Monthly archive

May 2017

May 2017 SDR – Voice for the Defense Vol. 46, No. 4

Voice for the Defense Volume 46, No. 4 Edition

Editor: Michael Mowla

From editor Michael Mowla

1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

2. Some opinions are 20 or more pages, so I focus on the most relevant parts to write summaries of one to four pages.

3. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

4. The summaries reflect the relevant facts and holdings of the cases. The summaries do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial, or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

Supreme Court of the United States

Dean v. United States, No. 15-9260, 2017 U.S. LEXIS 2190 (U.S. April 3, 2017)

        (1) When considering a sentence, district courts must: (1) impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation (“parsimony principle”); (2) consider the nature and circumstances of the offense and the history and characteristics of the defendant; (3) consider the need for the sentence imposed to serve the four aims of sentencing; and (4) consider the U.S.S.G.

        (2) 18 U.S.C. § 924(c) does not restrict the authority conferred on sentencing courts by § 3553(a) to consider a sentence imposed under § 924(c) when calculating a sentence for the predicate count. Although a mandatory sentence under § 924(c) must be imposed “in addition to the punishment provided” for the predicate crime, the limitation says nothing about the length of a non-§ 924(c) sentence, much less about what information a court may consider in determining that sentence.

        (3) Nothing prevents a district court from imposing a mandatory-minimum sentence under § 924(c) and as short as a one-day sentence for the predicate crime.

Moore v. Texas, No. 15-797, 2017 U.S. LEXIS 2185 (U.S. March 28, 2017)

        (1) Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins

        (2) The TCCA’s conclusion that an IQ score of near-but-above 70 establishes that an inmate is not intellectually disabled is irreconcilable with Hall because under Hall, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” The standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” This imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score, within which one may say an individual’s true IQ score lies.

United States Court of Appeals for the Fifth Circuit

United States v. Fisch, No. 15-20636, 2017 U.S. App. LEXIS 4499 (5th Cir. March 14, 2017) (designated for publication)

        (1) To support a conspiracy conviction under 18 U.S.C. § 371, the government must prove: (1) an agreement between two or more people to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the conspirators in furtherance of the conspiracy’s objective.

        (2) The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.

        (3) Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence.

        (4) An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.

        (5) The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) a judicial proceeding was pending; (2) the defendant knew of the judicial proceeding; and (3) the defendant acted corruptly with the specific intent to influence, obstruct, or impede that proceeding in its due administration of justice.

        (6) A defendant’s specific intent to obstruct justice “can be proven by showing the defendant’s endeavors had the ‘natural and probable effect of interfering with the due administration of justice.’” An attempt to obstruct justice violates the statute.

        (7) Due process requires the district court to hold a prompt hearing at which a defendant can contest a restraining order if the restrained assets are needed to pay for an attorney to defend him on associated criminal charges. However, the defendant must present detailed evidence of his financial circumstances.

United States v. Jordan, No. 15-20454, 2017 U.S. App. LEXIS 4443 (5th Cir. March 14, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 1521, Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title, whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an [officer or employee of the United States], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

        (2) A violation of 18 U.S.C. § 1521 occurs based on the type of document filed and resulting harm without regard to the validity or existence of the identified collateral in such documents. It did not matter that the defendant does not identify specific property belonging to the judge and prosecutor.

        (3) The six-level sentencing enhancement under U.S.S.G. § 2A6.1(b)(1) for “threatening” to harm the property of a judge and prosecutor is valid where an expressed intent to harm property is made.

United States v. Kirkland, No. 16-40255, 2017 U.S. App. LEXIS 4837 (5th Cir. March 17, 2017) (designated for publication)

        (1) When an appellant fails to object to error, review is for plain error: (1) there must be an error that has not been intentionally relinquished or abandoned; (2) the error must be plain—clear or obvious; (3) the error must have affected the defendant’s substantial rights, which in the ordinary case means he must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (3) the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)

        (2) In the context of sentencing, an error affects an appellant’s substantial rights when there is a reasonable probability that, but for the error, he would have received a lesser sentence.

        (3) The Government’s breach of a plea agreement affects a defendant’s substantial rights unless the record indicates that that the district court would have imposed the same sentence regardless of the Government’s breach.

        (4) The fact that a district court exercises independent judgment—which it must do in every case—does not mean that the court did not also consider and give weight to the Government’s breach of a plea agreement.

        (5) The Government’s breach of a plea agreement constitutes a particularly egregious error that, in the absence of strong countervailing factors, seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (6) When the Government’s breach of a plea agreement con­stitutes reversible error, a defendant can choose one of two reme­dies: (1) specific performance of the plea agreement and resentencing before a different judge, or (2) withdrawal of the guilty plea.

United States v. Lagos, No. 16-20146, 2017 U.S. App. LEXIS 4834 (5th Cir. March 23, 2017) (designated for publication)

        (1) The legality of a restitution award is reviewed de novo.

        (2) 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act (MVRA), requires a sentencing court to order restitution for a victim’s “actual loss directly and proximately caused by the defendant’s offense of conviction.” This includes “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”

        (3) Forensic expert fees, legal fees, and consulting fees incurred by a victim are included under the MVRA even if they are considered “consequential damages.”

United States v. Tract 31A, Lots 31 and 32, No. 16-40588, 2017 U.S. App. LEXIS 4165 (5th Cir. March 9, 2017) (designated for publication)

        (1) Under Tex. Fam. Code § 3.102, a spouse’s sole management community property includes his “(1) personal earnings; (2) revenue from separate property; (3) recoveries from personal injuries; and (4) the increase and mutations of, and the revenue from, all property subject to the spouse’s sole management, control and disposition.”

        (2) All other community property is joint management community property, unless the spouses have provided otherwise by power of attorney or other written agreement.

        (3) Joint management community property is subject to the joint management, control, and disposition of the spouses.

        (4) To cause a valid conveyance of joint management community property, both spouses must join in the transaction. If a spouse does not have a written power of attorney or other agreement, the spouse may not convey or otherwise dispose of joint management community property without the joinder of the other spouse.

        (5) Because property that appears to be subject to sole management may, in fact, be subject to joint management—and thus require joinder of both spouses to affect a valid conveyance—third parties that enter transactions involving community property might be placed in a precarious position.

        (6) Under Tex. Fam. Code § 3.104, property held in one spouse’s name is presumed to be sole management community property, and if the named spouse conveys such property to a third party such as the government under a plea agreement, the government is entitled to rely upon the authority of that spouse to convey the property if the third party “does not have actual or constructive notice of the spouse’s lack of authority” to deal with the property.

United States v. Castillo-Rivera, No. 15-10615, 2017 U.S. App. LEXIS 5570 (5th Cir. March 29, 2017) (en banc) (designated for publication)

        (1) Unlawful Possession of a Firearm by a Felon under Tex. Penal Code § 46.04 is an aggravated felony for purposes of the U.S.S.G.

United States v. Escamilla, No. 16-40333, 2017 U.S. App. LEXIS 5485 (5th Cir. March 29, 2017) (designated for publication)

        (1) When determining whether reasonable suspicion exists for probable cause when roving Border Patrol agents stop a vehicle in a “border area,” the courts consider the Brignoni-Ponce factors: (1) the area’s proximity to the border; (2) the area’s characteristics; (3) the usual traffic patterns on the road; (4) the agents’ previous experience with criminal activity; (5) information about recent illegal trafficking in the area; (6) the appearance of the vehicle; (7) the driver’s behavior; and (8) the pas­sengers’ number, appearance, and behavior.

        (2) An officer’s conduct is reasonably related to the justification for the stop when the officer “diligently pursues a means of investigation that is likely to confirm or dispel [the officer’s] suspicions quickly.”

        (3) To determine whether a suspect’s consent to search is voluntary, six factors are considered: (1) the voluntariness of the suspect’s custodial status; (2) the presence of coercive police procedures; (3) the nature and extent of the suspect’s cooperation; (4) the suspect’s awareness of his right to refuse consent; (5) the suspect’s education and intelligence; and (6) the suspect’s belief that no incriminating evidence will be found.

        (4) The scope of a person’s consent by what is objectively reasonable: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” A court must take account of any express or implied limitations attending that consent that establish the permissible scope of the search in terms of time, duration, area, or intensity.

        (5) Fourth Amendment rights are personal, and “may not be vicariously asserted.” Thus, a person has no standing to challenge a search or seizure of property that was voluntarily abandoned.

United States v. Guzman-Reyes, No. 16-10387, 2017 U.S. App. LEXIS 5926 (5th Cir. April 5, 2017) (designated for publication)

        (1) For purposes of U.S.S.G. § 2D1.1(b)(12), which provides a two-level enhancement if the defendant “knowingly maintains a premises for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution,” “maintains” is not expressly defined in the U.S.S.G., but under § 2D1.1 cmt. n.17, “[a]mong the factors the court should consider in determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.”

        (2) Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.

        (3) A PSR generally bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. The defendant bears the burden of presenting evidence to show that the facts contained in the PSR are inaccurate or materially untrue. In the absence of rebuttal evidence, a district court may properly rely on the PSR and adopt the PSR’s factual findings as its own.

        (4) Under U.S.S.G. § 3B1.1 cmt. n.4, a defendant’s “recruitment of accomplices” and “degree of participation in planning or organizing the offense” are factors courts should consider when determining application of the enhancement.

United States v. Sanjar, et al, No. 15-20025, 2017 U.S. App. LEXIS 5342 (5th Cir. March 27, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 701, lay witnesses may offer opinion testimony if it is rationally based on their perception, helpful to determining a fact in issue, and not based on specialized knowledge. Even if such testimony requires some specialized knowledge, it is admissible so long as the lay witness offers straight­forward conclusions from observations informed by his or her experience.

        (2) Generic language may satisfy the “particularity” requirement of the Fourth Amendment if describing a more specific item is not possible. The Fourth Amendment requires that: (1) a warrant provide sufficient notice of what the agents may seize and (2) probable cause exist to justify listing those items as potential evidence subject to seizure.

        (3) Under Fed. Rule Evid. 801(d)(2), when offered by the government, a defendant’s out-of-court statements are those of a party opponent and thus not hearsay. When offered by the defense, however, such statements are hearsay (the defendant may reiterate the out-of-court statements on the stand if he chooses to testify). The rule of optional completeness under Fed. Rule Evid. 106 does not apply here because optional completeness protects against written works being presented out of context, not a statement by a party-opponent.

        (4) A district court may include a “deliberate indifference” instruction if the evidence shows that a defendant “deliberately closed his eyes to what would otherwise have been obvious to him.” This instruction may be given when a defendant claims a lack of guilty knowledge and the evidence supports an inference of deliberate indifference.

        (5) Under Pinkerton v. United States, 328 U.S. 640 (1946), a conspirator can be found guilty of a substantive offense committed by a coconspirator and in furtherance of the conspiracy so long as the coconspirator’s acts are reasonably foreseeable. A coconspirator cannot be found guilty if the substantive offense committed by one of the conspirators: (1) was not done in furtherance of the conspiracy, (2) did not fall within the scope of the unlawful project, or (3) was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. See Pattern Jury Instructions, Fifth Circuit (Criminal) § 2.17 (2015).

        (6) Wharton’s Rule provides that when the substantive crime requires more than one actor, conspiracy should not be additional punishment to a crime that already requires concerted action. This rule is implicated only when it is impossible under any circumstances to commit the substantive offense without cooperative action.

        (7) Under 42 U.S.C. § 1320a-7b(b)(1), one can violate the Anti-Kickback Statute just for soliciting a kickback, so convictions for both conspiracy to violate the Anti-Kickback Statute and violating that law are allowed.

        (8) Under 18 U.S.C. § 3663A(a)(2), when the offense of conviction involves a “scheme,” the restitution statute broadens the definition of victim to include “any person directly harmed by the defendant’s criminal conduct in the course of the scheme.” Restitution may include losses suffered by victims not named in the indictment so long as they are victims of the scheme. United States v. Pepper, 51 F.3d 469, 473 (5th Cir. 1995).

        (9) Under the Mandatory Victim Restitution Act, a district court cannot offset restitution with amounts collected under a forfeiture order. A district court has the statutory authority to impose both restitution and forfeiture, and there is no legal au­thority to offset one another. Restitution and forfeiture serve distinct purposes: restitution is remedial in nature, the goal of which is to make the victim whole, while forfeiture is punitive, and seeks to disgorge profits or property an offender obtains from illicit activity.

Whitaker v. Davis, No. 16-70013, 2017 U.S. App. LEXIS 5862 (5th Cir. April 4, 2017) (designated for publication)

        (1) Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal habeas relief based upon claims that were adjudicated on the merits by the state courts, as here, cannot be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the SCOTUS” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

        (2) Impeachment of a defendant using a “proffer to plead guilty” does not violate Santobello and is not an “involuntary confession” because Santobello’s due process rule that a guilty plea requires fulfillment of terms agreed to by the government does not apply because the defendant did not plead guilty.

Texas Court of Criminal Appeals

Bell v. State, No. PD-0052-17, 2017 Tex. Crim. App. LEXIS 290 (Tex. Crim. App. March 22, 2017) (per curiam) (designated for publication)

        (1) Jurisdiction is an absolute, systemic requirement that operates independent of preservation of error requirements, and appellate courts must review jurisdiction regardless of whether it is raised by the parties.

McClintock v. State, No. PD-1641-15, 2017 Tex. Crim. App. LEXIS 291 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) The good-faith exception to a warrant under Davis v. United States, 564 U.S. 229 (2011) applies to Tex. Code Crim. Proc. Art. 38.23(a): An officer who reasonably believes that the information he submitted in a probable cause affidavit was legally obtained has no reason to believe the resulting warrant was tainted. Thus, in executing the warrant, that officer “acts in objective good faith reliance upon” the warrant if the warrant is facially valid.

Ex parte Owens, No. WR-83,551-01, 2017 Tex. Crim. App. LEXIS 344 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), if there is an allegation that a lab falsified drug-test results, the TCCA requires a showing of both falsity and materiality us­ing a five-factor test where the applicant first raises an inference of falsity by showing that: (1) the technician is a state actor, (2) the technician committed multiple instances of intentional misconduct in another case or cases, (3) the technician is the same that worked on the applicant’s case, (4) the misconduct is the type that would have affected the evidence in the applicant’s case, and (5) the technician handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct.

        (2) If the applicant satisfies the initial burden to raise an inference of falsity, the burden shifts to the State to offer evidence showing that the laboratory technician in question committed no such misconduct in the applicant’s case.

        (3) If the State fails to meet this burden, the applicant must prove that the false evidence was material to his conviction, which requires the applicant to show that knowing of the falsity of the evidence, would the applicant still have plead guilty or would he have insisted on going to trial? If he would have chosen to go to trial, the false evidence was material.

Ex parte Ulla, No. PD-0658-16, 2017 Tex. Crim. App. LEXIS 289 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Tex. Const. Article I, § 12, and Tex. Code Crim. Proc. Art. 12.05, an information tolls the running of limitations in a felony case.

Villa v. State, No. PD-0541-16, 2017 Tex. Crim. App. LEXIS 288 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Evidence of a person’s involvement in a gang is legally sufficient if the state proves the factors listed under Tex. Code Crim. Proc. Art. 61.02(c)(2), which allows a person to be included in the database of gangs if certain evidence is shown.

Powell v. Hocker, No. WR-85,177-01, 2017 Tex. Crim. App. LEXIS 374 (Tex. Crim. App. April 5, 2017) (designated for publication) (orig. proceeding)

        (1) Under Tex. Const. Art. V, § 6(a), Tex. Gov. Code § 22.221, and Tex. Gov. Code § 21.009(2), the mandamus jurisdiction of the courts of appeals does not extend to a writ of mandamus against a county court at law judge.

        (2) Under State ex rel. Young, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007), to qualify for mandamus relief, a petition must: (1) show that he has no adequate remedy at law, and (2) demonstrate a clear right to the relief. Where the conduct of a court is involved, a relator must demonstrate that the act he seeks is ministerial, not judicial, in nature. An act is ministerial, and therefore subject to the compulsion of mandamus, even though a judicial decision is involved, when the governing law is of such absolute clarity and certainty that nothing is left to the court’s discretion.

        (3) Article 39.14 plainly indicates that copies of discovery should be turned over to defense counsel, that the defendant may “view” them, but the defendant may not obtain copies. It also does not require the State to provide copies to a pro se defendant.

Thomas v. State, No. PD-0295-16, 2017 Tex. Crim. App. LEXIS 373 (Tex. Crim. App. April 5, 2017) (designated for publication)

        (1) In interpreting plea agreements, the TCCA applies general contract-law principles. Courts look to the written agreement and the formal record to determine the terms of the plea agreement, and terms are implied only when necessary to effectuate the intention of the parties.

        (2) When a portion of a plea-bargain (either a sentence-bargain or charge-bargain) is unenforceable to one party’s detriment, the proper remedy is to set aside the plea agreement and restore the parties to their original bargaining positions.

Texas Courts of Appeals

Atkinson v. State, No. 13-16-00344-CR, 2017 Tex. App. LEXIS 2255 (Tex. App.—Corpus Christi March 16, 2017) (designated for publication)

        (1) A person commits manslaughter if he recklessly causes the death of an individual. Manslaughter is a result-oriented offense: The mental state of recklessness must relate to the results of the defendant’s actions. A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.

        (2) Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

        (3) In determining whether the culpable mental state was proven, the jury can use its collective common sense and may apply common knowledge and experience.

Lombardo v. State, No. 14-15-00406-CR, 2017 Tex. App. LEXIS 2285 (Tex. App.—Houston [14th Dist.] March 16, 2017) (designated for publication)

        (1) There are three limits to a trial court’s discretion to revoke probation for failure to pay: (1) the State must prove at least one violation of the terms and conditions of community supervision; (2) an appellate court will review the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision.

        (2) Federal due-process concerns under Bearden of jailing defendants for failure to pay restitution are met if the failure was willful.

        (3) When a defendant is sentenced to “regular” community supervision, the defendant is sentenced to a determinate number of years, but that sentence is suspended for a period of community supervision. Upon revocation, the trial court has the option of imposing a sentence of up to the determined number of years, but no less than the minimum for the offense.

        (4) A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.

        (5) When faced with a void sentence, a reviewing court cannot reform it, but must remand the case back to the trial court to determine the correct sentence and enter a new judgment.

Routh v. State, No. 11-15-00036-CR, 2017 Tex. App. LEXIS 2833 (Tex. App.—Eastland March 31, 2017) (designated for publication)

        Under Tex. Penal Code § 8.01, “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” “Wrong” under Tex. Penal Code § 8.01 means “illegal.” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

        (1) The question for deciding insanity is, “Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?”

        (2) A defendant bears the burden to prove his affirmative defense of insanity by a preponderance of the evidence.

        (3) In a challenge to the legal sufficiency of the evidence to support a rejection of an affirmative defense, the standard of review is from Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005): (1) whether there is more than a scintilla of evidence to support the jury’s rejection of Appellant’s affirmative defense, and review the evidence in the light most favorable to the verdict, and we credit any favorable evidence if a reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder could not; and (2) if there is no evidence to support the jury’s rejection of Appellant’s affirmative defense, then Appellant must establish as a matter of law the elements of the affirmative defense.

        (4) Evidence supporting or rejecting an affirmative defense that is subject to a credibility assessment is not disturbed by an appellate court because it is within the jury’s province to disregard that evidence. Only if the party establishes that the evidence conclusively proves his affirmative defense and that no reasonable jury was free to think otherwise may the reviewing court conclude that the evidence is legally insufficient to support the jury’s rejection of the defendant’s affirmative defense.

        (5) To determine whether the evidence was factually sufficient to support the jury’s rejection of Appellant’s affirmative defense, a reviewing court looks to whether the jury’s adverse finding was so against the great weight and preponderance of the evidence as to be manifestly unjust. This evidence is viewed in a neutral light, but the reviewing court may not substitute its judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony. If the reviewing court finds that the evidence that supports the affirmative defense so greatly outweighs the State’s contrary evidence that the verdict is manifestly unjust, the reviewing court will reverse the trial court’s judgment and remand the case for a new trial.

        (6) Under Tex. Code Crim. Proc. Art. 38.22 § 3(a)(2), a defendant must knowingly, intelligently, and voluntarily waive his rights before a statement made while he was in custody may be used against him. The determination of whether a statement is voluntary is based on an examination of the totality of circumstances surrounding its acquisition. There is no requirement that a defendant explicitly waive his rights. A waiver can be inferred from the actions and words of the defendant during the interview.

Ashton v. State, Nos. 01-16-00004-CR & 01-16-00005-CR, 2017 Tex. App. LEXIS 3021 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Under U.S. Const. Amend. VI and Tex. Const. Art. 1, § 10, a person has the right to an impartial jury. When a person serves on a jury but is partial, biased, or prejudiced and that juror is selected not through the fault or lack of diligence of defense counsel but based on inaccurate answers in voir dire, a new trial can be obtained.

        (2) When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. However, the defendant bears the burden to ask questions to determine a juror’s potential bias. The defendant must ask specific questions and cannot rely on broad ones, to satisfy this due diligence obligation. Unless the defendant asks questions designed to illicit information that might indicate a juror’s inability to be impartial and truthful, the material information which a juror fails to disclose is not “withheld.”

Ex parte Baham, No. 05-16-00643-CV, 2017 Tex. App. LEXIS 2942 (Tex. App.—Dallas April 5, 2017) (designated for publication)

        (1) A party can prevail in a restricted appeal only if it was a party in the underlying suit and did not participate in the hearing that resulted in the judgment complained of, filed its notice of appeal within six months after the judgment was signed, and establishes error apparent on the face of the record. Tex. Rule App. Proc. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam).

        (2) Under Tex. Code Crim. Proc. Art. 55.02 § 1, after requesting expunction, the defendant must provide the trial court with information set forth in Tex. Code Crim. Proc. Art. 55.02 § 2(b). Once the necessary information is provided, the trial court “shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal.”

        Editor’s Note: the legislature should add language to Article 55.01 and the TCCA and SCOT should add similar language to the Tex. Rule App. Proc. allowing mandatory attorney’s fees and costs to an expunction petitioner when TDPS brings patently frivolous restricted appeals such this.

Ex Parte Chung, No. 05-15-01477-CV, 2017 Tex. App. LEXIS 2812 (Tex. App.—Dallas March 30, 2017) (designated for publication)

        (1) Expunction is a statutorily-created remedy that allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if the person meets the statutory requirements of Tex. Code Crim. Proc. Art. 55.01. Because it is created by statute, all its provisions are mandatory and exclusive and require strict compliance with Tex. Code Crim. Proc. Art. 55.01. A trial court has no equitable power to extend the protections of the expunction statute beyond the statute’s stated provisions. The petitioner carries the burden of proving compliance with the statutory requirements.

        (2) Review of a trial court’s ruling on a petition for expunction is for an abuse of discretion. To the extent that a ruling on expunction turns on a question of law, review is de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. A trial court abuses its discretion if it orders an expunction of records despite a petitioner’s failure to satisfy all the statutory requirements.

        (3) Under Tex. Code Crim. Proc. Art. 55.01, a party placed on community supervision does not qualify for expunction even if his conviction is set aside via judicial clemency.

Collins v. State, No. 09-15-00089-CR, 2017 Tex. App. LEXIS 2645 (Tex. App.—Beaumont March 29, 2017) (designated for publication)

        (1) Under the current Tex. Fam. Code § 54.02(j), a juvenile court may transfer a case involving a juvenile to a district court if the defendant is 18 years of age or older at the time of the hearing and if he was 10 years of age or older when he committed a crime defined as a capital felony or as murder.

        (2) Under U.S. Const. Art. I, § 10, cl.1 (“No State shall pass any ex post facto Law”), and Tex. Const. Art. I, § 16 (“No ex post facto law shall be made”), statutes may not be applied retroactively in a way that changes the punishment that applied to a crime on the date the crime was committed.

        (3) The factors used to determine whether a statute operates retroactively in a way that is constitutionally prohibited under the Ex Post Facto clause are whether: (1) the statute assigns more disadvantageous criminal consequences to an act than did the law in place when the act occurred (it is irrelevant whether the statutory change touches any vested rights); (2) whether the sanction involves an affirmative disability or restraint; (3) it has traditionally been regarded as a punishment; (4) it comes into play only on a finding of scienter; (5) its operation will promote the traditional aims of punishment—retribution and deterrence; (6) the behavior to which it applies is already a crime; (7) an alternative purpose to which it may rationally be connected is assignable to it; (8) it appears excessive in relation to the alternative purpose assigned; and (9) the change to the statute was procedural or substantive (laws altering procedure do not generally fall within the prohibition).

        (4) If a person receives the same sentence under a new law that he would have received under an old law, there is no violation of the Ex Post Facto law.

Davis v. State, No. 01-16-00079-CR, 2017 Tex. App. LEXIS 3022 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Jurisdiction may be challenged for the first time on appeal.

        (2) Under Tex. Code Crim. Proc. Art. 20.09, a district court forms and impanels a grand jury and empowers it to inquire into indictable offenses. After hearing testimony, a grand jury votes concerning the presentment of an indictment. Under Tex. Code Crim. Proc. Art. 20.19, after all testimony that is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment. After presentment, the State files the indictment in a court with jurisdiction to hear the case. Under Tex. Gov. Code § 74.094, all state district courts within the same county have jurisdiction over the same cases.

        (3) Under Tex. Const. art. V, § 11, Tex. Gov. Code § 24.024, and See Tex. Gov. Code § 74.094, (1) district judges may exchange districts, or hold court for each other when they may deem it expedient, and shall do so when required by law; (2) in a county having two or more district courts, the district judges may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the court; (3) district courts within the same county may exchange benches for preliminary proceedings; (4) if a grand jury in one district court returns an indictment in a case, the case may be then assigned to any district court within the same county.

Ex Parte Navarro, No. 14-16-00606-CR, 2017 Tex. App. LEXIS 3001 (Tex. App.—Houston [14th Dist.] April 6, 2017) (designated for publication)

        (1) The Double Jeopardy Clause protects an accused against “a second prosecution for the same offense after acquittal.” A greater offense is “the same offense” for jeopardy purposes as any lesser offense included within it.

        (2) Under Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), if a defendant is convicted of an offense that contains an aggravating element and the conviction is overturned because there was insufficient evidence of the aggravating element, the defendant may be retried on the lesser offense.

Oliva v. State, No. 14-15-01078-CR, 2017 Tex. App. LEXIS 2594 (Tex. App.—Houston [14th Dist.] March 28, 2017) (designated for publication)

        (1) Under legal-sufficiency review, the reviewing court views all the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact must resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The trier of fact considers direct and circumstantial evidence and properly and improperly admitted evidence. When the record supports conflicting inferences, appellate courts presume the trier of fact resolved the conflicts in favor of the verdict.

        (2) A punishment enhancement is a “fact” that “increases the punishment range to a certain range above what is ordinarily prescribed for the indicted crime. It does not change the offense, or the degree of the offense. A defendant is entitled to written notice of a punishment-enhancement allegation, but it need not be pled in the indictment nor proven during the guilt-innocence phase of trial.

        (3) An element is a fact that is legally required for a factfinder to convict a person, and must be proven beyond a reasonable doubt at the guilt-innocence phase of trial. A prior DWI conviction is an element of Class A DWI, and a fact that is legally required for a factfinder to convict a person of Class A DWI. If the defendant has a prior DWI conviction, the statute enhances the degree of the offense, from a Class B misdemeanor DWI to a Class A misdemeanor DWI.

Pegues v. State, No. 01-16-00317-CR, 2017 Tex. App. LEXIS 2618 (Tex. App.—Houston [1st Dist.] March 28, 2017) (designated for publication)

        (1) In a review of the denial of a motion under Tex. Code Crim. Proc. Art. 64.03, the reviewing court affords almost total deference to the trial court’s determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor, but reviews de novo other application-of-law-to-fact issues. The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have caused appellant to not be convicted is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.

        (2) The purpose of DNA testing under Tex. Code Crim. Proc. Art. 64.03 is to allow a convicted person to establish innocence through DNA test results that exclude the person as the perpetrator of the offense. Under Tex. Code Crim. Proc. Art. 64.03(a), a court may order postconviction DNA testing only if the court finds that: (1) identity was or is an issue in the case; and (2) the convicted person has established by a preponderance of the evidence “that the person would not have been convicted if exculpatory results had been obtained through DNA testing.”

        (3) The issue is not whether the State presented ample evidence of the defendant’s guilt, but whether exculpatory DNA test results that exclude the defendant as the source of the material would establish by a preponderance of the evidence that the defendant was not the assailant and thus would not have been convicted.

        (4) Under Tex. Code Crim. Proc. Art. 64.03(b), a defendant’s confession or other admission of guilt does not remove identity as an issue because a court is prohibited from finding that identity was not an issue solely because of a plea, confession, or admission.

Nondisclosure Update

The Law Office was situated on the south corner of Main Street, just past wide-open Texas spaces and a sign that read Population: 1,900. True to its name, Main Street was really the only street. Once bustling with United States Air Force pilots training for World War II, the town had, surprisingly, settled in as a hub for art. Lined with rustic worn-out buildings, you could still find most necessities. A grocery store, a feed store, a barber shop, a dental office, a hardware store, a pharmacy, an art store, and of course a state-renowned barbecue joint all within a stone’s throw from the county courthouse. As one of the only firms in town, the Law Office handled everything from criminal to agricultural law and most things in between.

It was 9:00 am and the phone rang. The boutique firm’s long-time secretary sat at her desk with her head buried secretly in a romance novel. Of course, despite any formal training she wasn’t just the secretary. She was also the paralegal, the accountant, and the office manager. Honestly, she was the glue that held the firm together. And in her raspy southern voice—a combination of two ex-husbands, four kids, and a small factory of Marlboro Lights—she announced, “Law Office.”

The soft, intimidated voice on the other end replied, “I’d like to speak to a lawyer, please.”

“Regarding what?”

If the multi-talented employee had learned anything over the last 30 years it was that she controlled the phones. Judgment was cast upon each caller as she determined who made it through to the next round.

The young voice on the other end fired away: “This past year I made my first mistake . . . Well, actually, it was my second mistake, but I don’t consider my first-born child to be a mistake now. Anyway, needing makeup, I took some from Target. Not wanting my parents to find out, I pled guilty and paid a fine on the first court date. Now, I can’t escape it. School applications ask about it, apartment complexes ask about it, employers ask about it. I was young. I was dumb. But I don’t feel like I should be punished forever. I don’t feel like my child should be punished forever, either.”

Adding therapist to her growing list of office duties, the secretary gently replied: “Slow-down. Take a breath. Breathe.”

“Sorry,” the caller said. “But is there anything that can be done?”

* * * *

Until recently the answer was simple. Short of a governor’s pardon, a person with a previous conviction had almost no options. That began to change, however, in the last legislative session. Lawmakers took a much-needed two-step in the right direction by re-writing sections of the Texas Government Code applicable to nondisclosures.1 These amendments walked quietly amid the legal community while other legislation, such as open-carry, received all the press and attention. But under the new nondisclosure provisions, relief was now possible for Texans burdened with a modern-day scarlet letter in the shape of a C.

* * * *

“Hold please,” the secretary continued.

The long-time employee knew the answer but wasn’t paid enough to provide it. She had always wanted to attend law school. However, her family’s demands gave way. Marrying rich provided her a quicker, albeit temporary, path to a lavish lifestyle. Sadly, that path was consumed by her ex’s secretive gambling addiction.

The secretary then patched the young caller through to the next round.

The grey-haired lawyer picked up the phone. On the grind for over 40 years, he had contemplated retirement, then retired, then un-retired. Now he was thinking about retirement again. But he knew better. He knew he never would. He just didn’t like the ending to that story.

After being quickly briefed, the lawyer reached for his updated nondisclosure checklist.

* * * *

To prevail on ANY nondisclosure, conditions #1 and #2 below must be met. Condition #3 determines whether the new legal provisions may apply.

First, the person must not have been convicted of, or placed on deferred for, any offense (other than a fine-only traffic offense) at any time after the sentence was pronounced and continuing through any applicable waiting period.2

Example 1: Jake is arrested and charged with Crime A. He receives deferred adjudication. Two months later he is arrested, charged, and convicted of Crime B. The latter conviction, Crime B, bars him from a nondisclosure on Crime A.

Example 2: Jake is arrested and charged with Crime A. Prior to receiving deferred on Crime A, Jake is arrested, charged, and convicted of Crime B. Contrary to example one, Jake is still eligible for a nondisclosure on Crime A. The relevant consideration is the actual conviction, not the date of the offense.

Practice Tip: Keep this provision in mind when representing a client with multiple cases and subsequent offense dates. How and when the cases were resolved can impact the person’s ability to seek relief.


Second, the person must not have a conviction for a prohibited offense. The prohibited list includes any offense requiring registration as a sex offender, any case involving family violence, murder, aggravated kidnapping, trafficking of persons, injury to a child, elderly, or disabled, abandoning or endangering a child, or stalking, and violations of bond in family violence, sexual assault, and stalking cases.3 It is important to remember the forbidden list applies not only to the charge for which the nondisclosure is sought, but also to prior convictions.

If the above two conditions are met, then the date of the offense must be examined. Specifically:


Did the offense occur on or after September, 1, 2015? In order for the new amendments to apply, the offense must have occurred on or after September 1, 2015.4 If the offense occurred prior to September 1, 2015, the law in effect at that time applies. The new statute is not retroactive.

If the petitioner meets these conditions, then the necessary vehicle for nondisclosure should be chosen.

A. Automatic Nondisclosure (for certain misdemeanors): §411.072

Ever been to Disneyland? If so, you are familiar with the “fast pass.” Planning and timing your adventures, you strut past those unfortunate souls baking in the summer heat, waiting in hour-plus-long lines. Automatic Nondisclosures are the “fast passes” of the legal kingdom. Of course, not all rides apply. To start, this must be the person’s first offense.5 Second, the crime must not be excluded under statute. Excluded offenses include kidnapping, unlawful restrain, indecent exposure, unlawful photography, assault, deadly conduct, terroristic threat, bigamy, enticing a child, violation of protective order, disorderly conduct, harassment, animal cruelty, prostitution, unlawful carrying of a weapon, prohibited weapons, and engaging in organized crime.6 If the petitioner does not meet these requirements, they may still be eligible for a standard nondisclosure, just not the “fast pass” automatic kind.

Waiting Period

Once 180 days have passed from the day the person was placed on deferred (not the discharge date), the person can petition for an automatic nondisclosure. If the deferred is less than 180 days, the person must wait it out. If the deferred is 180 days or longer, they are immediately eligible (assuming all other requirements are met).


Unlike standard deferred nondisclosures, a showing that granting the petition is in the best interest of justice is not required. Be aware, under Tex. Code Crim. Proc. Art. 42.12, §5(k) (if it survives repeal and is rolled into Chapter 42A), when a trial court places a person on deferred an affirmative finding can be made that it would not be in the best interest of justice for the person to receive an automatic nondisclosure.

Practice Tip: Be prepared to argue why an automatic nondisclosure would be in the best interest of justice at the time of the plea.

While the overall procedure is somewhat unclear, what is clear is the petitioner is required to pay a fee and “present” any evidence necessary to establish eligibility (e.g., order placing then on deferred, order of discharge and dismissal, and criminal history search).7 For now, you should expect the automatic nondisclosures to be handled like a post-acquittal expunction.

B. Standard Nondisclosure: §411.0725

You know this old song and dance. For those who successfully complete deferred adjudication and do not qualify for an automatic nondisclosure, a standard nondisclosure may apply.

Waiting Period

The waiting periods remain the same. For felonies, it is five years from the date of discharge and dismissal. For misdemeanor offenses under Tex. Pen. Code chapter 20 (kidnapping, unlawful restraint, smuggling, and trafficking), 21 (sexual offenses), 22 (assaultive offenses), 25 (offenses against the family), 42 (disorderly conduct and related offenses), 43 (public indecency), and 46 (weapon offenses), the waiting period is two years from the date of the discharge and dismissal. For all other misdemeanors, there is no waiting period.


Once the petition is filed, filing fees paid, and hearing date set, the court (upon finding issuance of the order is in the best interest of justice) can order the records sealed.8

Practice Tip: The day the discharge and dismissal order was signed by the court begins the waiting period. Consequently, pay attention to that date rather than the day the supervision expired.

C. Straight Probation for Certain Misdemeanors: §411.073

A Texas-sized change to nondisclosure laws allows for persons with certain convictions to have their cases sealed. Two separate statutory sections allow this, with the first being for those placed on community supervision.

To be eligible the person must not have been convicted of a prohibited offense. Under this section of the Tex. Gov’t Code, prohibited offenses include intoxication offenses and engaging in organized crime. For any misdemeanor offense not on the prohibited list, the petitioner must successfully complete community supervision and receive a discharge and dismissal.9 This section allows for a nondisclosure even if jail time is required as a condition of the probation.10

Waiting Period:

Like a standard nondisclosure, the waiting period is two years for offenses under Tex. Pen. Code Chapters 20, 21, 22, 25, 42, 43, or 46 and immediately for any other misdemeanor.


The petitioner is required to prove the order is in the best interest of justice. This provision is intended for first-time offenders only.

D. Jail Time for Certain Misdemeanors: §411.0735

The second big change allows for nondisclosures of certain misdemeanor jail time cases. For the most part, nondisclosures under this provision act like probation nondisclosures, but for the waiting period.

Waiting Period:

In jail time cases the waiting period is two years after the person has been released from jail.11

E. Human Trafficking Victims §411.0728

The final category of nondisclosures can be found in Tex. Gov. Code § 411.0728, which provides relief to those convicted and placed on community supervision for prostitution offenses. Two hurdles must be overcome. First, the conviction must be set aside under the judicial clemency act. Tex. Code Crim. Proc. Art. 42.12, §20(a)(27).12 Second, the court must be convinced the act was committed solely as a victim of human trafficking.13 Provided these two requirements can be met, those placed on community supervision for prostitution offenses may be entitled to relief any time after the conviction has been set aside.

Practice Tip: For any category of nondisclosure, the new law provides only the opportunity for a hearing, not that an actual hearing is required. As a result, the court can grant the order without a hearing if it determines, from the petition alone, the person meets all requirements.

* * * *

After the consultation concluded, the young caller placed her phone on the coffee table. Suddenly, life didn’t feel so heavy. Now relieved, she stared out her living room window at the West Texas sunset. She couldn’t remember a day that had looked so colorful. For the first time in a while, she had hope. No longer would she fear loan applications, lease applications, and employee forms. No longer would one small mistake be held against her and her child. Gazing at the sunset, she took a deep breath and exhaled. For the first time, in a long time, she felt as if she could breathe freely once more.


1. Texas Government Code § 411.071–077.

2. Tex. Gov’t Code § 411.074(a).

3. Id. at § 411.074(b).

4. Acts 2015, 84th Leg., ch 1279 (S.B. 1902), § 32, eff. Sept. 1, 2015.

5. Id. at § 411.072(a)(2).

6. Id. at § 411.072(a)(1)(A).

7. Tex. Gov’t Code § 411.072(c).

8. Id. at § 411.0725(d).

9. Id. at § 411.073(b).

10. Id. at § 411.073(a)(2)(B).

11. Id. at § 411.0735(d).

12. Tex. Gov’t Code § 411.0728(a).

13. Id. at § 411.0728(b) & (c).

Candida albicans, the Yeast Syndrome, and the Auto-Brewery Syndrome

Whether blood samples used in forensic science Driving While Intoxicated (DWI) testing can be affected by endogenous ethanol production is a recurrent and yet unresolved defense. The basis of endogenous ethanol production is whether microbial growth can occur to falsely elevate the ethanol concentration in forensic blood samples. At the heart of these defenses is the naturally present yeast: Candida albicans. (C. albicans). When found in levels greater than those of a localized infection, C. albicans readily converts glucose in the gut to ethanol.1 Extensive literature exists and it is widely known that C. albicans may elevate ethanol levels in a forensic sample.2 However, the C. albicans defense may be developed further as the medical community not only becomes more aware, but also becomes accepting of pathologic overgrowth, the Yeast Syndrome, and a rare but recognized variant, the Auto-Brewery Syndrome. Recent cases have made national news resulting from wrongful DWI arrests of individuals who did not consume intoxicating amounts of alcohol, but rather exhibit a rare medical condition that occurs when abnormal amounts of gastrointestinal yeast efficiently convert common food carbohydrates (sugars and starches) into ethanol.3 This article will not only explain the science relating to C. albicans, the Yeast Syndrome, and the Auto-Brewery Syndrome, but will also discuss how to educate the jury, judge, and district attorney on the unsuspected and usually unacknowledged dangers of C. albicans.

The Science of Candida albicans

C. albicans is a dimorphic yeast and is believed to be an obligate associate of warm-blooded animals, humans being included.4 C. albicans is the “most common and most serious fungal pathogen of man.”5 Despite this status, there is much that is poorly understood concerning the biology of this yeast.6 It is usually present as a harmless asymptomatic commensal, but can manifest as a pathogen.7 Such infections (candidoses) may be divided into a superficial group (such as oral and vaginal yeast infections) and the deep-seated candidoses (such as the yeast syndrome).8 C. albicans is commonly found in man, usually in the oral cavity and digestive tract, and less commonly in the vaginal tract of women.9

It has been shown that several microorganisms occasionally found in blood specimens are capable of producing ethyl alcohol, C. albicans being one of these.10 Even though Blume and Lakatua found that sodium fluoride effectively inhibited alcohol production for various microorganisms, C. albicans appeared to be unaffected by the addition of fluoride.11 If an organism common to man is capable of producing ethyl alcohol in stored blood, the question arises: Are the results of alcohol analysis reflective on an individual’s level of intoxication or of post-sampling fermentation?12 Chang and Kollman initially posed this question, and their study also supported the same conclusion of Blume and Lakatua.13 Chang and Kollman expanded the research to include any temperature effect common to normal storage conditions on the ethanol formation. Ultimately, they found that the amount of alcohol formed over time is highly dependent upon the temperature of storage.14 In fact, ethanol was detected in preserved sampled within 3 days at 37°C, 5 days at 22°C, and only trace levels after 6 months under refrigerated conditions.15 Fermentation proceeds readily by either direct inoculation or contamination with C. albicans.16 However, note that no alcohol formation took place for the first 69 hours even when the sample was kept at body temperature (37°C) and sodium fluoride at 10 mg/mL of blood was used as a preservative.17

The Candida albicans Legal Defense

Some readers may be wondering what to do with the science presented or how to get into the C. albicans defense without medical records showing a history of Candidiasis or yeast infections. The wonderful part of C. albicans being the “most common” pathogen of man is that this yeast is literally all over and around us. Almost everyone has C. albicans in their gut, and a significant proportion of us may have “Candidiasis,” or an overgrowth of Candida, colloquially termed “The Yeast Syndrome.”18 Candidiasis manifests itself with sometimes alarming symptoms throughout the body, and they can vary over time in one person and in kind and severity among different people.19 Localized areas of Candida overgrowth cause obvious, recurrent, and persistent infections such as yeast vaginitis, oral thrush, and diaper rash.20 Other examples that suggest the advanced condition of Candidiasis may appear as unresolved vaginal discharge, itching, constipation, excessive gas, abdominal discomfort, headaches, fatigue, diminished sex drive, irritable personality, memory deterioration, acne, asthma, cystitis, bladder inflammation, itchy scalp, jock itch, athlete’s foot, brittle or brown toenails, rectal tickling, skin rashes, white coated tongue, sinusitis, etc.21 It is important to ask the client whether they had any symptoms or infections at the time of arrest or even recurrence of these symptoms before the arrest. While these questions may be embarrassing for both the lawyer and the client, a proper diagnosis of candidiasis may be the answer needed in attacking the blood test result. If medical records exist for these symptoms, make sure to put these on file in admissible form. Alternatively, if no medical records exist specifically diagnosing candidiasis, consider having the client properly tested and diagnosed.

There are only two ways C. albicans can be in the blood sample. One, as discussed above, it already resides in or on surfaces of organs in many of our systems. Or two, it exists on the outside of your skin where the open needle will pierce and thereby allow C. albicans to flow up the needle and into the vacutainer. If the blood-drawer does not clean the site properly with a non-alcoholic solution, the possibility of contamination by C. albicans always exists. This is why proper site cleansing is imperative. If the site is not properly cleansed, C. albicans can contaminate the sample, and the sodium fluoride preservative may not prevent fermentation. And while the analyst may argue that it is highly unlikely, they never test the sample for presence of C. albicans.22 Remind the jury during closing argument: The prosecution must not prove the case beyond all possible doubt, but they must exclude any reasonable doubt. How can the State or government lab exclude the C. albicans defense if they are unwilling to even test for the presence of it?

Most analysts readily admit that C. albicans actively growing in the sample is a yeast that can produce falsely elevated ethanol levels in blood. The analyst may then try to combat the defense by asserting the reason the BD Vacutainer contains sodium fluoride is to preserve the sample and prevent fermentation. That argument is flawed in two ways. First, they assume the nurse or officer properly mixed the powder homogenously throughout the sample by conducting the 8–10 inversions.23 Also note that if the blood is clotted, obviously the potassium oxalate (anti-coagulant) wasn’t working or wasn’t mixed through sufficiently. And if the anti-coagulant wasn’t properly mixed into the sample, how can they assure the preservative was in order to allegedly prevent fermentation? Second, both Blume & Lakatua and Chang & Kollman published peer-reviewed articles that found sodium fluoride was not effective against ethanol production by C. albicans.24

Remember, the trial lawyer must start weaving the theory of the case beginning in voir dire and continue throughout the entire trial. In voir dire, it is helpful to get the jury to start discussing how the body can affect medical testing. For example, has anyone ever had a false positive pregnancy test? But those are 99% accurate? Or has anyone heard of people that can test positive on breath testing but are just suffering from diabetes? Encourage discussion by the jury to help them lay the theory of the case early. You may even ask a jury who as heard about C. albicans? Most people in the medical field are aware of this yeast and the need for proper cleansing for forensic testing.

The Science of the Yeast Syndrome and Its Extreme Variant, the Auto-Brewery Syndrome

The Yeast Syndrome provides a broader understanding of how C. albicans can affect the body. Essentially, it explains how humans are born with yeast in their system and that certain yeasts are useful for our bodies. When a baby is born, that baby will come into contact with C. albicans almost immediately through the mother’s birth canal. If arriving by Caesarian section, they will certainly be exposed and colonized within the first days or weeks of living in the everyday normal world. This is the usual condition and not a bad thing. The human body receives benefits from some yeasts for digestion and to maintain health. However, problems arise with unrestrained yeast overgrowth. Certain dietary habits like eating lots of carbohydrates, starches, or sugars (including those in fruits) can fuel yeast growth within the gut or other parts of the body. Moreover, taking antibiotics disrupts the needed bacterial balance that assists the immune system, thus allowing yeasts to grow out of control. Any female analyst or juror will know that if she is on antibiotics she stands a higher risk of having a yeast infection. This occurs because the antibiotics are indiscriminately attacking the normal bacterial cells that are usually helping to keep the yeast at bay.

The fact that a client has a yeast infection, itchy scalp, or nail fungus may just be a common and limited infection. However, if it is a reoccurring or persistent and distressing problem, it may be a sign or symptom that the body is full of yeast and these complaints represent worrisome overgrowth. Not being properly diagnosed, as is the usual situation since the condition is rarely recognized in modern medical practice, can lead to further strengthening of the Syndrome. For example, a woman has a yeast infection and she goes to the doctor. The doctor prescribes antibiotics or an over-the-counter medicine that will temporarily relieve the overgrowth in that location. But that medicine may simply allow the yeast to grow even more and reside deeper in the gut to manifest itself somewhere later. Without the proper dietary and medical solution, any yeast problem can develop into a cycle and create the Yeast Syndrome.

From the Yeast Syndrome, we can transition further into the variant described as Auto-Brewery Syndrome. While very rare, it’s becoming more known through news articles making their way around, due largely to the alarming appearance of the Syndrome. For years, scientists have discounted the Auto-Brewery Syndrome, thinking the patient must be a closet alcoholic. However, with advancements in world news, many more patients suffering from this disease are making international news. The Auto-Brewery Syndrome occurs when the subject has a tremendous amount of yeast already existing in the body, specifically within the lumen of the gut. Then when the subject consumes fruits, sugars, or starches, which are all an excellent source of glucose, the yeast in their body devours the glucose and creates ethanol as a byproduct. This is also known as auto-generated alcohol. Since the body usually can’t metabolize the alcohol at a faster rate than it’s being produced and absorbed, intoxication occurs. The intoxication suffered as a result of Auto-Brewery Syndrome appears no different than the intoxication from the consumption of alcohol. The sole difference, with such an episode, is there was never a consumption of alcohol to a level of intoxication.

The Yeast Syndrome and Auto-Brewery Syndrome Defense

Until the 1920s, the medical community did not properly understand diabetes and thought many diabetics were drunks. The isolation and development of insulin by Canadian surgeon Frederick Banting, for which he was awarded the Nobel Prize in Physiology or Medicine in 1923, finally allowed physicians to appreciate and control the puzzling biochemical changes that distorted the behavior and degenerated the organs of people with what was described as diabetes. It has taken years of careful observation and research to understand human blood sugar issues and recognize how to properly diagnose and effectively treat diabetes. Just like diabetes as late as the early 1900s, the Yeast Syndrome is far from being understood. Part of the confusion is that the symptoms of yeast overgrowth have been demonstrated to affect virtually any functions in our body, ranging from very apparent physical outgrowths to depression or lack of sexual drive. It just depends on where the yeast resides, the toxins then produced, and how they affect each person. These affects will vary dramatically based on their personal characteristics, degree of rest or stress, diet, specific health issues, nutritional deficiencies, and other toxic exposures.

Nevertheless, it will be an uphill battle for the trial attorney to educate the jury, Court, and district attorney about the complex nature of the Yeast Syndrome. However, the trial attorney’s best friend when discussing this Syndrome is common sense. Most analysts will not be educated on the science of yeast, let alone the Syndrome. Yeast infections can occur on any orifice in the human body and the entire epidermis. While these are localized and frustrating “minor” problems, often they evolve into, or result from, the more ominous metabolic distortions in all organs associated with the toxins. This includes auto-production of ethanol in the gut, elaborated by uncontrolled, unsuspected, and untreated overgrowth of yeast in the body, leading to the medical condition identified now as the Yeast Syndrome. Most juries will have a female on the panel or someone married to a female. The most common type of yeast overgrowth is a vaginal yeast infection. Most women know that taking antibiotics or eating too many sugars or starches (carbohydrates) can cause a yeast infection.

While the Court may sustain relevancy objections due to a lack of awareness of a possible underlying disease every bit as important as diabetes, it’s important then to begin this discussion in voir dire. Again, asking about candidiasis or the Auto-Brewery Syndrome to the jury panel may evoke a conversation important to the defense. Most in the medical community know about localized yeast infections (candidiasis), but the vast majority have no appreciation for the significance of deeper metabolic disruptions associated with the Yeast Syndrome. Although some may have read the occasional sensationalized articles on the Auto-Brewery Syndrome, very likely they will have misunderstood this to be a “very rare” and probably genetic-based condition. Encourage a discussion on the validity of the defense.

Obviously, some jurors may think it’s just a legal ploy, but you may have other jurors fighting your case for you. Remind them how people thought diabetics were drunks or suffering with mysterious mental impairments, but now more-educated patrol officers must ask about diabetes because of its mimicry of intoxication. Caveat: Most people suffering with the Yeast Syndrome will have absolutely no idea that a medical condition—toxic changes associated with internal yeast overgrowth—can explain bizarre behavior; more likely, they will insist that they have imbibed minimal alcohol, or none at all, in the preceding hours, a denial easily disregarded because they clearly “look” or “behave” drunk beyond their claims.

Unsuspected and rare forensic sample changes related to C. albicans, or metabolic distortions commonly created by an underlying but untreated Yeast Syndrome (including coordination, balance, speech, and perceptual difficulties), and outright mimicry of “irresponsible over-drinking” by the (almost) never diagnosed medical condition, Auto-Brewery Syndrome, are new defenses that should be available to the trial lawyer for the right client and case. Either: 1) the client doesn’t look intoxicated, but the blood result says they are very intoxicated, which could mean the sample was contaminated with C. albicans; or: 2) the client didn’t start out looking intoxicated and, depending on the elapsed time since ingestion of sugars or starches, possibly became progressively more intoxicated as the night went on, suggesting Auto-Brewery syndrome. Perhaps more difficult to explain to the prosecutor, court, or jury is the person who “looked” intoxicated when arrested, perhaps even exceeding per se limits on the breath or blood test, but who persistently denied sufficient alcohol intake. Clients whose stories “don’t fit” the classic DWI scenario deserve evaluation for an unsuspected and untreated medical condition like the Yeast Syndrome or the Auto-Brewery Syndrome, which could explain the puzzling discrepancy. In the end, it’s the State’s burden to exclude any reasonable doubt. Only a defense attorney aware of these alternative explanations is in a position to raise these questions. Further, the client who is inexplicably suffering deserves to have these issues brought forward. Lastly, each of these defenses are scientifically and medically valid and reasonable.


1. Lough, Patricia S. and Fehn, R., “Efficacy of 1% Sodium Flouride as a Preservative in Urine Samples Containing Glucose and Candida Albicans,Journal of Forensic Sciences, JFSCA, Vol. 38, No. 2, p. 267 (March 1993).

2. Chang, J. and Kollman, S. E., “The Effect of Temperature on the Formation of Ethanol by Candida Albicans in Blood,” Journal of Forensic Sciences, JFSCA, Vol. 34, No.1, pp. 105–109 (Jan. 1989); Blume, P. and Lakatua, D., “The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum,” Journal of Clinical Pathology, Vol. 60, No. 5, pp. 700–702 (Nov. 1975); Lough, Patricia S. and Fehn, R., “Efficacy of 1% Sodium Flouride as a Preservative in Urine Samples Containing Glucose and Candida Albicans,Journal of Forensic Sciences, JFSCA, Vol. 38, No. 2, p. 266–271 (March 1993).


4. Shepherd, M. G., Poulter, R. T. M., and Sullivan, P. A., “Candida Albicans: Biology, Genetics, and Pathogenicity,” Ann. Rev. Microbiol., Vol. 39, p. 580 (1985).

5. Id.

6. Id.

7. Id.

8. Shepherd, M. G., Poulter, R.T.M., and Sullivan, P.A., “Candida Albicans: Biology, Genetics, and Pathogenicity,” Ann. Rev. Microbiol., Vol. 39, p. 580 (1985); Trowbridge, J. P. and Walker, M., “The Yeast Syndrome, How to Help Your Doctor Identify and Treat the Real Cause of Your Yeast-Related Illness,” (Bantam Books 1986).

9. Chang, supra at 105.

10. Chang, J. and Kollman, S. E., “The Effect of Temperature on the Formation of Ethanol by Candida Albicans in Blood,” Journal of Forensic Sciences, JFSCA, Vol. 34, No.1, p. 105 (Jan. 1989); Blume, P. and Lakatua, D., “The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum,” Journal of Clinical Pathology, Vol. 60, No. 5, pp. 700–702 (Nov. 1975); Corry, J. E. L., “Methods of Assessing the Effect of Microbes in Blood and Urine on Ethanol Levels,” paper presented at the Eighth International Conference on Alcohol, Drugs, and Traffic Safety, Stockholm, Sweden (June 1980).

11. Chang, supra at 105.

12. Id.

13. Id. at 108.

14. Id.

15. Id.

16. Id.

17. Id.

18. ; Trowbridge, J. P. and Walker, M., “The Yeast Syndrome, How to Help Your Doctor Identify and Treat the Real Cause of Your Yeast-Related Illness,” p. xvi (Bantam Books 1986).

19. Trowbridge, J. P. and Walker, M., “The Yeast Syndrome, How to Help Your Doctor Identify and Treat the Real Cause of Your Yeast-Related Illness,” p. xvi (Bantam Books 1986).

20. Id.

21. Id. at 1.

22. A 2010 study reviewed forensic sampling and concluded that skin preparation with 70% isopropyl alcohol has little if any effect on the concentration of ethanol in the blood sample. Tucker, A., and Trethewy, C., Lack of Effect on Blood Alcohol Level of Swabbing Venepuncture [sic] Sites with 70% isopropyl alcohol, Emerg Med Australias, 2010 Feb; 22(1): 9–12.


24. Chang, J. and Kollman, S.E., “The Effect of Temperature on the Formation of Ethanol by Candida Albicans in Blood,” Journal of Forensic Sciences, JFSCA, Vol. 34, No.1, p. 105 (Jan. 1989); Blume, P. and Lakatua, D., “The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum,” Journal of Clinical Pathology, Vol. 60, No. 5, pp. 700–702 (Nov. 1975).

Look Here: 4th Amendment Musings


The plain view doctrine is an established—but sometimes misunderstood principle—which provides that police officers who are lawfully engaged in an activity in a particular place may immediately seize suspicious property without a warrant if the officers perceive the property during the scope of their lawful activity and if the incriminating character of the property is “immediately apparent.”1 The doctrine is not an exception to the requirement that officers must have legal authority to be present in or to conduct a search of a place.2 Rather, it is an extension of officers’ authority to conduct a seizure of property discovered while conducting an otherwise lawful activity.3

The doctrine has its origins in the general rule that incriminating objects found in a public place may be seized without a warrant.4 Owners of property located in a public place have no expectation of privacy associated with such property. While an owner of property located on private premises does have an expectation of privacy, that expectation dissolves once a police officer lawfully conducting an activity on the premises has observed the property, and the owner’s only remaining interests are those of possession and ownership.5 Under these circumstances, the courts have found that requiring police to obtain a warrant for such property would constitute a “needless inconvenience,” and have therefore created the plain view doctrine to allow for the immediate, warrantless seizure of items lawfully observed.6

As the test has evolved, there have been some judicial disputes about what is required for the plain view doctrine to be properly invoked, but those disputes were settled definitively by the Supreme Court in 1990 in Horton v. California.7 That case held that for the plain view doctrine to apply, three conditions must be satisfied. First, an officer must be lawfully present at the place where the seized object can be plainly viewed. Second, the officer must have a lawful right of access to the object. Finally, the incriminating character of the object must be “immediately apparent” to the officer at the time the object is perceived.

Texas courts generally follow the Federal rules in application of the plain view doctrine, and have specifically rejected any greater protections under the Texas Constitution than those provided by the Fourth Amendment.8 The first prong of the Horton test simply inquires whether the officers had a right to have access to the premises where the incriminating evidence is found. Thus, the initial entry by officers onto private premises must be lawful under the Fourth Amendment, either pursuant to a lawfully issued warrant, some exception to the warrant requirement, or under the same rules as applicable to the general public.9 The second prong of Horton is an outgrowth of the first, and serves as a limitation upon officers converting a search pursuant to a warrant founded in some specificity into a general warrant.10 It simply requires, in addition to being lawfully present on the premises, that officers must not exceed the scope of their lawful activities by searching containers, furniture, closets, etc., to which their lawful search authority does not extend.11,12 The final prong of the Horton test requiring that the incriminating nature of the evidence be “immediately apparent” to officers has been described as a requirement that police must have probable cause to associate the item with criminal activity at the time of the seizure (as opposed to actual, firm knowledge of illegality).13 It is worth noting that the doctrine is not limited to the sense of sight; officers may use any of their senses, including feel, in satisfying the Horton test.14

In application, the initial question that should be asked when reviewing evidence ostensibly seized under the plain view doctrine is “what authority did the officers have for being on the premises?” If officers are present pursuant to a valid warrant—either search or arrest—then the Horton test is satisfied. If not, then some validly invoked exception to the warrant requirement must be identified in order for a plain view seizure to be justified: Exigent circumstances, the “automobile exception,” the community caretaking function, and consent to the entry are all examples of potential valid warrant exceptions that will support a plain view seizure. With either a warrant or a valid exception, it is important to note any limitations that would limit an officer’s access to certain areas of a given premises. For instance, consent to admit officers into a living area for an investigative conversation may not extend to a general consent to peruse the master bath suite of a residence.

Assuming that officers are lawfully present, the question becomes whether the officers had lawful access to view the seized item.15 If an item is in open view in a place where officers have authority to be, then the plain view doctrine undoubtedly applies. But officers may find evidence in plain view only as a result of opening cupboards, cabinets, drawers, and other containers. For these situations, the question focuses on whether officers properly exercised authority to access these areas. If officers are executing an arrest warrant at a defendant’s home, for example, they are justified in checking areas where a person may be concealed, but would likely exceed the scope of their authority (i.e., would have no right of access) by checking the sock drawer.16

The final question turns to a probable cause determination based on the state of knowledge of the officers at the time of the seizure. “Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution [to believe] that certain items may be contraband.”17 Officers may combine their training and experience with their observations to draw inferences as to whether an item is likely associated with criminal conduct.18

To reiterate, the plain view doctrine is not, in and of itself, an exception to the warrant requirement regarding police conduct of searches; rather, it provides the authority for officers to make warrantless seizures of evidence they lawfully have independent access to and which they observe in places they have independent authority to be. Given the nature of the doctrine as “piggybacking” on other Fourth Amendment law, application of the plain view doctrine can be nuanced and will almost certainly be fact-oriented on a case-by-case basis.

When analyzing a claimed plain view seizure, ask:

1. Was the officer lawfully present at the place where the object could be plainly viewed?
2. Did the officer have the lawful right of access to the object?
3. Was the incriminating character of the object “immediately apparent” to the officer the moment the object was perceived?

Because most of us are persuaded by what is familiar, what your circuit court has said on the matter may be a good place to begin your research after comparing the facts of your particular case to Horton v. California. In that vein, here is a quick reference chart arranged by region:

Court of Appeals DistrictPublished opinion since Horton
1st—HoustonCarmen v. State, 485 S.W.3d 488 (2016)
2nd—Fort WorthCollins v. State, 462 S.W.3d 617 (2015)
3rd—AustinState v. Elrod, 395 S.W.3d 869 (2013)
4th—San AntonioTollefson v. State, 352 S.W.3d 816 (2011)
5th—DallasState v. Amarelle, 190 S.W.3d 1 (2005)
6th—TexarkanaCrayton v. State, 485 S.W.3d 488 (2016)
7th—AmarilloBarnes v. State, 424 S.W.3d 218 (2014)
8th—El Paso*no published opinions located
9th—BeaumontPace v. State, 318 S.W.3d 526 (2010)
10th—WacoWhite v. State, 50 S.W.3d 31 (2001)
11th—EastlandDew v. State, 214 S.W.3d 459 (2005)
12th—TylerState v. Bagby, 119 S.W.3d 446 (2003)
13th—Corpus ChristiState v. Bland, 475 S.W.3d 327 (2013)
14th—HoustonFord v. State, 179 S.W.3d 203 (2005)


1. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971).

2. Some confusion on this point exists; see, e.g., 22 Tex. Jur. 3d § 429, characterizing the doctrine as a general exception to the warrant requirement. A close reading of the relevant cases, however, reveals the fine distinction in which courts regard plain view as an exception to the warrant requirement only in regard to seizure of incriminating evidence, and emphatically not as an exception regarding searches.

3. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983)(opinion of Rehnquist, J.) (“‘Plain view’ is perhaps better understood, therefore, not as an independent ‘exception’ to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.”)

4. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980).

5. Texas v. Brown, 460 U.S. at 739, 103 S.Ct. at 1541.

6. Id.

7. 496 U.S. 128, 110 S.Ct. 2301 (1990).

8. Hillsman v. State, 999 S.W.2d 157 (Tex. App.—Houston [14th Dist.] 1999, pet ref’d).

9. See, e.g., State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013)(officers could not execute warrantless entry to seize allegedly mistreated dogs despite dogs being observable from alleyway); State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (business premises are protected under Fourth Amendment, and police may enter premises open to the public to the same degree as the general public has access without a warrant and may observe objects in same manner as the general public would be able); Shadden v. State, 431 S.W.3d 623 (Tex. App.—Amarillo 2014, reh’g overruled)(police officer who found firearm and contraband in plain view did not exceed scope of exigency justifying his presence on the premises).

10. Horton, 496 U.S. at 134, 110 S.Ct. 2301.

11. E.g., pursuant to a valid search warrant, officers may only search for the object of the search and places where there is probable cause to believe it may be found; evidence found in plain view along the way would be that evidence to which officers have a right of access. Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991).

12. It is worth noting that there is a split of authority in Texas regarding whether the plain view doctrine applies to seizure of items unnamed in an “evidentiary search warrant” issued pursuant to Tex. Code Crim. Proc. Ann. Art. 18.02(10). See Zarychta v. State, 44 S.W.3d 155 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d, cert. denied, 2002). Thus, the Code of Criminal Procedure may serve as a statutory limitation upon the doctrine.

13. Id., citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149 (1987)(stereo equipment not related to officers’ presence on premises was not known to be stolen until after officers moved it to obtain serial numbers, constituting an independent, warrantless search). See also State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010); Crayton v. State, 485 S.W.3d 488 (Tex. App.—Texarkana 2016).

14. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 113, S.Ct. 2130 (1993), and Graham v. State, 893 S.W.2d 4 (Tex. App.—Dallas 1994, no pet.)(both regarding “plain feel,” especially in context of a Terry frisk; but see State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)(smell alone does not justify a warrantless search, though it may contribute to the probable cause prong of Horton for a warrantless seizure).

15. As a cautionary note, some courts invert the order of the second and third Horton factors. See, e.g., Goonan v. State, 334 S.W.3d 357, 361 (Tex. App.—Fort Worth 2011, no pet.)

16. An interesting case highlighting the distinction is Keehn v. State, 279 S.W.3d 300 (Tex. Crim. App. 2009), in which the Court found that officers who observed a pressurized gas tank within a vehicle parked in a private driveway and who had probable cause to believe the tank might contain a drug precursor chemical nevertheless did not have a “right of access” to the interior of the vehicle, and thus could not seize the tank based on the plain view doctrine, although they could search the vehicle pursuant to the “automobile exception” to the warrant requirement and seize the tank as a result.

17. Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—San Antonio 1985, no pet.)

18. Nichols v. State, 886 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). Goonan, supra, also provides an instructive discussion of probable cause; in that case, officers searching a vehicle pursuant to the automobile exception found a pill bottle in the console that did not bear the driver’s name, was old, did not allow for refills, and with respect to which Goonan “had made furtive movements.” The Court of Appeals approved not only the officer’s seizure of the bottle, but a subsequent search of its contents, which revealed contraband. 334 S.W.3d at 361.

Jury Trials—Is It Witch Science?

Many of the Americans living in the Southwest are, of course, of Mexican descent. Though many families have lived in the United States for several generations, there is a continual influx of new immigrants from Mexico. As a result, many cultural phenomena brought from Mexico continue to thrive in the barrios (neighborhoods) of the Southwest. This is as true in San Antonio as anywhere else in the region. These cultural phe­nomena affect the food we eat, the music we listen to, the customs we adhere to, and, in their most important manifestation, what we believe.

The curanderos, for example, are believed to possess magical powers and special knowledge of plants and herbs, with the power to do great good or great evil according to the way in which they are mixed or prepared. This tradition is as much alive in San Antonio as in the villages of Mexico whence it sprang.

The attitude toward curanderos is a curious mixture of awe, fear, and ambivalence. The “hip” educated side of us knows intellectually that they do not possess magical powers, but our hearts simultaneously fear that perhaps our heads just don’t understand.

We’ve all heard the stories from the old folks of how some unbeliever such as ourselves has been cursed and lived to rue the error of his ways, brought under the power of a voodoo-like spell.

I once had a robbery by assault with firearms case (aggravated robbery now) in which a curandera played a very important role—as a juror. She had come to court dressed completely in black and wearing a shawl over her head, and we had all simply assumed her to be a widow, wearing black to honor the memory of her deceased husband. That practice still exists among some families of Mexican descent, and women dressed like she was are still a fairly common sight around here.

We later learned that she was wearing black as part of a spell she was in the process of casting. However, the jurors didn’t know that until they were in the jury room, and neither the judge nor the lawyers became aware of that fact until after the jury had been dismissed (without a verdict having been reached) as being hopelessly deadlocked.

At that time, we learned that the jury had very quickly found itself divided 11–1 in favor of conviction, and that the lady in black was the lone holdout for acquittal. So far as the jury could gather, her basis for voting Not Guilty was a combination of her special ability to perceive the truth and the State’s failure to produce the gun with which the robbery had been committed.

Now, a skeptic could be forgiven for concluding that the lady’s ability to perceive the truth was no better than yours or mine, and I won’t comment about that.

What I will tell you is that the State’s inability to produce the gun was legally and logically irrelevant. That an armed robbery had occurred, and that the unfortunate victim had been severely pistol-whipped by the perpetrator of the robbery, had not been contested. The defense was, quite simply, that somebody else had committed the crime and not the defendant on trial. (This is sometimes referred to as the “SODDI” defense—“some other dude did it.”)

The defendant, a young black man without a job, who simply “hung out” on the streets, had been unable to produce a meaningful alibi—such young men never are. Their days are all ill-defined amalgams of time spent on various street corners, in miscellaneous pool halls, and on basketball courts around the neighborhood, and all that time is spent with others very much like themselves.

Typically, they have no idea where they were last Thursday at 4 o’clock in the afternoon, or who they were with. If they could remember, the guys who were with them can’t, and if they can, nobody believes their testimony anyway, because they too are unemployed black youths who just “hang out.”

Our defense had been very straightforwardly based on the defendant’s chin. He had the most unusual chin I have ever seen, in that it was split by a cleft so deep that it actually appeared that he had sustained a serious injury. Although the victim, who had been badly injured, could and should be forgiven by a jury for not remembering every detail of his assailant’s appearance, we thought the defendant’s chin to be so unusual that anyone accosted by him would have mentioned his chin.

The victim had made no mention of his assailant’s chin and couldn’t remember anything memorable about it even when I specifically asked about his assailant’s chin (while the defendant blocked his chin with his hand).

He had nevertheless insisted that the defendant was his assailant, and 11 of the jurors had believed him.

When the twelfth juror explained her “reasoning,” so far as I could tell from talking with the other jurors later, they had broken into three groups. The largest group thought the woman was crazy and there would be no reasoning with her. A couple apparently became about half-convinced that the absence of the handgun was important, and a couple were either concerned that perhaps she did possess special powers to perceive the truth, or that crossing her might end up getting them cursed. Whatever the basis, there could be no question but that jury was hopelessly deadlocked.

The case was tried again and upon essentially the same evidence the second jury was also unable to agree upon a verdict. This time the split was 10–2 for Not Guilty, so the State dismissed the case rather than try it a third time.

This case troubled me at the time I was handling it, and continues to trouble me as I try to interpret what it tells us about our jury system.

After 24 jurors had heard the evidence in the case, 13 thought the defendant was guilty and 11 thought he was not guilty. However, 11 of the 13 who thought he was guilty sat on the first jury, and if only one vote had changed he would have been found guilty. If found guilty, he was facing up to a life sentence. He thus quite literally was one vote away from spending a very long time in the penitentiary, but ended up being freed.

On the other hand, if the first jury had voted 10–2 for acquittal, as the second jury did, the case would probably have been dismissed by the prosecution at that point, and there would have been no second trial.

The defendant, being poor and charged with a very serious offense, was unable to post bail, and thus had been in continuous custody from the time of his arrest until after the second trial. In all, he spent about eight months in custody on an offense that was ultimately dismissed.

Whoever committed this offense richly deserved a long prison sentence. If the defendant was the culprit, he got off very, very lightly, the undeserving beneficiary of a noteworthy chin and an unobservant victim.

On the other hand, if the defendant was in fact innocent, our system held him in confinement for eight months for nothing, and he has been greatly wronged. Moreover, whoever actually committed the offense got away with it.

As a practical matter, once a victim has committed himself to identifying one person as the perpetrator of the offense, there is no way a successful prosecution of anyone else could occur.

What we learn from this case, ultimately, is that our system—like all others—is fallible, and that injustice is bound to occur in any fallible system.

The system became fallible, by the way, in the year 1215. No, not because of the Magna Carta, although that is the year that the English nobility extracted that charter from King John. Rather, it was because of Pope Innocent III’s Fourth Lateran Council, which also occurred that year.

Trials in England, until that time, had been by battle or by ordeal. Knights and nobility would settle their matters in the lists, on the Field of Honor, by the lance.

Lesser folk would be bound and thrown into the lake, to see if they sank; if they did not, they were clearly being rejected by the water, were thus plainly guilty, and were promptly hanged. If they sank, they were accepted by the water and thus plainly innocent, and if they were lucky, they were pulled from the water before they drowned.

There were other trials by ordeal. Some would be required to walk barefoot across a bed of coals, others to grasp a hot poker in their bare hand. In each case, guilt or innocence would be determined by the extent of injury and the rapidity and extent of recovery.

It was also true that the nobility began to use mercenaries (what were then called “champions”) to defend their honor with lance and sword.

What made all this infallible was the participation by priests of the church, who would invoke the presence and judgment of the Almighty in these various proceedings to insure that Right would Prevail and Truth be Upheld. These were the days, you will recall, when second and third sons, being denied all right of inheritance by the law of primogeniture, had to make their ways as best they could, either as knights errant or clergymen.

Occasionally, a clergyman could be found who might be persuaded (upon payment of a proper indulgence) of the justice of one’s cause. Perhaps, despite appearances to the contrary, the water did accept one; mayhap, the scarring from the poker, severe to the untrained eye, reflected God’s judgment of innocence to the eye made more perceptive by study of things sacred and the secret beneficence of the purse.

Enter Innocent III, with his narrow-minded Continental point of view. Thenceforth, he decreed following the Fourth Lateran Council, priests of the church shall not participate in those godless rituals known only to the barbarous English and called trials by battle and by ordeal.

The English—and we, the progeny of their legal system—have been fallible ever since.

May 2017 Complete Issue – PDF Download



21 | The 41st Annual Tim Evans Texas Criminal Trial College
23 | Nondisclosure Update – By Sam Adamo Jr.
28 | Candida albicans, the Yeast Syndrome, and the Auto-Brewery Syndrome: Medical Defenses to DWI – By Mark Ryan Thiessen & John Parks Trowbridge, MD
34 | The Plain View Doctrine… Quickly – By David Guinn Jr. & Aaron R. Clements
37 | Jury Trials—Is It Witch Science? – By Judge Pat Priest

6 | President’s Message
8 | Executive Director’s Perspective
10 | Editor’s Comment
12 | Off the Back
14 | Ethics and the Law
16 | Federal Corner
19 | Shout Outs

5 | CLE Seminars and Events
39 | Significant Decisions Report

President’s Message: Número Diez – By John A. Convery


It’s hard to believe that this is my last President’s message! That means my year as the President of TCDLA is coming to an end, and it has just flown by. What a ride it has been!

Initially, I was going to write more about some of the bills moving in the Texas Legislature related to sexual behavior, the new offense of indecent contact, definitions of consent, the crime of bestiality—or some other bills of importance, like the 300-page rewrite of the code or the bill that would eliminate sales tax on your morning pastry as long as it is served cold (except kolaches—don’t worry, they can be hot or cold and avoid the tax!).

But, upon some reflection, I feel like we will collectively hear about new laws in June at Rusty Duncan, so instead of discussing more potential bills while there is still a month left in the 85th Legislative Session, I decided to use this last Voice message to reflect on the last year and successes of TCDLA.

TCDLA remains the lead defense attorney organization providing critical services to our membership. Our heavy-hitters Strike Team had to stop everything in a few cases and go to the rescue of an individual member being targeted by a judge. Our Amicus Committee prepared and submitted several briefs that we hope will help judges align with the right point of view and catalyze change on important issues.

TCDLA put on a total of 125 defense-attorney or defense-team training programs—including 48 seminars on location and 77 online courses—to ensure that our members have the latest and most reliable information as they take on serious criminal cases. More than 5,675 defense attorneys and team members attended the seminars held statewide. The reviews from attendees are generally glowing, and attendees report that they learn new and innovative ways to defend their cases from our trainings.

Not that I have any bias, but certainly the President’s Trip CLE put on in the Voyager of the Seas Conference was a highlight of the year—we had great speakers, learned and laughed in the sun. In some cases, we learned too much information about our colleagues.

TCDLA has faced a number of challenges this year as well. Our staff has worked tirelessly to put together these amazing and creative CLEs. Our financial staff has worked to ensure complete compliance with the terms of our grant from the Court of Criminal Appeals. The TCDLA audit, completed in February 2017, indicated no issues that were out of standard compliance.

Our legislative team has—and is still—working long days ensuring that our clients are protected from unfair legislative efforts to undercut our clients’ statutory or constitutional rights. In the waning days of the Legislature, they are watching prosecutors or other interest groups who may attempt to put in amendments with which we disagree. Already we have seen huge successes from our lobbying team—not the least of which is insisting that preventive detention be taken out of the pretrial release bill—so now, our clients will not be held without bond while their cases are pending.

We all know that the success of a leader, a director, or a President is the quality of his or her staff. I believe that TCDLA has an amazing and committed staff, for which we members and leaders should be grateful. I hope to stay involved so that there is continuity among our leaders and institutional memory about important decisions. And, most importantly, I wish every success for our new President, David Moore, as he takes on the gavel and the responsibilities it represents.

Executive Director’s Perspective: Motions from the Quarterly Meeting – By Joseph A. Martinez


The Texas Session is ongoing and we are well represented with our lobbying team of Allen Pace, Andrea Keilen, and David Gonzales, all under the supportive oversight of the TCDLA Legislative Committee, with Bill Harris (Fort Worth) as Chair.

Special thanks to Maureen Franco and Mary Stillinger, our course directors for our Wild Wild West Federal and State Criminal Law seminar held El Paso in April. Thanks to all we had 73 attendees. Special thanks to Jim Darnell and Joe Spencer, our course directors for the Family Violence seminar also held in El Paso in April. Thanks to everyone’s help we had 59 attendees. The TCDLA board had their quarterly board meeting in El Paso, we believe the first TCDLA board meeting held in El Paso. The board hopes to return very soon. The following motions were passed at the board meeting:

MOTION: Minutes—December 3, 2016
Motion to adopt the minutes from the TCDLA Board Meeting on December 3, 2016, in Dallas, made by Michael Gross, seconded by Laurie Key—motion carries.

MOTION: Approve 12/28/16 Board Electronic Vote for Amicus Brief—Case of Matthew Clendennen: 8–0 made by David Ryan, seconded by Sarah Roland—motion carries.

MOTION: Approve 1/3/17 Board Electronic Vote for Amicus Briefs ($400)—1) Waldrip/Tharp, 2) Ramirez/Tamayo made by David Ryan, seconded by Jim Darnell—motion carries.

MOTION: TCDLA opposes the expansion of Pretrial Detention expansion in Texas, made by David Moore, seconded by Adam Kobs—motion carries.

MOTION to approve Personnel Manual changes:
Comp Time add: Once submission of resignation is submitted, from that day forward the use of comp time is not available.
Holiday Time add: Employees are not paid for unused holiday time if you leave or upon termination of employment.
Sick Leave add: Employees are not paid for unused sick time if you leave or upon termination of employment. Once submission of resignation is submitted from that day forward the use of sick time will require a doctor’s note. Motion made by Mark Snodgrass, seconded by David Moore—motion carries.

MOTION: Money transfer
Motion to transfer $65,000 from reserves into TCDLA Operating account as Executive and Budget Committee have approved. Motion made by John Hunter Smith, seconded by Rusty Gunter—motion carries.

John Convery appointed Lydia Clay-Jackson (Conroe) and Tim Evans (Fort Worth) as Deans Emeritus of the Tim Evans 41st Annual Texas Criminal Trial College held in Huntsville in March. John also appointed the new Deans, Kerri Anderson Donica (Corsicana), Dean of Students, and Lance Evans (Fort Worth), Dean of the Faculty. We had 45 faculty from all around Texas. This year we had 77 lawyers being trained in trial skills. It was a very successful college. We also thank Philip Lyons, Dean of Sam Houston State University, for his support of the college and Ms. Sabrina Rowley, administrative assistant who provides support throughout the college.

A very special thanks to James Nesci, Dean of the National College for DUI Defense (NCDD), for supporting TCDLA in a joint co-sponsorship of their 24th Annual Mastering Scientific Evidence (MSE) seminar held in New Orleans in March. Special thanks to Mimi Coffey (Fort Worth), Doug Murphy (Houston), Troy McKinney (Houston), and Gary Trichter (Bandera), course directors for the seminar. This is the 10th year of TCDLA co-sponsoring this seminar with NCDD.

If it is April, it is time to register for the 30th Annual Rusty Duncan Advanced Criminal Law Course to be held June 22–24, 2017, in San Antonio at the beautiful Hyatt Regency Hotel on the San Antonio Riverwalk. Please join us for four days of outstanding training, camaraderie, and beautiful San Antonio. Please go to our website for more information.

TCDLA Board of Directors invites you to attend the 46th Annual TCDLA Members Meeting on Saturday, June 24, 2017, 15 minutes after adjournment of the 30th Annual Rusty Duncan Advanced Criminal Law Course. This should be approximately at 11:30 am in the ballroom of the Hyatt Regency Hotel.

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

Don’t have a local criminal defense bar in your area? Would 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: The Top Ten – By Sarah Roland


A friend and colleague sent me this blog post from Judge Richard G. Kopf on Scott Greenfield’s highly respected blog Simple Justice a few days ago, reprinted here with their kind permission. I couldn’t help but smile and pass it along. It speaks for itself and can’t be said any better.

As I write this on a Sunday morning, I am in the middle of a complex criminal jury trial that will likely last four weeks. Of course, I cannot write about the substance of the case or the lawyers. But watching the criminal defense lawyers in that case started me thinking about my observations of other criminal defense lawyers over the last 25 years.

It occurred to me that the readers might be interested in my top ten observations about criminal defense lawyers from the perspective of a federal trial judge. So, in no particular order of importance, here are my observations:

10.  Criminal defense lawyers are at great risk of becoming drunken bastards—the stress is beyond description.

9.   Being a good criminal defense lawyer requires sincerity, whereas being a great criminal defense lawyer requires the ability to fake it.

8.   When it comes to convincing a client to accept a guilty plea because it is in the manifest best interests of the client, a criminal defense lawyer must become a client whisperer.

7.   When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.

6.   Real criminal defense lawyers don’t hate prosecutors, but they don’t trust them either.

5.   Criminal defense lawyers know that the federal trial judge is never their friend, but the judge is seldom their enemy.

4.   A tiny fraction of people who have law degrees have the ability to become even mediocre criminal defense lawyers.

3.   If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.

2.   You must have a big ego to become a decent criminal defense lawyer, but you must not be an egotist—it is never, ever about you.

1.   Real criminal defense lawyers represent clients and not causes.

By the way, this was to be my last post on Fault Lines. So, I will end by making explicit what is implicit in the foregoing. To all who labor as criminal defense lawyers and who aspire to be good, and perhaps even great, ones, I respect you more than you will ever know.

All the best.

Richard G. Kopf
Senior United States District Judge (Nebraska)

Kopf’s Top Ten Observations About Criminal Defense Lawyers

Off the Back: Evaluating Anonymous Tips – By Stephen Gustitis


I dropped by a suppression hearing recently and listened to a prosecutor argue the merits of an anonymous tip, which they claimed justified an investigatory detention. I was puzzled. The State asserted their anonymous tip was “reliable” and, therefore, justified the stop and subsequent arrest of the defendant. Though recent case law had expanded the realm of situations in which anonymous tips may justify a detention, I soon realized the prosecutor was arguing only half the story. Evaluating a stop based upon an anonymous tip was actually a two-step process. First, was the tipster’s information reliable? If yes, was the information contained in the tip sufficient to establish reasonable suspicion to detain the suspect for further criminal investigation?

A few facts from the hearing may help clarify the approach to challenging an anonymous tip. A bicycle cop and his partner were patrolling a bar district late one night, several hours before closing time. One officer observed an unidentified person leaving a nearby parking lot driving a pickup truck. The truck drove past the officer and reported that “some occupants in a tan Silverado just knocked into our doors getting into their vehicle . . . you should check on them.” The anonymous tipster then sped away, never to be seen or heard of again. The bike cop then peddled over to a tan Silverado, which was attempting to leave the parking lot. He detained the driver and two passengers and subsequently developed probable cause to arrest the driver for driving while intoxicated. The cop testified the driver of the Silverado may have been intoxicated based on the time of day, the sizable number of bars in the area, and the fact intoxicated persons were often careless when opening their car doors in close proximity to other vehicles.

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In the anonymous tip context, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), developed the idea that both the quantity and quality of information possessed by the police were important in evaluating an investigatory detention. In White, police received an anonymous telephone tip that Ms. White would be leaving a particular apartment, at a particular time, in a particular vehicle going to a particular motel, and that she would be in possession of cocaine. When evaluating law enforcement’s detention of Ms. White, the Court stated: “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture’ [citations omitted]—must be taken into account when evaluating whether there is reasonable suspicion.” White, 496 U.S. at 330.

Tip Reliability

Case law interpreting the reliability of anonymous tips is extensive and should be examined for each situation. But in a recent Supreme Court opinion regarding the reliability of such tips, Navarette v. California, __ U.S. __, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), Justice Thomas wrote for the majority and held that under appropriate circumstances an anonymous tip could demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop” by accurately predicting future behavior. Navarette, 134 S.Ct. at 1688. (citing Alabama v. White, 496 U.S. 325, 327 (1990)). The Court noted their anonymous caller necessarily claimed to have eyewitness knowledge of alleged dangerous driving and that it was reported contemporaneously with observations made by the caller. Further, the Court believed the caller’s use of the 911 system somewhat eliminated the possibility of making a false, yet anonymous report since these calls could be traced and were routinely tape recorded. Significantly, Justice Scalia dissented and claimed the majority opinion was a departure from the Court’s Fourth Amendment requirement that anonymous tips must be corroborated. He further cautioned that Navarette would be interpreted by police as a rule allowing stops based upon anonymous tips without any corroboration. 134 S.Ct. at 1692 (Scalia, J., dissenting).

Following Navarette, the Texas Court of Criminal Appeals decided Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), another anonymous tip case. In Matthews, an unnamed tipster reported a black male called Neal Matthews, wearing a white muscle shirt and dark pants, was selling crack cocaine out of a white van parked in front of a particular store, a high-crime area known for weapons and drug arrests. The Court noted Navarette and stated an anonymous tip containing adequate indicia of reliability could support reasonable suspicion enough to justify an investigatory detention by police. The Court went on to hold that Mr. Matthews’ detention was supported by reasonable suspicion because the caller’s tip contained enough specific facts, corroborated by police, giving the tip its necessary reliability.

Tip Content

Even if reliable, though, an anonymous tip may still not provide enough quality content to provide law enforcement justification to detain someone for further investigation. In Stewart v. State, 22 S.W.3d 646 (Tex. App.—Austin 2000, reh’g denied), the court considered whether an anonymous tip was reliable enough in its assertion of illegality. The detention was based on anonymous information asserting a green Camaro was parked by the gas pumps at a local convenience store. The caller further stated it was occupied by a passenger and Caucasian driver who was observed falling down “a couple times” trying to get into the vehicle and appeared “highly intoxicated.” Stewart, 22 S.W.3d at 648. The responding officer did not observe anything independently to support reasonable suspicion or to corroborate the anonymous report. The Austin Court of Appeals ruled the stop was illegal. “We are mindful of the public danger posed by intoxicated drivers. But we are also mindful of our obligation to follow established Fourth Amendment precedent. Under that prece­dent, the anonymous caller’s tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellant was driving while intoxicated.” 22 S.W.3d at 650.

Another applicable case was State v. Griffey, 241 S.W.3d 700 (Tex. App.—Austin 2007, no pet.). There an unnamed Whataburger store manager reported a person was “passed out behind the wheel in the drive-through.” Griffey, 241 S.W.3d at 702. When the responding officer arrived an unidentified employee pointed to Mr. Griffey’s car. Griffey was detained by police and, ultimately, arrested for driving while intoxicated. The Austin Court ruled the stop was illegal. It held the manager’s tip did not support reasonable suspicion because the information provided to the police did not allege any criminal activity. The court also effectively distinguished Griffey’s facts from other cases in which informants had allegedly observed and reported specific behavior consistent with the commission of crimes.

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As I observed, the defense attorney respond to the State’s lop-sided argument, and I noticed there were facts cutting both ways concerning the reliability of the anonymous report from the pickup driver. On the one hand, the anonymous information seemed to be contemporaneously communicated to the of­ficer and was purportedly based upon an eyewitness account. Cutting against reliability was the tipster’s quick exit from the scene after briefly talking to the officer, making their identity unknowable. But what struck me was the quantity of information the State attempted to use to establish reasonable suspicion. Was “knocking doors” in a crowded parking lot, in a bar area of town, enough to establish reasonable suspicion the driver of the Silverado may be intoxicated? The tipster had not reported they seemed drunk or that any illegal activity was afoot. Moreover, there was zero information whether the Silverado’s driver was perpetrating the door knocking themselves. Interestingly, the county court at law judge (a former prosecutor herself) did not immediately rule but took the matter under advisement. Maybe that portended a successful outcome for the defense.