry in mental health system Europe. Criminal Behavior and Mental Health, 19, 224–234.

Price, M. (2011), American Psychological Association. Supreme Court hears psychologists on prison, video game cases, 42, p.10. Retrieved from http://apa.org/monitor/2011/09supreme-court.aspx.

Ramsland, K. (2009). The facts about fiction: What Grissom could learn about forensic psychology. The Journal of Psychiatry & Law, 37, 37–50.

Rogers, R. (1997). Clinical Assessment of Malingering and Deception. Guilford Press.

Steel, J. (2010). Forensic psychology. Research, clinical practice, and applications. Journal of Forensic Psychiatry & Psychology, 21(2), 317–319. Doi:10.1080/14789940903244981.

Tolou-Shams, M. (2010). The role of the forensic psychologist in child mental health (cover story). Brown University Child & Adolescent Behavior Letter, 26(5), 1–7.

Terr, L. (1991). Childhood trauma: An outline and overview. American Journal of Psychiatry, 148,10–20.

Suppressing Evidence Obtained From Proactive Drug Interdiction Speeding Stops

On November 4, 2016, the government timely filed a Petition for Discretionary Review in Ramirez-Tamayo v. State, No. 07-15-00419-CR, 2016 WL 5874327 (Tex. App.—Amarillo, October 5, 2016, pet. filed), a 2–1 decision. At issue is whether there was sufficient reasonable suspicion to make an arrest following a speed limit violation.

Testimony indicated the initial speeding detention was likely a pretext to investigate a suspected drug smuggler. This as­pect was not questioned. It should have been, because exceeding the speed limit is not reasonable suspicion as a matter of law. Ramirez-Tamayo was driving only 78 mph in a 75 mph zone on an interstate highway. Exceeding the speed limit in Texas is not prohibited conduct. Tollett v. State, 219 S.W. 3d 593, 599 (Tex. App.—Texarkana 2007, pet. ref’d). Texas does not have a “per se” or absolute speed limit law like most other states. Instead, a speed limit violation is merely presumptive of illegal speeding. See also Sieffert v. State, 290 S.W.3d 478, 487–488 (Tex. App.—Amarillo, 2009, no pet.)(an admitted pretext stop for 5 mph over the speed limit that was not challenged).

The principles discussed in this article apply to all statutory presumptions. Other crimes with presumptions lurking within Texas criminal statutes include aggravated assault of a public servant, forgery, and theft. But the speed limit presumption is pivotal because as presently construed, law enforcement has virtual carte blanche to stop whoever it wants whenever it wants.1 It is simply human nature for motorists to exceed speed limits when higher speeds are reasonable. This is almost a certainty when conditions are normal and the speed is only marginally over the limit.2 The Texas Department of Transportation writes about the burden upon the system when reasonable drivers are ticketed.3 This is why most experienced traffic control officers as a general rule of thumb do not ticket motorists for less than 10 mph over the limit in average traffic conditions. Speed traps where limits are set too low for average conditions exacerbate the problem, justifiably engendering anger towards sometimes corrupt city officials for funding themselves on the backs of reasonable drivers.

Critical to the analysis are the particular jury instructions mandated by the Penal Code for speeding trials and for all other statutory presumptions. Judge Cochran noticed that “[m]ost of the time, jury charges present presumptions incorrectly. . . .” Hollander v. State, 414 S.W.3d 746, 753 (Tex.Crim.App. 2013) (Cochran, J., concurring). There is no crime where more Texans are directly affected by presumption charge error than speeding. Trials occur daily in scores of municipal and justice of the peace courts all across the state. As will be discussed, the typical speeding jury charge is unconstitutional, and by extension, so are those for the more serious crimes containing presumptions. Curative instructions are suggested below.

Nature of Presumptions

Among the constellation of potential circumstances that might combine to prove an element of a crime, sometimes a legislature selects one or two commonly recurring fact patterns to assist the state in proving its case. The legal device is a statutory presumption. A presumption is a rule of evidence supplying “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” Insurance Co. v. Weide, 78 U.S. 438, 441–442 (1870).

Like certain other jury instructions, they provide guidance for jurors’ thinking in considering the evidence laid before them. Once in the jury room, jurors necessarily draw inferences from the evidence—both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 168–169 (1979), Powell, J., Brennan, J., Stewart, J., Marshall, J., dissenting). A presumption is “an evidentiary tool that enables the factfinder to proceed by inferential reasoning from one fact to another.” Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000). Note it is a tool or a rule. It is not evidence itself nor is it a supplier of evidence. Guzman v. State, 188 S.W.3d 185, 193 (Tex.Crim.App. 2006). The basic evidentiary fact or facts that support a presumption are known as predicate facts; the ultimate conclusory element inferred by a presumption is known as the ultimate or elemental fact. See Ulster Cnty at 156.

As mentioned, Texas juries are required to be guided by specific instructions when a crime contains a presumption. Tex. Penal Code Ann. § 2.05 (herein PC 2.05). PC 2.05 was added to the Penal Code in 1974 in response to a line of cases from the Supreme Court of the United States striking down conclusive and mandatory presumptions because they reduce the state’s burden to prove its case beyond a reasonable doubt and infringe on the Fifth Amendment right not to testify. Willis v. State, 790 S.W.2d 307, 310 (Tex.Crim.App. 1990). PC 2.05 guarantees presumptions of all stripe are converted into permissive presumptions. Id. Permissive presumptions authorize but do not require a particular inference. Id.

The Constitutional Problem with Permissive Presumptions

A presumption cannot operate to invade the fact-finding function of the jury or deprive a defendant of his constitutional right to make the state prove every element beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 523 (1979).

A presumption which would permit but not require the jury to assume [an elemental fact] from an isolated fact would prejudge a conclusion which the jury should reach on its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.

Morissette v. United States, 342 U.S. 246, 274–275 (1952).

Permissive presumptions are problematical because they “permit juries to avoid assessing the myriad facts which make specific cases unique.” Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979). Permissive presumptions are therefore constitutional only when “instructions plainly [direct] the jury to consider all the circumstances tending to support or contradict the inference. . . .” Ulster Cnty at 162. As shown below, this also holds true in assessing reasonable suspicion, which of course must always take into consideration the totality of the circumstances.

Speeding

Concerning speeding, the elemental fact is a speed greater than is reasonable and prudent under the circumstances then existing. Tex. Transp. Code Ann. § 545.351(a). The predicate facts are the speed and the speed limit. A speed “in excess of the limits . . . is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Tex. Transp. Code Ann. § 545.352(a). Prima facie evidence in this criminal context has long been understood to describe a rebuttable permissive presumption. Floeck v. State, 30 S.W. 794, 797 (Tex.Crim.App. 1895). The prima facie evidence presumption is

. . . by no means a conclusive presumption. Such is not the meaning of the term “prima facie.” It is merely proof of the case, upon which the jury may find a verdict, unless rebutted by other evidence . . . [emphasis added].

Thomas v. State, 474 S.W.2d 692, 695 (Tex.Crim.App. 1972)(a speeding case quoting Floeck).

Lest we forget, as juries so often do in speeding trials, the ultimate issue is the elemental fact, not the predicate facts. Exculpatory or rebuttal evidence of a reasonable speed usually in­cludes combinations and permutations of the following: a mar­ginal difference between the speed and speed limit,4 lack of vehicular traffic in the area, fair weather, adequate lighting, safe roadway design (such as flat terrain with unobstructed sight lines and low risk of foot, cross, or merging traffic), good vehicle handling characteristics, and driver ability.

Do not forget that undue delay is the other side of the coin. Tex. Transp. Code Ann. § 545.363(a) prohibits an operator of a vehicle from driving “so slowly as to impede the normal and reasonable movement of traffic.” This can occur above or below the speed limit. This is because reasonable speeds are not finite and static like the stark number on a speed limit sign. Instead, they plot a “bell curve” continuum, sliding up and down based on dynamically changing conditions, irrespective of the speed limit.

This is how the Massachusetts Supreme Court expressed it over a hundred years ago in construing its prima facie evidence speed limit statute:

The real question in all these cases is whether the speed is greater than was reasonable and proper . . . The jury are to give due weight . . . in connection with the other circumstances disclosed by the testimony whether coming from witnesses called by the government or by the defendant, and if they are satisfied that the speed is greater than was rea­sonable and proper, having regard to traffic, and the use of the way and safety of the public, they should convict the defendant; otherwise they should acquit him.

Commonwealth v. Cassidy, 95 N.E. 214, 215–216 (Mass. 1911).

Texas Jury Instructions Are Unconstitutional

All jury instructions previously in use for presumptions were modified by PC 2.05 commencing with its January 1,1974, effective date:

When this code or another penal law establishes a presumption with respect to any fact, [the jury is to be instructed as follows: if] the facts giving rise to the presumption [are] proven beyond a reasonable doubt, the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find.

PC 2.05(a)(A)(B). This permits the jury to ignore or apply a presumption in all circumstances, including when other evidence demonstrates the presumption to be irrational under the facts of the case. Prosecutors routinely take advantage of this. Trial judges do have a the safety valve power to direct a verdict of Not Guilty

if the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.

PC 2.05(a)(1). Few judges, however, are willing to take a case out of the hands of a jury for fear of reversal.

To the jury itself, the Court of Criminal Appeals provided similar guidance when it remanded a case that failed to instruct the jury that

it is free to reject the presumption should it find that the circumstances presented by the State’s case as a whole impugn the inference the presumption authorizes it to convict upon. . . .

Bellamy v. State, 742 S.W.2d 677, 684 (Tex.Crim.App. 1987) (en banc)(Miller, J., concurring). But being free to reject the presumption is not the same as “must reject” the presumption. In sum, since absolutely nothing in PC 2.05 forbids the judge from submitting a case to a jury or forbids the jury from applying the presumption when the circumstances as a whole contradict the inference, there is fertile ground for false convictions when other evidence casts doubt on whether the speed was greater than was reasonable and prudent at the same time the speed and the speed limit are proven beyond a reasonable doubt. PC 2.05 instructions are therefore unconstitutional under Morissette because they allow irrational outcomes.5

Curative Instructions

These constitutional concerns are consistent with the pithy metaphors articulated over the years. For instance, presumptions “may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.” Mockowik v. Kansas City, St. J. & C. B. R.R., 94 S. W. 256 (Mo. 1906). Also,
“[p]resumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.” Lincoln v. French, 105 U.S. 614, 617 (1882). Finally,

a presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier of facts.

Combined Am. Ins. Co. v. Blanton, 353 S.W.2d 847, 849 (Tex. 1962), citing Jones on Evidence § 32 (2d ed.).

A correct instruction will fully implement PC 2.05 and at the same time prevent the presumption from operating when reasonable inferences from actual evidentiary facts conflict with what the legislature predicted would prove the elemental fact. The instructions should plainly explain the mechanism for independently reaching conclusions from all of the direct and circumstantial evidence, including whatever weight the jury wants to put on the predicate facts.

Whether [the elemental fact] existed, the jury must determine, not only from the [predicate facts], but from that together with defendant’s testimony and all of the surrounding circumstances.

Morissette at 276.

This begs the question: How do we get this esoteric idea across to the average juror? One approach comes from PC 2.05(a)(1) verbiage bearing on the judge’s duty to submit the case to the jury “unless . . . satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.” Pennsylvania uses a presumption for intoxication, and the Supreme Court of Pennsylvania said this:

The jury should be instructed that the [blood] test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the in­flu­ence of intoxicating liquor, they should return a verdict of “not guilty.”

Commonwealth v. DiFrancesco, 329 A.2d 204, 211 (Pa. 1974). An excellent alternative comes from two different Tenth Circuit three-judge panels handed down unanimously nine years apart: “[A] better instruction would have told the jury to draw the inference ‘only if in light of all of the other evidence, . . . [the predicate facts] convinced the jury beyond a reasonable doubt of the elemental fact.’” United States v. Berry, 717 F.3d 823, 832 (10th Cir. 2013), citing and reiterating United States v. Cota-Meza, 367 F.3d 1218, 1222–1223 (10th Cir. 2004).

The supplemental jury instruction suggested below is taken from the Tenth Circuit’s approach. It clearly, succinctly, and constitutionally reconciles the reasonable inferences reached from direct and circumstantial exculpatory evidence at the same time predicate facts are proven to the requisite level of certainty.

You may find the defendant guilty only if in light of all of the other evidence you are convinced beyond a reasonable doubt that the defendant’s speed was greater than was reasonable and prudent under the circumstances then existing.

Proof of Predicate Facts Does Not Confer Reasonable Suspicion as a Matter of Law

Just as facts that do not amount to probable cause in isolation can do so when combined with other facts, Loesch v. State, 958 S.W.2d 830, 832 (Tex.Crim.App. 1997), the corollary is also true. Isolating the predicate facts to the exclusion of the rest of the evi­dence is improper reasonable suspicion analysis. See Thomas v. City of Galveston, 800 F. Supp. 2d 826 (S.D. Tex. 2011), with its exhaustive review of cases holding that additional facts objectively supporting an affirmative defense negate reasonable sus­picion that would otherwise exist. See also United States v. Pena-Montes, 589 F. 3d 1048 (10th Cir. 2009), where an officer at first possesses reasonable suspicion of an illegal temporary license plate mounted on a passing car, then loses it upon closer inspection as he approached the vehicle but before he gets close enough to the driver to make personal contact. The discussion of the various clues of drug possession in the majority’s Ramirez-Tamayo Amarillo Court of Appeals opinion is also instructive: “[T]hat they may be useful in initially capturing the officer’s attention is beyond doubt. But, the appearance of those characteristics in a particular situation do not ipso facto authorize a temporary detention.” RamirezTamayo at 2.

When monitoring traffic for speeding, the officer might have momentary reasonable suspicion when observing the radar or laser returning a number above the speed limit. But that suspicion can just as quickly vanish dependent upon other objective circumstances known to the officer. This analysis may seem novel, but it is simply another manifestation of the axiomatic Fourth Amendment totality of the circumstances. The overriding consideration is the specific facts as they objectively relate to the elemental fact. See Castro v. State, 227 S.W. 3d 737, 742 (Tex.Crim.App. 2007), listing speeding as an example of a subjective crime requiring underpinning specifics. It jibes with the jury instructions analysis above. When the circumstances as a whole rebut the inference, the presumption does not come into play for purposes of reasonable suspicion the same as it disappears from jury deliberations.

Existing Texas Fourth Amendment Jurisprudence Concerning Speeding

Many opinions are like Ramirez-Tamayo in the sense that a speed over the speed limit is simply assumed reasonable suspicion. The reason for the initial detention is mentioned only in passing as part of the procedural history preceding the discussion of the substantive issue on appeal. Typically, when there is a contested reasonable suspicion issue concerning speeding, it is based on a credibility contest between the stopping officer and the defendant over whether the defendant exceeded the speed limit. Sometimes there is a dispute as to the reliability of the instrument measuring the speed. These opinions rarely if ever distinguish the elemental fact of a reasonable and prudent speed. As a result, they often contain less than precise language. It is easy to read them to support a per se reasonable suspicion rule when they don’t. E.g., Madden v. State, 242 S.W.3d 504, 511 (Tex.Crim.App. 2007).

There are only four unpublished opinions to date where the defense argued for suppressing evidence due to a reasonable speed: United States v. Castanon, No. 06-40642, 2007 WL 1560127, 229 Fed. Appx. 312 (5th Cir. 2007)(not designated for publication); Warren v. State, 05-08-01431-CR (Tex.App.—Dallas 2009, no pet.)(not designated for publication); Fluharty v Texas, 05-08-01470-CR (Tex. App.—Dallas 2009, no pet.)(not designated for publication); and Bland v. Texas Dept. of Public Safety, (Tex. App. 14-12-01057-CV—Houston [14th Dist.], delivered July 23, 2013, pet. denied). In the main, the rationales miss the mark. The opinions often rely on inapposite cases or cir­cular reasoning, as illustrated by the per curiam Fifth Circuit Castanon opinion, the first of the four cases.

Police stopped Castanon for speeding. Castanon argues that his conduct was not a traffic violation, however, because the investigating officer agreed with defense counsel on cross-examination that his speed was not unreasonable. It is undisputed that Castanon was driving 71 miles per hour and that the speed limit was either 65 or 70 miles per hour. By driving above the posted speed limit, Castanon’s conduct constituted prima facie evidence of a traffic violation.

Castanon at 313. This superficially implies prima facie evidence is actual evidence sufficient to make a prima facie case. There is no mention of a presumption or Section 2.05.6

Conclusion

Presumptions have been called “the slipperiest member of the family of legal terms. . . .” McCormick on Evidence (3d ed., Cleary, ed.), p. 965 (1984). To the extent we fail to force their constitutional implementation, we fail the system in our role as advocates. Today, the Texas Municipal Court Education Center publishes an exemplar speeding jury charge for use by all traffic judges.7 It does not incorporate PC 2.05 at all. Plus, it is replete with confusing legalese that implies prima facie evidence is the same as a prima facie case. It virtually guarantees a conviction. Likewise, the definition of prima facie evidence used by many municipalities does not integrate PC 2.05. Instead, such instructions say it is “evidence that stands proved unless rebutted by other evidence.” This is an unconstitutional mandatory presumption. See Guzman at 193, n. 17. Even the recently published 2015 Texas Criminal Pattern Jury Charges–General, Evidentiary and Ancillary Instructions does not provide the necessary guidance for handling rebuttal evidence. The jury charge should explain the presumption in the specific terms of the crime, “the clear mandate” of PC 2.05(a)(1). Bellamy at 686.

Jury instructions must not only comply with PC 2.05 in terms of the particular crime, but they must also guarantee that the jury assess the credibility and weight of the evidence as a whole, unencumbered by undue influence of a presumption. The in­struction suggested above causes the presumption to vanish when credible rebuttal evidence is introduced. This satisfies due process by preventing false convictions when actual facts ex­pose a presumption to be a fiction.

As for reasonable suspicion based on nothing more than predicate facts and a presumption, the analysis ends there only if the defense fails to appreciate its significance or if there is no exculpatory evidence. The totality of the circumstances known to the officer must be elicited, not ignored. When other evidence objectively rebuts the presumption, the presumption disappears, as does reasonable suspicion.

Notes

1. Anecdotally, interdiction efforts in the Panhandle use speeding as a pretext strategy. Using a clearly marked patrol unit, they drive below the speed limit on known drug smuggling routes. Any vehicle that comes up from behind but does not pass is profiled. The marked car exits the freeway and radios ahead the identifiers for the profiled vehicle. Enter an unmarked car, which promptly pulls the profiled car over once there is any nominal speed over limit.

2. http://www.motorists.org/issues/speed-limits/studies/ (last visited Nov. 8, 2016).

3. “If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop a disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal with reasonable people being ticketed for exceeding the posted speed limit. . . .” http://www.txdot.gov/government/enforcement/speed-limits/studies.html (last visited September 14, 2016).

4. There is also the argument that when the speed only slightly exceeds the speed limit, the speed limit presumption itself is unconstitutional. There must be “a reasonably tight logical fit between the basic facts proved and the ultimate fact inferred.” Brown v. State, 122 S.W.3d 794, 79 (Tex.Crim.App. 2003), citing Leary v. United States, 395 U.S. 6, 36 (1969). Presumptions are evaluated for constitutionality “as applied in the record before the court,” not on their face. Gersh v. State, 714 S.W.2d 80, 81 (Tex.App.—Dallas 1986, pet. ref’d), 738 S.W.2d 287 (Tex.Crim.App. 1987), citing Ulster Cnty. For example, the speed limit was recently raised from 70 mph to 75 mph on many Texas highways. It is not likely that 75 mph or less in a 70 mph zone is greater than would be reasonable in normal circumstances.

5. The general rule is that only elements of a crime need be proven beyond a reasonable doubt. Berry at 831–832. Individual evidentiary facts usually do not require this level of confidence. Id. See Ulster at 167. Speeding is an exception, however, even without PC 2.05. In order to prosecute a speeding case, both the ticket and the charging instrument in a speeding trial must allege the speed and the speed limit. Tex. Transp. Code Ann. § 543.010. Thus the speed and speed limit are two of the elements for the crime of speeding. If there is a reasonable doubt as to either the speed or the speed limit, the prosecution has failed to meet its burden of proof and the defendant is not guilty.

6. This is not all that surprising. Intermediate appellate courts have both civil and criminal jurisdiction. The term of art prima facie evidence is inherently ambiguous, with a different meaning in a civil context. Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex. 1975). It is also easily confused with prima facie case, an entirely different civil concept. See Evans v. State, 623 S.W.2d 924 (Tex.Crim.App. 1981), where the trial judge conflated PC 2.05, prima facie evidence, and prima facie case. Finally, because it contains the word “evidence,” it is counter-intuitive.

7. http://www.tmcec.com/resources/jury-charges/ (last visited October 5, 2016).

Look Here: 4th Amendment Musings

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Increasingly, police are using the “imminent destruction of evidence” justification for warrantless entry into residences in drug cases.1 At the outset, it is important to remember that in order to rely on this exception, the police first must have probable cause—no PC, no exception.2 If probable cause exists, the State must still show that the destruction of evidence was imminent in the present case.

Specific Instances Required; Generalizations Insufficient

Specific, affirmative acts evidencing imminent destruction in the case at hand are required to support warrantless entry into a residence. Mere generalizations about the way people in possession of contraband behave when encountered by police (“in my training and experience . . .”) are insufficient.3

So for example, it is insufficient if an officer simply testifies that in his experience, persons in possession of drugs often destroy them unless supported by actual, affirmative acts in the present case evidencing imminent destruction.4 Likewise, testimony that in the officer’s subjective experience, persons in possession of drugs tend to react violently when encountered by police is also insufficient, unless there is specific evidence of this in the present case.5 And, that the specific drug at issue is capable of being easily destroyed—cocaine, for example—is not evidence that it faced imminent destruction in the present case without some affirmative act evidencing imminent destruction.6

Absent the sound of a toilet repeatedly flushing, or the garbage disposal running, police often use sounds of human movement they allegedly hear from inside the residence as evidence that contraband is being destroyed. However, sounds of human movement, without more, generally require too far a logical leap to evidence imminent destruction of contraband. For example, the smell of contraband and the sound of movement, shuffling, or even someone running up the stairs after police knock on the door is generally insufficient to establish that the destruction of evidence was imminent.7

Exigencies Are Reserved for Grave Circumstances, Not Inconvenience

As a final note, it is often worthwhile to remind courts that exigencies are reserved for grave circumstances, not convenience.

When exceptions to the warrant requirement for entry into a citizen’s home are discussed, it is abundantly clear that such exceptions are reserved for only the gravest circumstances:

This is not a case where officers, passing by on the street, hear a shot and cry for help and demand entrance in the name of the law. They had been following McDonald and keeping him under surveillance for two months at [his residence] . . . [N]o reason, except inconvenience of the officers and delay in preparing papers and getting them before a magistrate appears for the failure to seek a search warrant.8

The clear import of the McDonald court’s language is that because warrantless entry into the home is, indeed, the “chief evil” against which the Fourth Amendment protects us, exceptions to its protection are not be treated lightly:

[A]bsent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.9

Thus, the seriousness of the criminal conduct at hand is relevant and worthy of consideration in instances where police have entered a home without a warrant or consent. Some level of proportionality is required: Criminal operations which do not “endanger life or limb” or the “peace and good order of the community even if continued for another day or two” generally will not justify warrantless entry.10

Such mala prohibita as mere possession would seldom rise to the level of “grave emergency,” with the possible exception of a violation of Health and Safety Code sections 481.10 (“Use of a Child In the Commission of an Offense”) and 481.141 (“Manufacture/Delivery Causing Death or Serious Bodily Injury.”)

Notes

1. See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.Crim.App. 2005)(for discussion on imminent destruction of evidence as exception to warrant requirement).

2. See, e.g. id.; Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007).

3. Turrubiate v. State, 399 S.W.3d (“a court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent”).

4. Id.; see also Price v. State, 93 S.W.3d 751 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d.)(“the police should have at least some specific facts to the case at hand that would justify their [warrantless entry predicated on imminent destruction of evidence] . . . the police did not see appellant engaged in the act of destroying evidence, nor had they witnessed any specific act suggesting destruction was imminent”).

5. See, e.g. Davila v. State, 441 S.W.3d 751 (Tex.App.—Houston [1st Dist.] 2014, pet. ref’d.)(appellant appeared “nervous and in a hurry” and had “known associates nearby”).

6. Grimaldo v. State, 223 S.W.3d 429 (Tex.App.—Amarillo 2006)(“an officer’s statement that he simply relied on his experience and training to arrive at the conclusion [that evidence was likely to be destroyed] does not fill the void”).

7. See, e.g. Johnson v. United States, 333 U.S. 10 (1948)(holding unlawful entry into residence premised on imminent destruction of evidence when police went to room based on tip about drug use inside, smell of opium emanating from room, delay in answering door, and sound of shuffling inside after police knocked); Laysone v. State, No. 12-14-00050-CR (Tex.App.—Tyler, July 23, 2014)(memorandum opinion)(not designated for publication)(holding smell of marijuana from inside residence, observation of marijuana inside residence, and sound of footsteps running up the stairs after knocking insufficient to justify warrantless entry into residence premised on imminent destruction of evidence); English v. State, 647 S.W.2d 667 (Tex.Crim.App. 1983)(en banc)(holding warrantless entry into home to search for robbery suspect premised on “bumping, banging, or rustling” from inside apartment does not create exigency premised on imminent destruction of evidence).

8. McDonald v. United States, 335 U.S. 451, 455 (1948).

9. Id.

10. Id. at 459–60.

December 2016 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | DWI Jury Punishment – By John Gioffredi
25 | The Roles of Forensic Mental Health Experts in the Legal System: What Practitioners of Law May Need to Know – By M. K. Hamza
33 | Suppressing Evidence Obtained From Proactive Drug Interdiction Speeding Stop – By Robert Eutsler
39 | Drug Charge 4th Amendment Issues: Imminent Destruction of Evidence – By George Roland

Columns
6 | President’s Message
8 | Executive Director’s Perspective
9 | Editor’s Comment
11 | Off the Back
14 | Federal Corner
18 | Shout Outs

Departments
5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: Numero Seis: Happy Holidays – By John A. Convery

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While writing this, it struck me that the holidays are upon us. Neighborhoods are starting to sparkle with green and red lights. Christmas music is playing everywhere. I always find that the end of a year is a good time to reflect on the past year, both personally and professionally, the good and the bad, the joyous and the heartbreaking. I recognize the things that I am grateful for, and know that I am blessed with much more than anyone deserves.

I am particularly grateful this year for the family that is TCDLA. When joining TCDLA in 1984, I knew I was going to be the recipient of many resources, people freely willing to help me along the way, amazing seminars, and other materials to develop my practice. What I didn’t know then was that I was joining an association that is as much about personal connections as it is about professional relationships.

I could easily talk about what an amazing year TCDLA has had, and that could fill up pages of the Voice. TCDLA, through the CDLP Committee with chairman John Hunter Smith at the helm, has put on innovative and exceptional seminars across the state, made possible by the Court of Criminal Appeal’s grant. It’s great to see new committee chairmen invigorate their work and add new, energetic committee members. New memberships and renewals continue to come in. We have lively discussions on the listserve, and TCDLA received an all-time high in applications from members wanting to join the Board of Directors. I am also pleased with the ongoing efforts of the Legislative Committee, under the direction of Bill Harris, as we prepare for what will likely be a difficult session starting in January.

All of those accomplishments—and many, many others—truly deserve specific recognition. This year, I am compelled to express my gratitude for the lifelong friendships that I have made and that I have been a witness to as a result of my association with TCDLA. Two examples of the dedicated, family aspect of TCDLA deeply touched my heart this year.

Many of us felt helpless and concerned as Executive Director Joseph Martinez’ wife, Bertha, became increasingly ill over the summer and passed away a few weeks ago. We watched with feelings of sadness and confusion as she went in and out of doctor visits, emergency rooms, and hospitals, days or weeks at a time with no official diagnosis that made sense to form the basis of a treatment plan. Those who knew Bertha or who spent any period of time with her will tell you they were the better for it. Bertha was an op­timistic and positive woman who always looked at life with hum­ble gratitude. She viewed difficult challenges as a blessing and an opportunity to serve God or help others. She was kind and gentle, but, at the same time, a fierce advocate and supporter of TCDLA and the work we do. She believed to her core that the work we do as criminal defense lawyers to help the vulnerable and marginalized was noble and valuable.

We also watched Joseph as he went through the nightmare of seeing his vibrant wife lose her strength slowly, holding on as long as she could. We saw Joseph try to be strong, but his face and voice revealed his fear and exhaustion. Bertha’s rosary and funeral revealed just how much she meant to TCDLA. Past presidents and members came from the far reaches of the state to pay their respects. They did this because TCDLA is a family. As we move forward, especially during the holidays, let us continue to remember Bertha and be there for Joseph.

I am also grateful to Tim Evans and Lydia Clay-Jackson for their selfless dedication to the Trial College. As you all know, the Trial College is one of the most praised and anticipated seminars of the year for TCDLA. There are always more student applicants that can be accommodated, and the faculty is always invested and excited to participate. The College has been as successful as it is because of their commitment to the Trial College and to TCDLA.

In 2017, Tim and Lydia will both become Deans Emeritus of the Trial College and will participate in the planning and future direction of the College. I have appointed Lance Evans and Kerri Anderson-Donica to serve as the new deans. Both have demonstrated a commitment to the Trial College and have been actively participating as faculty for many years. Tim and Lydia will continue to be leaders and provide important guidance to the new deans, again promoting the personal and family-like relationships of the TCDLA participants. Lance and Kerri will serve a four-year term that can be renewed one time. This way, going forward, we will be able to involve more leaders at Trial College, keep the program diverse, and energize faculty and students. Thank you Tim and Lydia for your outstanding leadership—and Lance and Kerri for your willingness to serve.

These two instances represent examples of my gratitude for the people in TCDLA. I hope you can similarly look back over the year and find an example of a personal connection within the association for which you are grateful. When I get caught up in the day-to-day headaches or annoyances of my practice, I try to find a quiet moment to reflect on the many blessings in my life.

Friends, I wish you all the best this holiday season. I am grateful for each of you.

Executive Director’s Perspective: We Are Family – By Joseph A. Martinez

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As of November 1, 2016, I have had the privilege and honor to serve the membership of TCDLA for 15 years. In that time I have spoken and written of the TCDLA family. I have come to a profound understanding of what that meant in the last four months.

My wife and life partner, Guadalupe Bertha Duarte Martinez, passed away and went to the Lord’s side on October 27, 2016. My family wants to sincerely thank all of the TCDLA family who have sent flowers, donations, cards, emails, texts, and phone calls—and who attended the services—from all across Texas. My TCDLA family has come to help us out in this most difficult time. That is what families do, take care of each other, and we are most grateful. I often wondered in the past what purpose did the Lord have bringing me to TCDLA? I now know with certainty. Michael Heiskell (Fort Worth) and his family have started and endowed the Bertha Martinez Travel Scholarship to the Texas Criminal Trial College. Contributions can be made to the scholarship fund through TCDLEI.

Bill filing has begun for the 85th Texas Legislative session. TCDLA Legislative Committee Chair Bill Harris (Fort Worth) and TCDLA General Counsel Andrea Keilen (Austin) are preparing for the session. Please contract them if you have any questions. Andrea can be reached at . If you are a TCDLA member, please sign up for the TCDLA Legislative Listserve to receive valuable updates.

We thank our course directors, John Hunter Smith (Sherman) and Roberto Balli (Laredo), for the Beating Drum for Justice CLE held in Laredo in October. Thanks to them and our speakers we had 42 attendees.

We thank course directors Bobby Barrera, Michael Gross, and Adam Kobs (all from San Antonio) for the 12th Annual Advanced DWI CLE held in San Antonio. Thanks to them and our speakers, we had 92 attendees.

Weren’t able to attend this year’s 29th Annual 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 you like to re-energize or jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Editor’s Comment: Lessons Learned – By Sarah Roland

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It’s an understatement to say that a lot has happened in the last month. There’s been a lot to absorb no matter your walk in life. A tremendous Fall Classic and a jaw-dropping presidential election. History has been made, but to call either event groundbreaking doesn’t come close to estimating their impacts or importance in the world of sports and around the world. Whatever the allegiance—whether Cub or Indian, Trump or Clinton—people have been instantly divided. Either a new dawn is breaking or the sun is setting. But in absorbing these monumental events there are some lessons we, as criminal defense lawyers, can (re)learn and apply to our trial practice:

1. America Loves an Underdog

There are underdogs in every aspect of life. For 108 long years, the Cubs have been the preeminent underdog. When they did manage to make it to the series, they always came up short. And it is no secret that Trump was the underdog from the primary. He seemed to revel in the fact that he was the unlikeliest. And yet, Americans rooted the Cubs and Trump to victory.

We need to capitalize on this in our trials. According to the Drama Triangle, in social interaction there is always a rescuer, persecutor, and victim. The jury is always the rescuer. The rescuer always rescues the victim. Therefore, the task for us, as criminal defense lawyers, is to flip the normal roles—from defendant/persecutor to defendant/victim. This isn’t easy to do, but when accomplished will always result in a win (however that term be defined for a particular case).

2. Passion Matters

Cubs fans are like no other. They are virtually in a class of their own—unparalleled in their allegiance and forever hopeful about the next season. To say they are passionate may be an understatement.

The same can be said for Trump supporters. Despite acknowledged campaign stumbles, numerous gaffes, and openly offensive remarks, his supporters remained loyal to the end.

The lesson here is that we must be passionate about what we do. Every case. Every time. Lives and freedom depend on it. A jury can spot a fake a mile away. Logic without any emotion will never carry the day in a courtroom. Allow yourself to feel and allow those feelings to show.

3. Victory Loves Preparation

Make no mistake about it, neither the Cubs’ nor Trump’s victory would have been possible without preparation. Joe Maddon came to the Cubs organization in the fall of 2014 and began laying the groundwork and recruiting the talent for a World Series win. Trump was busy laying the foundation for his presidential bid at the turn of the century, and the RNC provided the permanent ground game for his win in 2012 after Romney’s loss. Preparation, mixed with a little luck, is key.

The same is true for trial work. Preparation starts long before we ever set foot into the courtroom. It starts with the first meeting. Really listening, researching, looking at different angles, knowing the law and the case better than anyone else involved. Diligent preparation allows us to capitalize on opportunities that present themselves during trial. And a little luck never hurt anyone either.

4. If You Can’t Win, Don’t Lose

My Dad used to say this to me. I didn’t understand it at first. I remember that he said it when I started playing soccer and little league softball. He would tell me to think about it. The answer—at least as applied to my sports career at that time—was to tie. And along with that lesson, we were always taught to be good sports—to always fight like hell but to win, and lose, graciously. That can be hard to do.

Clinton didn’t win the White House but she won the popular vote. She conceded graciously, acknowledged the pain, and reminded her supporters to keep fighting and never give up.

The Indians are the 2016 ALCS champs. Going seven games and into the extra innings in Game 7 of the World Series is about as close as a World Series can possibly get. By any standard, the Indians had a winning season.

Mistrials and lesser included offenses are the obvious parallels in criminal practice. A win is not necessarily always a “not guilty.”

5. It Ain’t Over ’til It’s Over

The New York Times headline said it all: “Chicago Cubs, World Series Champions: Game 7 Provides Excruciating Test.” Indeed, it was. Game 7 went into the 10th inning before the Cubs were able to rally and clinch the win, thus breaking “the curse.” “It was like a heavyweight fight, man. Just blow for blow, everybody playing their heart out,” said second baseman and World Series MVP Ben Zobrist.

No one predicted a Trump victory. Not in the days and weeks leading up to the election and not even on Election Day. It was reported that a senior adviser in the Trump camp said—on election night—that it would take a miracle for Trump to win. But as the returns continued to come in, against all odds, a Trump win became a probability and then a reality.

The lesson for us is to not give up. Not ever. Give it everything down to the very end. A case may look and feel hopeless, but keep fighting. You never know . . .

Off the Back: A Toxicological Guide to Retrograde Extrapolation Cross-Examination – By Stephen Gustitis

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Prosecutors like to use it. Occasionally, we may like it, too. Retrograde extrapolation is the method by which one estimates a person’s BAC at the time of driving based upon a chemical test result later in time. Swedish physician Erik M. P. Widmark first calculated absorption and elimination rates of alcohol in the body. Widmark created what we know today as the “blood alcohol curve,” which represented the rise and fall of a person’s BAC as their body absorbs and eliminates alcohol.1 The rate of absorption, distribution, and elimination varies greatly between individuals and can have a substantial effect on someone’s intoxication and chemical test results. Prosecutors may use retrograde extrapolation to argue a person’s BAC at the time of driving exceeded the .08 legal limit based on a test minutes (or hours) after the stop.

Conversely, the defense may posit an alternative explanation of the chemical test evidence. By using retrograde extrapolation, they may endeavor to create reasonable doubt about whether the person’s BAC was under .08 at the time of driving. This is efficacious when the person looked sober on the video and the prosector’s “loss of normal use” theory is weak. Regardless of the objective, each retrograde extrapolation cross-examination requires an understanding of important toxicological principles to execute the examination with best effect. Today we undertake to develop a simple guide to these principles to help the planning of your next retrograde extrapolation cross-examination. The guide is intended as a starting point for those interested in becoming proficient in this area of trial practice. And like any area of trial advocacy, proficiency takes work, much time, and detailed independent study.

An essential library resource for the DWI trial attorney is a learned treatise from which to study these principles. My favorite is Garriott’s Medicolegal Aspects of Alcohol, now in its sixth edition.2 Garriott’s is a multi-chaptered book authored by leaders in the field of forensic toxicology and alcohol pharmacology. Even more importantly, many of the State’s chemists and technical supervisors are familiar with Garriott’s and willingly concede it’s an authoritative treatise in their area of expertise. Further, they also concede many of the contributing authors are experts in their respective fields. This helps when you venture outside Garriott’s for authoritative sources published by a contributing author.

If we aspire to suppress the State’s use of retrograde extrapolation evidence, then preserving error is the first step in developing an effective cross-examination. However, we’ll delay a discussion of error preservation until next month’s article since our toxicological guide will help use better understand the error preservation process. To put it briefly, preserving error may involve attacking the scientific theory of retrograde extrapolation, the technique applying the theory, and the theory’s application to our client’s case in particular. We also have opportunity to attack the expert witnesses themselves by challenging their ability to effectively communicate the science, the technique, its problems and pitfalls. Key cases for preserving error are Mata v. State, 122 S.W.3d 813 (Tex. Crim. App. 2003), Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Rules of Evidence 401, 402, 403, 702, and 705 are instrumental, as well. Lastly, if you utilize retrograde extrapolation as exculpatory evidence, then be prepared to respond to similar prosecution objections.

The position of a person’s BAC curve at the time of driving and at the time of chemical testing is critical, as this will determine whether BAC increases, remains unchanged, or decreases after the actual driving incident.3 Consequently, the first question to consider in retrograde extrapolation is this: When did the person’s BAC peak? The time of peak BAC is important since any extrapolation depends upon whether the person was still ab­sorbing alcohol into their system, at their peak, or were in the elimination phase at the time of the chemical test. Most DWI prosecutions involve a single breath or blood test result. Since a single test cannot determine when a person reached peak BAC, the time to peak BAC can only be inferred by knowledge of other critical facts. These facts may not be known by the State’s expert. Peak BAC and the time to peak after drinking stops depends on the rate of alcohol absorption. The general considerations are: (a) how much (and what) alcohol the person consumed; (b) over what time period the person drank (first and last drink times); and (c) gastric emptying.4

More specifically, the time to peak BAC depends on facts particular to the person on the day in question and include: (1) the presence and type of food in the stomach; (2) when the food was consumed; (3) the quantity of alcohol consumed; (4) the type of alcohol consumed; (5) the duration of drinking; and (6) time of the last drink; (7) the person’s mental state; (8) gender; (9) weight; (10) their typical drinking pattern; and (11) tolerance to alcohol.5 Generally, faster (and higher) peaks occur when moderate amounts of alcohol are consumed over a short period of time on an empty stomach (the chug-a-lug scenario). Conversely, slower (and lower) peaks occur when drinking is spread out over a longer period of time and food is contemporaneously consumed (the typical social drinking pattern).6

When the State’s expert is challenged on cross-examination, they should admit how important the time of peak BAC is to their retrograde extrapolation. Use leading questions to establish this point. Further, every conscientious expert should admit that a single test result cannot determine where on the BAC curve your client was at test time. Consequently, they should also admit that without multiple tests results, specific individual characteristics about your client must be known to estimate the time of peak BAC. Depending upon the efficacy of the police investigation, the expert often knows only the time of the stop, the time of the test, your client’s weight, and your client’s gender. They should also admit that the fewer individual characteristics known to them, the more speculative their retrograde extrapolation will be.

Moreover, experts should also admit the longer the time between driving time and chemical test time, the less reliable their extrapolation opinion. However, be aware that many State experts will opine that peak BAC occurs within one (1) hour of the last drink. However, the studies show the contrary. In fact, Dr. A. W. Jones has stated that “[m]ost subjects reach peak BAC within 60 minutes after the end of drinking but some required 120 minutes or more.7 The variable length of time to peak BAC is another factor casting doubt upon when your client reached maximum alcohol absorption. Once you’ve muddied the waters about the time to peak BAC, the next attack follows.

If your client was still absorbing alcohol at the time of the chemical test, then retrograde extrapolation would show their BAC at driving time was lower. How much lower is, obviously, the key unknown. Retrograde extrapolation results, when testing during the absorption phase, depend on the absorption rate. Absorption rates are extremely variable and are rarely quoted in the research literature due to this variability. In brief, the rate is dependent upon the many individual characteristics about your client we examined above. Because of the many factors affecting absorption there are no “standard” rates. Again, the rate depends on the presence and type of food in the stomach since alcohol is absorbed from the stomach and small intestine by diffusion.

Food in the stomach generally delays absorption as the alcohol remains in the stomach and is absorbed much more slowly. After passing into the small intestine, absorption occurs quickly due to the intestine’s large surface area and rich blood supply. Generally, faster absorption rates occur when moderate amounts of alcohol are consumed on an empty stomach.8 In that scenario, the retrograde extrapolation would subtract a larger alcohol number (g/dL/hr) from the test time result. Slower rates occur when drinking is spread out over longer periods of time.9 There, the retrograde extrapolation would subtract a smaller alcohol number (g/dL/hr) from the test time result. Since the State’s expert rarely knows how fast (or slow) your client was absorbing alcohol, the extrapolation numbers they use are speculative. But intuitively, we’d want the largest number possible subtracted from test time BAC.

If your client had reached peak BAC and was now eliminating alcohol at test time, then retrograde extrapolation would show their driving time BAC was higher. The expert would attempt to show this using “standard” elimination rates. In other words, they would add alcohol (g/dL/hr) to the test time result to obtain a driving time BAC (it’s also possible that test time BAC might be the same as driving time BAC if the peak occurred between driving time and test time).

A common elimination rate used by State experts is .15 g/dL/hr. However, the studies show elimination rates can vary anywhere between 0.08 g/dL/hr and 0.35 g/dL/hr.10 The most trustworthy method to determine your client’s elimination rate would be to follow their entire post-peak phase by taking repeated test samples and then performing a linear regression to determine the elimination rate. This, of course, is never done. Consequently, the expert should admit that elimination rates vary depending upon individual factors unknown to them. Don’t let them get away with using “average” rates of elimination (unless it helps you) since the expert has no idea whether your client is average or not. Confront them with Garriott’s, or another treatise or study they consider authoritative on the subject, to show that research has proven that elimination rates can vary widely.

Measurement uncertainty is inherent in every scientific process. Although not directly applicable to retrograde extrapolation, it presents an interesting challenge to any extrapolation opinion. Measurement uncertainty relates to the range of values attributed to a single measured quantity. It’s important because no measurement can ever tell us what a quantity’s true value is. At best, the measuring system provides a range of values that has a known probability of containing the quantity’s value. Without stating measurement uncertainty, any conclusion based upon a measured result is speculation since there’s no way to understand what the result actually represents (e.g., the Austin Crime Laboratory policy for reporting blood alcohol concentrations is with a 99.7% confidence level, and the BAC is reported 69.4%). Consequently, consider committing the State’s expert to expressing their extrapolation result in terms of a measurement confidence interval—for instance 99.7%. I doubt they will, though they may commit to “more likely than not.” If you had discussed the differences in burdens of proof at voir dire, the jury would be empowered to conclude just how speculative retrograde extrapolation really is.

Dr. Jones wrote that “requests to back extrapolate a person’s BAC from sample time to driving time is a dubious practice because of the many variables and unknowns involved.”11 He further stated that “[i]n a DWI trial, only a single measurement of BAC is usually available, making it very difficult to engage in retrograde calculations with sufficient certainly for criminal prosecution.”12 But I liked Judge Johnson’s point in Mata the best: “Extrapolation back from the BAC at the time of testing to the BAC at the time of driving is an endeavor fraught with the danger of inappropriately bamboozling the jury into thinking that such an extrapolation can be anything close to accurate.” Mata v. State, 122 S.W.3d 813, 932 (Tex. Crim. App. 2003)(Johnson, J., concurring). Don’t let the prosecutor’s retrograde extrapolation bamboozle your next jury!

Notes

1. Widmark, E.M.P., Principles and applications of medicolegal alcohol determination, Biomedical Publications, Davis, 1981, pp. 1–163.

2. Garriott’s Medicolegal Aspects of Alcohol, 6th edition. Y. H. Caplan and B. A. Goldberger, eds; Lawyers and Judges Publishing Company, Tucson, AZ, 2015.

3. Jones, A. W., Biochemical and Physiological Research on the Disposition and Fate of Ethanol in the Body, Garriott’s Medicolegal Aspects of Alcohol, p. 103 (James Garriott ed., 2008, 5th edition).

4. Id. at p. 94.

5. Id. at pp. 85–105. See also Mata v. State, 122 S.W.3d 813, 908–09 (Tex. Crim. App. 2003).

6. Id. at pp. 97–98.

7. Id. at p. 103. See also Dubowski, K. M., Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol, Supplement No. 10, July 1985, p. 99.

8. Id. at p. 97.

9. Ibid.

10. Id. at p. 88, Table 3.7.

11. Id. at p. 127.

12. Ibid.