Monthly archive

April 2018

May 2018 SDR – Voice for the Defense Vol. 47, No. 4

Voice for the Defense Volume 47, 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. 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.

        3. The summaries reflect the facts and relevant holdings and 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.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Ayestas v. Davis, No. 16-6795, 2018 U.S. LEXIS 1913 (U.S. March 21, 2018)

        Under Hohn v. United States, 524 U.S. 236, 245 (1998), not all decisions made by a federal court are “judicial” in nature; some decisions are “administrative,” and are not subject to the review of the SCOTUS. Administrative decisions are those about things like facilities, personnel, equipment, supplies, and rules of procedure.

        A District Court’s ruling on a funding request under 18 U.S.C. § 3599(f) is not an “administrative” decision.

        Under 18 U.S.C. § 3599(f), “Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.”

        Although the Fifth Circuit adopted the “substantial need” rule before Trevino, after Trevino the rule is too restrictive because Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective. It is possible that investigation might enable a petitioner to carry the burden. In cases where funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.

        Determining whether funding is “reasonably necessary” is a decision as to which district courts enjoy broad discretion.

        A funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. The “reasonably necessary” test requires an assessment of the likely utility of the services requested, and 28 U.S.C. § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

Editor’s note: In federal death penalty litigation, I and other attorneys have argued for years that requiring us to show that we may be “successful” or “win” on an issue before we are granted funding for investigative services for that issue is like putting the “cart before the horse.” Perhaps Ayestas will change this trend.

Marinello v. United States, No. 16-1144, 2018 U.S. LEXIS 1914 (U.S. March 21, 2018)

        Under the second clause of 26 U.S.C. § 7212(a) (Omnibus Clause), a person may not corruptly or by force or threats of force (including any threatening letter or communication) obstruct or impede the due administration of the Internal Revenue Code.

        Under Smith v. Goguen, 415 U.S. 566, 575 (1974), to rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” which could result in the nonuniform execution of that power.

        Under McDonnell v. United States, 136 S.Ct. 2355 (2016), courts cannot construe a criminal statute on the assumption that the Government will use it responsibly.

        To prove a violation of the second clause of 26 U.S.C. § 7212(a) (Omnibus Clause), the Government must: (1) prove an intent to influence judicial or grand jury proceedings by showing that a nexus between the act and the judicial proceedings (the act must have a relationship in time, causation, or logic with the judicial proceedings); and (2) show that the proceeding was pending at the time the defendant engaged in the obstructive con­duct (or at the least was then reasonably foreseeable by the defendant).

United States Court of Appeals for the Fifth Circuit

United States v. Carlile, No. 16-50948, 2018 U.S. App. LEXIS 6243 (5th Cir. March 13, 2018) (designated for publication)

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of ju­dicial proceedings. Error is plain only if it is so clear or obvious that the trial judge and prosecutor were derelict in countenancing it even absent the defendant’s timely assistance in detecting it. Establishing plain error requires a showing that the error was clear under the law in place at the time of trial. Plain error is not usually found if the court has not previously addressed the issue.

        Under the U.S.S.G., a defendant’s criminal history score is based on sentences imposed for prior offenses.

        Under U.S.S.G. § 4A1.1, three points are added to a defendant’s criminal history for each prior sentence of imprisonment exceeding one year and one month, and two points for each prior sentence of imprisonment of at least 60 days not counted in (a). Only one point is assessed for each prior sentence not counted in (a) or (b) up to four points. A sentence of imprisonment is one where the defendant served time in prison or jail.

        Where a court gives a defendant credit for time served from another sentence, the defendant does not “actually serve” time for the subject sentence.

        Under United States v. Stauder, 73 F.3d 56, 56 (5th Cir. 1996), for sentencing for a felon in possession of a firearm conviction, a Texas criminal deferred adjudication can be used for calculating the base offense level under the U.S.S.G.

        Under Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999), in the absence of an intervening contrary or superseding decision by the Fifth Circuit sitting en banc or by the SCOTUS, a panel cannot overrule a panel’s decision.

Facts:

  • Carlile pleaded guilty to possessing a firearm after a felony con­viction.
  • When calculating Carlile’s criminal history score under U.S.S.G. § 4A1.1, the PSR assigned two criminal history points for a DWI conviction, for which Carlile claims he served no prison time. Carlile did not object to this.
  • Carlile’s total criminal history score was 10, and his criminal history category was V.
  • When calculating Carlile’s base offense level under U.S.S.G. § 2K2.1(a)(4)(A), the PSR included as a prior felony conviction a deferred adjudication conviction for AA/SBI. Carlile objected to this.
  • The PSR reported that the total offense level was 17.
  • The U.S.S.G. advisory sentence was 46 to 57 months.
  • The district court sentenced Carlile to 46 months.

Editor’s note: another chance of relief missed because trial counsel did not object. Always make those objections. No matter what it takes or with whatever help you need:

In Re Drummond, No. 17-20618, 2018 U.S. App. LEXIS 7490 (5th Cir. March 23, 2018) (designated for publication)

        Under the All Writs Act, 28 U.S.C. § 1651(a), “the SCOTUS and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

        Mandamus is an extraordinary remedy for extraordinary causes that may issue only if: (1) the petitioner has no other adequate means to attain the desired relief; (2) the petitioner has demonstrated a right to the issuance of a writ that is clear and indisputable; and (3) the issuing court, in the exercise of its discretion, is satisfied that the writ is appropriate under the circumstances.

        Although district court judges have broad discretion in managing their dockets, discretion has its limits.

        Under Calvert Fire Ins. Co., 437 U.S. 655, 662–663 (1978), where a district court persistently and without reason refuses to adjudicate a case properly before it, the court of appeals may issue the writ in order that it may exercise the jurisdiction of review given by law.

United States v. Scully, No. 17-50223, 2018 U.S. App. LEXIS 3420 (5th Cir. Feb. 14, 2018) (designated for publication)

        Under Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 619–621 (1989), a defendant is not entitled to use tainted funds forfeited after conviction to pay for attorney’s fees because a defendant has no Sixth Amendment right to spend another per­son’s money for services rendered by an attorney even if those funds are the only way that that defendant will be able to retain the attorney of his choice. Under 21 U.S.C. § 853(c) (“relation-back” doctrine), the Government has a property interest forfeited assets from the time of the criminal act giving rise to forfeiture. The Government’s interest in recovering all forfeitable assets overrides any Sixth Amendment right criminal defendants may have to use forfeitable assets for attorney’s fees.

        Under Luis v. United States, 136 S.Ct. 1083, 1087 (2016), the Sixth Amendment bars the Government from restraining a defendant’s untainted assets before trial. If a defendant owns the assets and the Government’s interest in them is entirely contingent on a conviction at some later time, the defendant’s interest in the untainted property and Sixth Amendment right to assistance of counsel before trial outweighed the Government’s contingent interest in securing its punishment of choice and the alleged victims’ interest in securing restitution.

United States v. Stanford, No. 17-30285, 2018 U.S. App. LEXIS 3897 (5th Cir. Feb. 19, 2018)

        Commentary in the U.S.S.G. Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.

        Per U.S.S.G. App. A, the steps for determining the applicable guideline begins with reference to the count of conviction and the Statutory Index, which provides the applicable offense U.S.S.G. for various criminal statutes. Per U.S.S.G. 1B1.2(a) & cmt. n.1, some statutes have only one applicable guideline in the Statutory Index, while other statutes have more than one—where the U.S.S.G. requires courts to determine which of the referenced guideline sections is most appropriate for the offense conduct charged in the count of which the defendant was convicted.

        Allegations in the indictment serve as the critical piece to the determination of whether the alleged offense resembles one guideline over the other. Courts may also consider the potential U.S.S.G., statute of conviction, and the conduct that the statute was designed to punish.

        U.S.S.G. § 2X1.1 is one of the guidelines in the Statutory Index for 18 U.S.C. § 371.

        Under 21 U.S.C. § 331(a), it is illegal to introduce into interstate commerce any drug that is adulterated or misbranded. Under 21 U.S.C. § 333(a)(2), the sentence is not more than three years for violations of 21 U.S.C. § 331 with the intent to defraud or mislead.

        The Statutory Index for 21 U.S.C. § 333(a)(2) addressing punishment for violations of 21 U.S.C. § 331 with an intent to defraud or mislead lists both U.S.S.G. § 2B1.1 and U.S.S.G. § 2N2.1 as applicable U.S.S.G. The Statutory Index for 21 U.S.C. § 331(a) lists only U.S.S.G. § 2N2.1.

        The commentary to U.S.S.G. § 2N2.1 shows that it is appropriate for regulatory offenses that involved knowing or reckless conduct.

        The commentary to U.S.S.G. § 2B1.1 shows that it is ap­pro­pri­ate for offenses involving theft, stolen property, property dam­age or destruction, fraud, forgery, and counterfeiting.

        U.S.S.G. § 2N2.1 provides a base offense level, one specific offense characteristic, and two potential cross-references: where the offense involves fraud and where the offense was committed in furtherance of or to conceal another offense.

        U.S.S.G. § 2B1.1 deals with a wide variety of fraudulent behavior and provides four cross-references, none of which have clear applicability to the offense conduct charged in Count 2.

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Error is plain only if it is so clear or obvious that the trial judge and prosecutor were derelict in countenancing it even absent the defendant’s timely assistance in detecting it. Establishing plain error requires a showing that the error was clear under the law in place at the time of trial. Plain error is not usually found if the court has not previously addressed the issue.

        When a court is asked to interpret the U.S.S.G., rules of statutory interpretation are utilized, and courts use a plain-meaning approach. Under King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991), if a statute is unambiguous and does not lead to an absurd result, the court’s inquiry begins and ends with the plain meaning of that language. A statute is to be read in its entirety since the meaning of statutory language depends on context.

        Under U.S.S.G. § 1B1.1 cmt. n.1(H), “offense” means the offense of conviction and relevant conduct under U.S.S.G. § 1B1.3.

        Under the law-of-the-case doctrine, or “waiver doctrine,” an issue raised after a remand that could have been but was not raised during the original appeal cannot be addressed when a case is remanded for resentencing. District courts are not permitted to provide parties a second bite at the apple by holding a de novo resentencing as a matter of course. District courts are confined to addressing discrete issues directed by the court or those that arise out of or become newly relevant because of the appeal.

Unites States v. Wallace, Nos. 16-40701 & 16-40702, 2018 U.S. App. LEXIS 7005 (5th Cir. March 20, 2018) (op. on reh.) (designated for publication) (Dennis, J., dissenting), 2018 U.S. App. LEXIS 7262

Editor’s Note: 7 of the 15 judges voted for an en banc rehearing. The dissenting opinion is summarized below the panel’s opinion.

        (1) Suppression is not a remedy for a violation of either the federal pen-trap statute or the Texas Code of Criminal Procedure. Where Congress has both established a right and provided exclusive remedies for its violation, a court encroaches upon the prerogatives of Congress were it to authorize a remedy not provided for by the statute. Unlike the wiretap statute that provides for an exclusionary remedy when the statutory requirements are not met, the pen-trap statute provides only for fines and imprisonment for knowing violations. Thus, Congress determined that the benefits of an exclusionary rule do not outweigh its substantial social costs.

        (2) There is little distinction between historical and prospective cell-site data because both involve the disclosure of the locations of cell-site towers being accessed by a cell phone as recorded in past or future records captured, stored, recorded, and maintained by the phone companies in the ordinary course of business, and this information is not within the actual or constructive possession of a defendant. Thus, the government obtaining historical or prospective cell-site data does not constitute a “search.”

        (3) Under 18 U.S.C. § 2703(c), the government may obtain a court order requiring a cellular telephone company to turn over records or other information related to its customers. Nothing in the text of the statute suggests that “other information” does not encompass prospective cell site data.

Dissenting opinion

  • The dissenting opinions of Judges Dennis and Graves disagreed with this reasoning, and again, 7 of the 15 judges voted for an en banc rehearing. Dennis, J. dissenting, 2018 U.S. App. LEXIS 7262.
  • The dissent rejected the good-faith exception under Leon and Krull.
  • As the dissent correctly points out, in Leon, the SCOTUS held that evidence obtained by officers acting in objectively reasonable reliance on a search warrant later held not to be supported by probable cause need not be excluded from a criminal prosecution.
  • And in Krull, the SCOTUS found that the rationale underlying Leon applied equally to evidence obtained by officers acting without a warrant but in objectively reasonable reliance on an administrative-inspection statute later held to be unconstitutional. Krull, 480 U.S. at 350–351.
  • The reasoning in Krull is that excluding evidence obtained under a statutorily authorized search would penalize the “officer for the [legislature’s] error, rather than his own,” and therefore could not “logically contribute to the deterrence of Fourth Amendment violations” (quoting Leon, 468 U.S. at 921).
  • Krull thus holds that law enforcement may defer to the constitutional judgment of the legislature if that judgment is expressed in clear statutory authorization for the officer’s actions.
  • As the dissent also correctly points out, Krull cannot apply because “there is no similar legislative judgment as to the constitutionality of the officers’ actions in this case.”
  • In Krull, the statute authorized warrantless administrative inspections of a regulated business. Krull, 480 U.S. at 360.
  • There was no evidence suggesting that legislatures have enacted a significant number of statutes permitting warrantless administrative searches violative of the Fourth Amendment.
  • Rather, legislatures have confined their efforts to authorizing administrative searches of specific categories of businesses that require regulation, and the resulting statutes usually have been held to be constitutional. Krull, 480 U.S. at 351.
  • This showed a “clear pattern of legislative action and consistent court approval of such action.” And because of this, the officer’s reliance on the administrative-search statute was objectively reasonable.
  • But in Wallace, there was no “legislative judgment or dialogue between the courts and the legislature as to the constitutionality of the real-time GPS surveillance at issue.”
  • When Congress passed the SCA in 1986, there was no E911 re­quirement, and “GPS was still experimental military technology that would not begin to be in widespread civilian use until over a decade later.”
  • The dissent also pointed out that five members of the current SCOTUS have expressed “grave doubt as to the constitutionality of the kind of warrantless, real-time GPS tracking at issue in this case,” citing United States v. Jones, 565 U.S. 400, 415–418 (2012) (Sotomayor, J. concurring); (Alito, J. concurring in the judgment) (expressing concern that the majority’s trespass-based reasoning was under-inclusive because it would provide no protection if “the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car.”).
  • Finally, the dissent pointed out that unlike the statute at issue in Krull, which reasonably appeared to authorize warrantless administrative searches, the SCA does not reasonably appear to authorize real-time GPS tracking.
  • While the statute in Krull required parties licensed to sell vehicles or vehicle parts to permit officials to inspect records pertaining to the purchase and sale of vehicles and parts and to allow “examination of the premises of the licensee’s established place of business for the purpose of determining the accuracy of required records,” the SCA provides that, in certain enumerated circumstances, “[a] governmental entity may require a provider of electronic communication service . . . to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications).” 18 U.S.C. § 2703(c)(1) (2016).
  • The panel’s conclusion that “or other information” could include real-time GPS coordinates and claims that nothing else in the text of the SCA precludes such a reading ignores plain language in the SCA suggesting that real-time collection of GPS tracking information is not authorized by this statute.

Texas Court of Criminal Appeals

Guthrie-Nail v. State, No. PD-0441-17, 2018 Tex. Crim. App. LEXIS 117 (Tex. Crim. App. March 28, 2018) (designated for publication)

        Appellate jurisdiction is invoked when the appellant “timely” files a notice of appeal against an appealable order, which is a signed, written judgment.

        A court of appeals cannot obtain jurisdiction on a docket entry and oral ratification of a preexisting judgment.

Safian v. State, Nos. PD-0323-16, PD-0324-16, & PD-0325-16, 2018 Tex. Crim. App. LEXIS 115 (Tex. Crim. App. March 21, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 37.09, Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007), and Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011), an offense is a lesser-included offense of another if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. This is a question of law and does not depend on the evidence. A court must compare the elements of the greater offense as pled to the statutory elements of the potential lesser-included offense in the abstract.

        When there are allegations in the indictment that are not identical to the elements of the lesser offense, a court should ap­ply the functional-equivalence test to determine whether elements of the lesser offense are functionally the same or less than those required to prove the charged offense. An element of the lesser-included offense is functionally equivalent to an allegation in the charged greater offense if the statutory elements of the lesser offense can be deduced from the elements and descriptive averments in the indictment for the charged greater offense.

        If it is determined that an offense is a lesser-included offense of another, to determine whether a defendant is entitled to a jury instruction on the lesser-included offense, there must have been some evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense.

        Under the functional equivalence test, deadly conduct is a lesser-included offense of aggravated assault by threat if it is alleged that the defendant used or exhibited a motor vehicle as a deadly weapon.

Reynolds v. State, No. PD-1452-16, 2018 Tex. Crim. App. LEXIS 119 (Tex. Crim. App. March 28, 2018) (designated for publication)

Editor’s Note:

  • In Reynolds, a CPS supervisor and CPS investigator (Rebecca Ross) were merely doing their jobs trying to help a drug-addicted 15-year-old girl who was peddling drugs and living with adult males.
  • They were falsely charged of Official Oppression on a bogus al­legation that they violated the girl’s “Fourth Amendment rights” by taking away her phone, which she was using to communicate with the adult males who were feeding her drugs, using her to peddle drugs, and sexually abusing her.
  • Ross’s case may be found at Ross v. State, No. PD-0001-17, (March 28, 2018) (Tex. Crim. App. March 28, 2018) (designated for publication). These were straight-up legal sufficiency cases.
  • There is little by way of law in these cases other than the Jackson v. Virginia legal sufficiency standard. Rather than provide a summary, if you are interested in learning more about what happen, just read the opinions.
  • The TCCA summarized the facts well. There are more facts that may be found in my brief, which can be viewed in a link on the online version.

* The TCCA not only got these cases right, they hit it out of the park.

Texas Courts of Appeals

State v. Binkley, No. 02-16-00381-CR, 2018 Tex. App. LEXIS 1119 (Tex. App. Fort Worth Feb. 8, 2018) (designated for publication)

        Under State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013), a trial court’s ruling on an MTS is reviewed under a bifurcated standard: provided the record supports the trial court’s determinations of historical facts, and mixed questions of law and fact that rely on credibility, those determinations almost total deference. The trial court’s application of law to the facts are reviewed de novo.

        Under State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008), when the record is silent on the reasons for the trial court’s ruling, or when no FFCL are entered and neither party timely requested them from the trial court, a reviewing court: (1) implies the necessary fact findings that would support the trial court’s ruling if the evidence viewed in the light most favorable to the trial court’s ruling, supports those findings; and (2) reviews the trial court’s legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling.

        Under State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007), a reviewing court must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling.

        Under Terry v. Ohio, 392 U.S. 1, 21 (1968), and Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000), a detention may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Reasonable suspicion exists when based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts would lead him to reasonably conclude that a person is, has been, or soon will be engaged in criminal activity. This is an objective standard that disregards subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists.

        Under Alabama v. White, 496 U.S. 325, 330 (1990), reasonable suspicion is a lower level of suspicion than probable cause, and probable cause falls far short of a preponderance of the evidence but is dependent on both the content of the information known to police and its level of reliability.

        Under Tex. Transp. Code §§ 601.051 & 601.191, drivers must maintain proof of responsibility for their vehicles, and operating a vehicle for which there’s no financial responsibility is a misdemeanor punishable by a fine.

Facts:

  • The officer was leaving the Horseshoe Bend area when he noticed “a vehicle driving a little slow.”
  • He entered the license plate number into his in-car database and found out that the car was registered to Binkley.
  • The database showed “unconfirmed” regarding the liability insurance.
  • He did not remember whether the database reported any details other than “unconfirmed.”
  • He stopped Binkley’s vehicle “just to verify the actual insurance, if there was insurance on the vehicle.”
  • There was no basis for the stop other than the return from the database.
  • There is significantly more detail in the opinion about the reliability—or lack thereof—about the database.
  • Granting of the MTS is affirmed.

Cheek v. State, No. 14-16-00787-CR, 2018 Tex. App. LEXIS 1659 (Tex. App. Houston [14th Dist.] March 6, 2018) (designated for publication)

        Tex. Transp. Code § 547.302 provides in relevant part:

   (a)  A vehicle shall display each lighted lamp and illuminating device required by this chapter to be on the vehicle: (1) at nighttime; and (2) when light is insufficient or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible (1,000 feet ahead).

   (c)  At least one lighted lamp shall be displayed on each side of the front of a motor vehicle.

   (d)  Not more than four of the following may be lighted at one time on the front of a motor vehicle: (1) a headlamp required by this chapter; or (2) a lamp, including an auxiliary lamp or spotlamp, that projects a beam with an intensity brighter than 300 candlepower.

        Tex. Transp. Code § 547.327 provides that a motor vehicle may be equipped with not more than two spot lamps.

        Tex. Transp. Code § 547.328 provides that a motor vehicle may be equipped with not more than two fog lamps.

        Tex. Transp. Code §§ 547.330 & 547.331 permit auxiliary lamps.

Editor’s note: The appellant’s mistake was that his truck had two headlamps and four auxiliary headlamps.

        Thus, when it is daytime, but the weather is so bad (i.e., heavy rain or fog) that you cannot clearly see at least 1,000 feet (about 1/5 of a mile) in front of you, turn your headlights on so that you do not give a cop “free reasonable suspicion” to pull you over. The better (and safer) practice is to always keep your headlights on during rainy or inclement weather.

1 candlepower = 12.57 lumens, so 300 candlepower
= 3,771 lumens

Thus, the setup depicted in the picture below is allowed since only the two headlights and the two PIAA running lights “pro­ject a beam with an intensity brighter than 300 candlepower.” And, there are only two fog lamps and two auxiliary lamps (the PIAA running lights). Additional lamps with an intensity brighter than 300 candlepower attached and illuminated at the same time would be a violation of Tex. Transp. Code § 547.302. The foglamps that are on the far lower right and left do not count towards the four-lamp limit because they project only 1,500 lumens, or about 120 candlepower. Foglamps generally project 1,000–2,000 lumens, or about 80–160 candlepower.

Nondisclosures & Expunctions

Nondisclosures

Deferred Adjudication Nondisclosure

Section 411 of the Government Code was created to allow an “Order for Nondisclosure” in certain cases when a deferred adjudication has been completed.

Misdemeanor cases

Beginning September 1, 2017, for discharges on or after that date that are not under chapter 20, 21, 22, 25, 42, 43, 46, or 71, the Court shall issue an order of nondisclosure at the time the court discharges and enters the dismissal under Article 42A.111 C.C.P., if the court determines that the person satisfies § 411.074 Government Code and there is no affirmative finding that it is not in the best interest of justice that the defendant receives an automatic order of nondisclosure. The person shall present the court with the evidence necessary to establish their eligibility and pay $28 fee to the clerk.

If the discharge and dismissal occurred before September 1, 2017, then person must comply with § 411.0725 of the Government Code, requiring notice to the state and the opportunity for a hearing, to determine if the issuance of the order is in the best interest of justice and whether the petitioner satisfies the requirements of § 411.074, Government Code. Except for the limitations in § 411.074, a person may petition the Court regardless of whether the person has been previously convicted of or placed on deferred adjudication for another offense.

§ 411.074 Government Code requirements:

To be eligible for an order for nondisclosure, generally, the petition must show that during the period of community supervision, the period after the pronouncement of sentence and during any waiting period, the person was not convicted of or placed on deferred adjudication for any offense other than a traffic offense, punishable by fine only.

A person is not entitled to an Order of Nondisclosure if they have been previously convicted or placed on deferred adjudication for any of the following:

1.   Any offense requiring registration as a sex offender;

2.   Murder, Capital Murder, Trafficking of Persons, Continuous Trafficking of Persons, Injury to a child, elderly or disabled, endangering a child, violation of a court order or conditions of bond, or repeat violation of certain court orders, stalking or aggravated kidnapping; or

3.   Any other offense involving family violence. Because it was not clear if this applied to a 1st deferred adjudication for family violence, in 2007 the legislature clarified that a person is ineligible under these categories if the person was placed on the deferred adjudication for, or has been previously convicted of, any of these offenses;

4.   If the Court makes an affirmative finding that the offense for which the request is made involved family violence, as defined by Section 71.004, Family Code.

§ 411.0725 now provides that if the person satisfies, § 411.074, they may apply on the 5th anniversary of the discharge if the offense for which they received deferred adjudication was a felony.

New categories eligible for Nondisclosures

§ 411.0727 allows a person who successfully completes a veteran’s treatment court program to apply, if they meet certain requirements.

§ 411.0728 allows certain victims of trafficking who were placed on community supervision for a variety of offenses to apply if they meet the requirements of § 411.074.

§ 411.073 allows a person to petition for nondisclosure if the person was found guilty and placed on commu­nity supervision for certain misdemeanors. They must show compliance with § 411.074 and no prior convictions or deferred adjudications. The same two-year waiting period applies to offenses under chapter 20, 21, 22, 25, 42, 43, or 46, Penal Code. Ef­fec­tive September 1, 2017, this law was amended to apply to all cases before on or after September 1, 2017.

§ 411.0735 allows a person convicted of a misdemeanor who completes their sentence, including confinement, and not eligible under § 411.073, to apply for nondisclosure if they satisfy § 411.074 and have never been convicted or placed on deferred for an­other offense, the offense was not violent or sexual in nature, and two years have elapse since completion of the sentence. Effective September 1, 2017, this law was amended to apply to all cases before on or after September 1, 2017.

DWI cases

Effective 9/1/2017, certain first-offense DWI cases are eligible for nondisclosure orders. Convictions under § 49.04 Penal Code, other than those punishable under (d), which involves an alcohol concentration of 0.15 or higher, are eligible, if they were placed on community supervision under Chapter 42A, CCP. The petitioner must have completed community supervision and satisfied the requirements of Section 411.074 Government Code—and they must not have been previously convicted of or placed on deferred adjudication community supervision for another offense other than traffic.

After notice to the state, the court shall issue the order if it determines that it is in the best interest of justice. The court may not issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in a vehicle operated by the person seeking the order. The person may petition the court only after two years from the completion of community supervision if the person successfully complied with a condition that for a period of not less than six months restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device. If there was no interlock requirement, the person must wait until five years after the completion of the community supervision. See §411.0731, Government Code.

§411.0736 Government Code applies to first-offense DWI cases under § 49.04, Penal Code, that are not shown to have an alcohol concentration of 0.15 or higher under § 49.04(d) Penal Code and that do not qualify under § 411.0731 for an order of nondisclosure. If a person completes their sentence, including a term of confinement, payment of all fines, costs, and restitution, they may petition the court if they meet the requirements of § 411.074—and they have never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense.

After notice to the state, and a determination that it is in the best interest of justice, the court shall issue the order. The court cannot issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in the vehicle operated by the petitioner. The person may petition the court only after three years from the completion of the sentence if the sentence included at least six months of restriction the person’s operation of a motor vehicle to a vehicle equipped with an interlock device. Otherwise the person must wait five years from the date of completion of the sentence, if there was no interlock requirement.

Procedure

The person shall petition the court that placed the defendant on deferred adjudication by paying to the clerk of the court the fee of $28. When an order is issued, the clerk of the court shall send a copy of the order by certified mail, to the Crime Service of the Department of Public Safety. They shall send a copy to all law enforcement agencies, courts, prosecuting attorneys, or other entities and to the central federal depositories, that there is reason to believe have criminal history record information that is subject of the order.

Information is not subject to a public records request if an order for nondisclosure has been issued. A person who has obtained an order for nondisclosure of the deferred adjudication may deny the occurrence of the arrest and prosecution to which the information relates unless it is being used against the person in a subsequent criminal proceeding.

Civil Penalties

A private entity that collects and compiles criminal history information must comply with the order for nondisclosure. A district court may issue a warning, and after the first warning, the private entity is liable to the state for a civil penalty not to exceed $1,000 for each subsequent violation. Attorney’s fees are recoverable.

Changes to the law apply to deferred adjudication regardless of whether the deferred adjudication is entered before, on, or after the effective date of this act. Additional penalties for private providers were added in the 2007 legislation, including requiring the Department of Public Safety to refuse to disseminate information to a provider who is not in compliance.

Expunctions

What Can Be Expunged?

Chapter 55 of the Code of Criminal Procedure

Article 55.01(a) of the Code of Criminal Procedure states in relation to misdemeanors that “[a] person who has been arrested for commission of a misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1)   the person is tried for the offense for which the person was arrested and is:

(A)  acquitted by the trial court, except as provided by sub­section (c) of this section; or

(B)  convicted and subsequently pardoned; or otherwise granted relief on the basis of actual innocence; or

(2)   the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pend­ing and there was no court-ordered community supervision under chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:

(A)  regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense or charging the person with the commission of any felony arising out of the same transaction for which the person was arrested:

(i)   has not been presented against the person and:

(a) at least 180 days has elapsed from the date of the arrest for a Class C, and there was no felony charge;

(b) at least one year has elapsed from the date of arrest for a Class B or A and there was no felony charge;

(c)  at least three years has elapsed from the date of arrest for a felony; or

(d) the attorney representing the state certifies that the files are not needed for use in any criminal investigation; or

(ii)  if presented, was dismissed or quashed, and the court find it was dismissed or quashed because:

(a) The person completed a veteran’s treatment pro­gram;

(b) The person completed a pretrial intervention program;

(c)  The presentment had been made because of mistake, false, information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense;

(d) The indictment or information was void; or

(B)  the statute of limitation has expired.

(a-1) a person may not expunge records from an arrest for a warrant issued under Article 42A.751(b) [Motion to revoke community supervision];

(a-2) a person may not expunge records under Subsection (a)(2)(A)(i)(a), (b), or (c) or subsection (a)(2)(B), if the person intentionally or knowingly absconds from the jurisdiction after being released,

The easiest case to expunge all the records of a misdemeanor charge is when it results in a dismissal and the statute of limitations of two years has expired. If a motion to quash is granted and the prosecutor does not refile, then an expunction can be obtained, if the statute has expired. Veterans court and pretrial diversion completion allows for immediate expunction. Acquittal of the charges allows for immediate expunction as long as the state does not prove that the offense for which the person was acquitted arose out of a criminal episode, and the person was convicted of or remains subject to prosecution for at least one other offense. (Article 55.01(c)). But any other termination of the prosecution of a misdemeanor that does not result in a conviction or probation requires that the statute of limitation has expired, or that the state certifies they don’t need the records, before an expunction can be granted.

The expunction under Subsection (a)(2)(A)(i)(a), (b), or (c) only allows for partial expunction of the records, as Article 55.02 Sec. 4 (a-1) provides that law enforcement and prosecuting attorney may retain their records, if the expunction is granted under those sections.

Supreme Court Case

On June 1, 2007, the Supreme Court of Texas held in State v. Beam, 127 S.W.3d 435 (Tex.S.Ct. 2007), that a petitioner for expunction of records related to a misdemeanor arrest must wait the two-year statute of limitations.

Chapter 55 of the Code of Criminal Procedure does not apply to deferred adjudication or any type of probation or community supervision.

If a finding of not guilty is entered by the court, the jury, or on appeal, the defendant can apply for an expunction. If the charges are never filed, the arrest records can be expunged after the statute of limitations has expired. Pending cases, in which an information has been filed, can not be expunged. See also State v. Bhat, 127 S.W.3d 435 (Tex.App.—Dallas, 2004).

Deferred Adjudication Is Not Expungeable

Any type of probation, even though completed, is not expungeable. See Texas Dept. of Public Safety v. Failla, supra, and Moore v. Dallas County District Attorney’s Office, 670 S.W.2d 727 (Tex.App. 5 Dist., 1984). A felony completed deferred adjudication is not expungeable. If the trial court grants the expunction, D.P.S. or any agency has six months to file a writ of error to get the judgment set aside. See D.P.S. v. Butler, 941 S.W.2d 318 (Tex.App.—Corpus Christi, 1997).

What if the higher charge is dismissed and the defendant is found guilty of a lower charge? In a case where a felony tampering with records charge was dismissed because the defendant pled guilty to a misdemeanor tampering with records charge, the court held the defendant could not expunge the dismissed case. State v. Knight, 813 S.W.2d 210 (Tex.App.—Houston [14th Dist.] 1991). In Harris County District Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex.App.—Houston 1st, 1993), the defendant completed 180 days of deferred adjudication on a misdemeanor case. He subsequently filed a writ of habeas corpus alleging there was no jury waiver on file. The writ was granted, and the judgment set aside. The district attorney then dismissed the case. The trial court’s decision to grant the expunction was affirmed on appeal. Since the writ was granted, it restored the case to its original position prior to trial and therefore there was never any valid probation.

D.P.S. v. Aytonk, 5 S.W.3d 787(Tex.App.—San Antonio, 1999), reversed the trial court’s order granting an expunction of a Class B theft when the defendant had pled nolo contendere to the charge of theft, Class C, in the same court.

The trial court entered a conviction. The appellate court relied upon the Article 55.01 (B) and the charge, if any, has not resulted in a final conviction, and is no longer pending and there was no court ordered community supervision under Article 42.12. The court found that the record shows that Aytonk’s plea resulted in a final conviction, rendering him ineligible for expunction. Rodriquez v. State, 224 S.W.3d 783 (Tex.App.—Eastland, 2007), holds that a conviction for issuance of a bad check precludes expunction of the higher charge of theft by check that was dismissed.

Travis County District Attorney v. M.M., 354 S.W.3d 920 (Tex.App. Austin 2011), held that because the defendant pled to resisting arrest, out of the same arrest for the DWI that was dismissed and assault on a police officer that was 12:45’d into the resisting, petitioner was ineligible for an expunction of either the dismissed DWI or the felony assault. The Court held that Article 55.01 was arrest-based and because the petitioner could not prove that “there was no court-ordered community supervision for any offense.” This section of Article 55.01(a)(2) has been amended to state “the charge has not resulted in a final conviction and there was no court-ordered community supervision under chapter 42 for the offense.” Even after the statute was amended, the Court has still held that a case resolved pursuant to Section 12:45 of the Penal Code is not eligible for expunction. Collin County DA v. Fourrier, 453 S.W.3d 536 (Tex.App.—Dallas 2014).

After the statute was amended, there were a number of cases in which expunctions were denied because the individual was convicted of or placed on deferred adjudication for some offense out of the arrest. The courts make it clear that it is arrest-based, and if any charge results in a conviction or probation for any offense out of the arrest—and therefore that charge is not eligible to be expunged—then no offense is eligible for an expunction. See also Expunction of J.O., 353 S.W.3d 291 (Tex.App. El Paso 2011). Expunction must apply to all records of the arrest for the petitioner to be eligible for the expunction, even under the latest amendments to the statute. Ex Parte S.D., 457 S.W.3d 168 (Tex.App. Amarillo 2015)

Felonies

The purpose of the amendment to Article 55 was to make it easier to obtain expunctions in felony cases. A dismissal prior to indictment, as long as the statute of limitations has run, is clearly expungeable under the statute and will probably not draw an objection.

55.02 Section 4(a) provides that if the state establishes that the petitioner is still subject to conviction, and that there is reasonable cause to believe that the state may proceed against him for the offense, the court may provide in its order the law enforcement agency and the prosecuting attorney responsible for investigating the offense may retain any records and files that are necessary to the investigation. This results in a limited expunction.

Cases in Which There Is an Indictment or Information

Amendment to 55.01 Effective 9-1-01

In September 2001, Article 55.01 was amended to add the provision that if a case was indicted and dismissed or a motion to quash granted and the statute of limitations has expired, then the person can apply for an expunction without having to show the more difficult standard that the indictment was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void. The statute is so poorly worded that the Supreme Court has now ruled it applies to unindicted cases as well as misdemeanors. This was not the legislative intent. The legislative intent was to make it easier for indicted cases to be expunged.

State v. Bhat, 127 S.W.3d 435 (Tex.App. Dallas 2004), held that Article 55.01 in effect at the time required proof that the statute of limitations had expired when no indictment or information has been presented. Bhat is an assault family violence case in which no information or indictment was ever filed. It is unclear from the records whether it is a felony or a misdemeanor. The defendant’s wife testified that she had filed a nonprosecution agreement, and no charges were pending against the defendant at the time of the expunction. The Dallas Court of Appeals held that the defendant was not entitled to an expunction because the statute of limitation had not expired, under the previous statute, prior to the 2011 amendments adding Section 55.01 (a)(A)(i)(a), (b), and (c).

The following list of cases were all decided before the law changed. Each case was decided under the old version of the statute that required cases where there was an indictment or information filed to meet the extra burden of proving the presentment was made by mistake, false information, or proving a lack of probable cause at the time of the dismissal to believe the person committed the offense or proving that the indictment or information was void.

Cases where an indictment or information has been presented in which expunctions have been denied for failure to prove presented by mistake, etc. (still applicable to offenses with no statute of limitations or the statute has not expired):

Dismissed for insufficient evidence: Herron v. State, 821 S.W.2d 329 (Tex.App.—Dallas, 1991); Harris County District Attorney’s Office v. Pennington, 882 S.W.2d 529 (Tex.App.—Houston [1st Dist.], 1994)

A dismissal: Metzger v. Houston Police Dept., 846 S.W.2d 383 (Tex.App.—Houston [14the Dist.], 1992)

A dismissal because of the prosecuting witness’ request: Smith v. Millsap, 702 S.W.2d 741 (Tex.App.—San Antonio, 1985)

Motion to suppress granted: Ex parte Kilberg, 802 S.W.2d 17 (Tex.App.—El Paso, 1990); Harris County District Attorney’s Office v. MGG, 866 S.W.2d 796 (Tex.App.—Houston [14th Dist.], 1993).

A dismissal for insufficient evidence has been held to not qualify for an expunction because it does not meet the statutory requirement of “dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void.” Thus, a dismissal of a felony indictment in and of itself is not expungeable. A case where the indictment was dismissed because the child witness was found incompetent to testify was not granted an expunction and the Court of Appeals affirmed. See Metzger v. Houston Police Department, supra. In addition, the petitioner was not allowed to introduce evidence to support his contention that the case was dismissed due to “mistake, false information, or other similar reason indicating absence of probable case at the time of the dismissal.” The court only reviewed the reason given on the dismissal document and the testimony of the assistant district attorney handling the case. The suppression of evidence that results in a dismissal is not expungeable because the petitioner cannot meet the burden on showing that the dismissal was due to a lack of probable cause or false information or mistake. Specifically, the Courts have held that when evidence is excluded on procedural grounds, it is not the same as showing that the factual underpinnings to the indictment were incorrect. See In the Matter of Wilson, 932 S.W.2d 263 (Tex.App.—El Paso, 1996). This case law will still apply to cases in which there is no statute of limitations, so the only way to qualify for an expunction is to prove the presentment was made because of mistake, or other similar reason.

Wilson, supra, involved the expunction of two different convictions. The first was a heroin conviction that on appeal the Court of Criminal Appeals held the indictment was void and dismissed the case. The Court held that the petitioner met all the statutory elements and the expunction was mandatory under 55.01(a). The second conviction was appealed, and the confession was ruled inadmissible. On remand to the trial court the district attorney dismissed the case for insufficient evidence. The trial court granted the expunction for this case also and the Court of Appeals reversed, holding that the petitioner failed to prove the elements for the mandatory expunction under 55.01(a) and he did not fall within the discretionary expunction of 55.01(b).

Cases in Which an Expunction Has Been Granted Under Article 55.01 (a)(2)(B)

A no bill is expungeable. Note, again, there is a provision that if the statute of limitations has not run, the district attorney and the police can keep their records. Ex parte Aiken, 766 S.W.2d 580 (Tex.App.—Dallas, 1989).

A motion to quash based on a mistake in the presentment of the indictment, Harris County District Attorney’s Office v. Burns, 825 S.W.2d 198 (Tex.App.—Houston [14th Dist.], 1992): The trial court found that the indictment was based on the mistaken belief that the false statements—the basis of the perjury charge—were made during an official proceeding. The Court of Appeals affirmed the expunction. In Harris County District Attorney’s Office v. R.R.R., 928 S.W.2d 260 (Tex.App.—Houston, 1996), a motion to quash was granted because the previous grand jury had no-billed the defendant once he testified in front of the grand jury and presented evidence of the complainant’s mental defects. The D.A. presented the case to another grand jury without letting the defendant appear and present his exculpatory evidence. The motion to quash was granted on this ground, and then the trial court granted an expunction. The appellate court held that the case had terminated even though it was by motion to quash rather than a dismissal. The Court held that “in a case such as this, where actions indicate the defendant was wrongly arrested it would thwart legislative intent and purpose to not expunge.” This amounts to “similar reason” indicating that there was an absence of probable cause. The D.A. appealed and the appellate court affirmed, citing the facts that the first grand jury refused to indict, and after the judge granted the motion to quash the D.A. stated they would not present the case to a third grand jury. This was proof that probable cause was lacking.

Entrapment as a matter of law has been held to meet the statutory elements. In Harris County District Attorney’s Office v. Small, 920 S.W.2d 740 (Tex.App.—Houston, 1996), affirmed the trial court’s action of granting the expunction when the petitioner showed that the case was dismissed due to the actions of the police in entrapping him. The court held that there was a lack of probable cause that the defendant voluntarily possessed the cocaine. The burden of proof is much easier if the petitioner chooses to wait until the statute of limitations has expired.

The petitioner is entitled to show that the indictment was presented in error rather than it was dismissed due to insufficient evidence. The court is entitled to hear more evidence than just the assistant district attorney’s explanation for dismissal. Thomas v. State, 916 S.W.2d 540 (Tex.App.—Waco, 1995). In Thomas, the court refused to allow the petitioner to put on evidence. The Court of Appeals reversed, holding that Thomas had a right to show that the indictment was presented and dismissed because of “false allegations” made by the complainant.

Harris County District Attorney’s Office v. Hopson, 880 S.W.2d 1 (Tex.App.—Houston [1st Dist.], 1994), involved a dismissal that occurred because the complaining witness could not identify the defendant at trial. It was an indicted felony. At the expunction hearing the D.A. testified that there was probable cause to believe the defendant committed the crime but admitted that no witnesses testified to the grand jury at the presentment of the case. The D.A. further admitted that there was no medical or scientific evidence indicating the defendant had committed the crime. The district attorney’s office appealed the trial court’s order granting the expunction and argued that the appellate should be bound by the prosecutor’s statement concerning probable cause to believe the defendant committed the crime. The Court of Appeals held that they would look beyond the reason stated in the motion to dismiss. They found that there was nothing in the record about what the grand jury was told. The appellate court went on to say that if the grand jury had been told that the complainant could identify the defendant, then this was not true and the indictment was based on false information. Since there were no witnesses presented to the grand jury and there was no medical or scientific evidence, the indictment must have been based on the complainant’s ability to identify the defendant, which was not true. The expunction order was affirmed.

Ex parte Stiles, 958 S.W.2d 414 (Tex.Ct.App.—Waco, 1997), involved the dismissal of an indicted case after the D.A. discovered exculpatory information. The D.A. testified that after the dismissal, he presented the case with the new evidence to two different grand juries, and both refused to indict the petitioner. The expunction was granted and affirmed on appeal. The court of appeals held that the refusal to indict by the two subsequent grand juries proved a lack of probable cause to believe the defendant committed the crime at the time of the dismissal.

Recommendation by the State

Article 55.01(b) provides a stand-alone provision for expunction if:

(2)   the office of the attorney representing the state recommends the expunction to the court before the person is tried for the offense. This allows for a complete expunction on any type of case, if the office authorized by law to prosecute the offense for which the person was arrested recommends the expunction prior to the trial of the case. None of the other requirements of Article 55.01 must be met. There is no requirement that the statute of limitations expire, there is no requirement for a showing of presentment due to mistake. This applies whether or not an indictment or information was filed.

DPS v. Ibarra, 444 S.W.3d 735 (Tex.App.—Corpus Christi, 2014), review denied, involved a review of exactly what Article 55.01(b)(2) authorizes. In that case the defendant pled guilty to money laundering and completed two years of deferred adjudication. As a part of the plea bargain, the State recommended expunction if the law allows it under Article 55.01(b)(2) CCP. At the expunction hearing, the state again affirmed that they were recommending the expunction, though DPS filed an answer alleging Ibarra was not eligible because of the court-ordered term of community supervision. The appellate court held that the limitation in Article 55.01 that there can be no court-ordered community supervision does not apply to Ibarra’s petition. The community-supervision limitation applies only to subsection (a)(2) of the statute, and even that provides an exception for class C misdemeanors. “By its plain language, subsection (b)(2) provides for the availability of expunction when the prosecuting attorney recommends expunction to the appropriate district court before trial.” 444 S.W.3d at 739. It does not limit expunction solely to untried cases. Though the Supreme Court denied review of this case, DPS has shown a willingness to appeal these cases, so it is recommended that there be a record made of the proceedings and that DPS be noticed of hearing. DPS will most likely be picking a more favorable court of appeals to get a different outcome, to encourage the Supreme Court to make the final determination of the meaning of Article 55.01(b)(2) Code of Criminal Procedure.

What Records Are Expungeable?

All records relating to the arrest. However, corporations are not entitled to have their records of criminal cases expunged. See State v. Autumn Hills Center, Inc., 705 S.W.2d 181 (Tex.App.—Houston [14th Dist.], 1985). Even records kept by the Texas De­partment of Human Resources that relate to the arrest are expungeable. In S.P. v. Dallas County Child Welfare Unit, Inc., 577 S.W.2d 385 (Tex.App.—Eastland, 1979), the district court refused to expunge the welfare department’s records relating to the petitioner’s arrest for injury to a child even though he had been no-billed by the grand jury. On appeal, the Court of Civil Appeals held that Chapter 55.01 of the Code of Criminal Procedure provides for expunction of “all records and files relating to the arrest.” Thus, they ordered the Child Welfare Unit to expunge any reference in their records that were based on the police records and files relating to the arrest. They held that records under Section 34.02 and 34.05 of the Family Code were not eligible to be expunged.

Procedure for Filing

A verified petition must be filed with all the necessary information, including social security number, birth date, and driver’s license number. Such information is set out in Article 55.02(b) of the Code of Criminal Procedure. The exact date of the arrest and date of the alleged offense charged must be very specific. Failure to be correct can result in the Department of Public Safety sending a letter stating they have no records to return—when, in fact, they are keeping the records that were incorrectly identified. The petition and the order must contain the arrest date or else D.P.S. can appeal the order granting the expunction and have the case reversed. See Texas Dept. of Public Safety v. Moore, 51 S.W.3d 355 (Tex.App.—Tyler, 2001).

Example: In Austin, in order to obtain a dismissal in a theft by check case, one must complete a county-sponsored education course. In applying for an expunction, be sure to include the records kept at the counseling center.

Up until September 1, 1999, the petition had to be filed in the county where the arrest occurred. The statute was amended to allow the filing in the county of arrest or the county in which the prosecution occurred. D.P.S. is taking the position that this only applies to arrests after September 1, 1999. Be careful to know where the arrest occurred and where the case was filed. See Autumn Hills, supra.

Order

It must be specific as to the date of the arrest, offense, and agencies. Under the new section dealing with acquittals, the order must include a copy of the judgment of acquittal and the D.P.S. tracking number along with all the identifiers of the defendant listed in Article 55.02. If the defendant wants a copy of the order, be sure to include a sentence stating that the clerk is ordered to provide the defendant and/or his attorney a copy. It is important to obtain a certified copy because it is impossible to obtain a copy later without a court order. The defendant should check each agency in about 30 days to be sure the records have been removed or returned. Many agencies put a low priority on compliance. It is important to check. DPS v. Cooper, 2007 WL 805548 (not reported from the Ft. Worth Court of Appeals), reversed an order for expunction that failed to include the address, key identifiers, and the TRN number as required by 55.02 section 3(b). It was remand to the trial court to enter proper order.

Hearing

After the petition is filed, the hearing cannot be set for a period of 30 days. This time cannot be waived even if the county/district attorney were to agree. The Department of Public Safety can object and halt the expunction. See Texas Dept. of Public Safety v. Riley, 773 S.W.2d 756 (Tex.App.—San Antonio, 1989). In addition, the Department of Public Safety can fail to file an answer, fail to appear at the hearing, and still appeal the judgment. They can file a motion for new trial, appeal, or file a writ of error. Any appeal goes to the Court of Appeals and then to the Supreme Court. It does not go to the Court of Criminal Appeals.

Acquittals

Under the provisions for an expunction in the trial court that granted an acquittal, there is no 30-day waiting period. Article 55.02 sec. (1) states that at the request of the defendant and after notice to the state and a hearing, the trial court—if the trial court is a district court presiding over the case in which the defendant was acquitted—shall enter an order of expunction. This must be done within 30 days. Only a district court can enter an expunction, unless it was a trial of a class C in which a justice or municipal court may enter the order for expunction. This was meant to eliminate the need for a petition.

Acquittals can now be filed in municipal or justice court for any class C offense. See Article 55.01Section 2 (a-1). The expunction can be denied, if the petitioner is still subject to prosecution, or the trial court can decide to grant the expunction but limit its applicability allowing the state to maintain their records.

Article 55.02 Section 5(b) was amended to add that except in an expunction following an acquittal, the court may give the petitioner all the records and files subject to the order. Article 55.02(d) provides that the clerk shall destroy all records of a case in which an acquittal occurred and expunction was ordered by the court within 60 days of the order.

The state can apply for an expunction for the defendant, if the acquitted person consents. If the person was not represented by counsel, Article 55.02 says the state shall prepare the order of expunction for the court.

The defendant must provide the necessary information, including a copy of the judgment of acquittal. The state is entitled to notice and a hearing. The defendant is required to prepare the order with all the necessary identifiers and information required by D.P.S. The clerk is then required to send copies of the order by certified mail to each official agency designated. Bargas v. State, 164 S.W.3d 763 (Tex.App.—Corpus Christi, 2005), held that the expunction was available even though Bargas did not file it within 30 days of the acquittal.

Article 55.02 Sec. 4 (a) provides in part:

In the case of a person who is the subject of an expunction order on the basis of an acquittal, the court may provide in the expunction order that the law enforcement agency and the prosecuting attorney retain records and files if:

(1) the records and files are necessary to conduct a sub­sequent investigation and prosecution of a per­son other than the person who is the subject of the expunction order; or

(2) the state establishes that the records and files are necessary for use in:

(A)  another criminal case, including a prosecution, motion to adjudicate or revoke community supervision, parole revocation hearing, mandatory supervision revocation hearing, punishment hearing, or bond hearing; or

(B)  a civil case, including a civil suit or suit for possession of or access to a child.”

Who Can File

Article 55.02(b) says the State “shall prepare the expunction order under this section”; however, it does not make clear which section of the law it is referencing. It appears to be referring to Section 1a(a) that references a finding of actual innocence after conviction, as it states the state must notify the Department of Criminal Justice if the person is in custody.

Article 55.02 (e) say that the director of the Department of Public Safety or the director’s authorized representative may file on behalf of a person described by Subsection(a) or Subsection 2a. These sections don’t correspond with the section of Article 55.02 that would make sense for the department to be involved in. Most likely it is trying to refer to Section 1a (a), of a person who was convicted and pardoned or granted relief based on actual innocence. But this is part of the expunction law that is very muddled and unclear. Subsection 2a is the misuse of identification provisions.

In addition, Article 55.011 of the Code of Criminal Procedure allows a “close relative of a deceased person” to file for an expunction under Section 2 or 2a of Article 55.02. Section 2 references filing an expunction in the county where the petitioner was arrested or where the offense occurred, which doesn’t make sense. It was adopted after Timothy Cole was exonerated after having died in prison. It was probably meant to reference the section where a person has been found “actually innocent.” Section 2a is the misuse of identification section.

Routine Expunction

In the vast majority of cases, there are no objections or answer filed. The case then becomes similar to an uncontested divorce. Evidence should be presented and the order signed. Without the proper showing, any agency can appeal the finding, even if they did not file an objection to the expunction. Texas Dept. of Public Safety v. Wiggins, 688 S.W.2d 227 (Tex.App.—El Paso, 1985). Article 55 requires that each agency must be notified of the hearing. Failure to notify the agency of a reset date or of the original hearing will result in the order being set aside on appeal. D.P.S. v. Riley, 773 S.W.2d 756 (Tex.App.—San Antonio, 1989).

Contested Hearings

If an objection is filed, a full hearing needs to be held. Petitioner has the burden of showing compliance with the statute. If any agency appeals the order, all the records from all the different agencies can be kept. If that one agency wins, all the records are kept. The court reverses the entire case even if other agencies did not object or appeal.

It is important to present evidence at either type of hearing. Since the agency can come in at a later date and contest the ruling, there needs to be evidence that supports the petition. Wiggins, supra.

Cautionary Tales

D.P.S. can appeal an order granting an expunction even if they did not file an answer, appear at the hearing, or file a motion for new trial. They can appeal by way of a writ of error. D.P.S. v. Peck, 954 S.W.2d 108 (Tex.Ct.App. 1997), and D.P.S. v. Butler, 941 S.W.2d 318 (Tex.App.—Corpus Christi, 1997).

Defense attorney’s petition for expunction was a “governmental record” within the meaning of the statute penalizing tampering with a governmental record, and a lawyer could be charged with that crime. State v. Vasilas, 187 S.W.3d 486 (Tex. Crim.App. 2006).

Amendments by the Legislature

Article 55.01 (a) was amended to add that a person is entitled to an expunction whether they were placed under a custodial or noncustodial arrest. The changes made by this act apply to a person seeking expunction of their records regardless of whether the arrest occurred before, on, or after the effective date of this act. The effective date is 9/1/2003.

Article 55.01 (a)(2)(B) was amended to state that the person was released and the charge, if any, is no longer pending and there was no court-ordered community supervision for any offense other than a class C misdemeanor. This is effective 9/1/2003. Because this language resulted in so many denials of expunction, the Legislature amended it again in 2011 to say no court-ordered community supervision for the offense, unless the offense is a class C misdemeanor.

Under the most recent version of the statute, T.S.N. applied for an expunction of an acquittal of a felony arrest. The state showed that at the time of her felony arrest, there was a misdemeanor theft warrant outstanding, and she pled to and was sentenced on the theft case. The Court found that the conviction on the theft case should not bar her expunction of her acquittal, as this was not an offense arising out of the same criminal episode, under Article 55.01(c), which would bar the expunction. State v. T.S.N., 523 S.W.3d 171 (Tex.App.—Dallas, 2017). Review was granted on January 19, 2018.

Misuse of Identification

Article 55.01(d) specifically allows the expunction of information contained in records if the information identifying the person was falsely given by another person arrested. Article 55.02 Sec. 2a(a) was amended to make it easier for a person to remove false information about themselves from someone else’s records. The procedure is intended to allow an unrepresented person to apply for the expunction of the records with the attorney representing the state. The applicant must file a verified application stating that they did not give the person arrested consent to falsely identify himself or herself as the applicant. If the state’s attorney verifies that the information was falsely given without permission, then they are to forward a copy of the application to the district court and request the court to enter an order directing expunction based on the entitlement under Article 55.01(d).

55.02(e) now provides that the director of DPS may file a petition on behalf of someone who’s the victim of identity theft. It orders the clerk to destroy all records maintained not earlier than the 60th day after the date the order of expunction is issued or later than the first anniversary of that date unless the records or files were released under Subsection (b).

(d-1) Not later than the 30th day before the date on which the clerk destroys files or other records under Subsection (d), the clerk shall provide notice by mail, electronic mail, or facsimile transmission to the attorney representing the state in the expunction proceeding. If the attorney representing the state in the expunction proceeding objects to the destruction not later than the 20th day after receiving notice under this subsection, the clerk may not destroy the files or other records until the first anniversary of the date of the order of expunction is issued or the first business day after that date.

This act took effect on June 30, 2003. See HB 2725.

Other Statutes That Provide for Expunction

Article 45.051 of the Code of Criminal Procedure, provides for deferred disposition in class C offenses. This section applies to the Justice and Corporation courts. This includes traffic and non-traffic offenses. This statute provides upon completion of the deferred disposition, the complaint is dismissed and may be expunged under Article 55.01 of this code. Even offenses that include the operation of a motor vehicle can be deferred and upon successful completion are subject to expunction under Article 55.01.

An expunction was denied for a police officer charged with a class C misdemeanor on which he was acquitted, on the basis that the petitioner had never been “arrested” and therefore he was not entitled to an expunction. Carson v. State, 65 S.W.3d 774 (Tex.App.—Fort Worth, 2001). The Court of Appeals reversed the trial court’s refusal to grant the expunction, finding that the petitioner’s actual submission to an assertion of authority by appearing at the time and place indicated on the citation to dispute the charges against him was an “arrest.”

Article 45.053 concerning deferred disposition for chemically dependent persons also provides for expunction under Article 55.01.

Alcohol-Related Offenses

In the Alcoholic Beverage Code there is a little-noticed provision for expunctions of even convicted cases. Article 106.12 states that the person convicted of not more than one violation under this code, upon attaining the age of 21 years, may apply to the court in which he was convicted to have the conviction expunged. The application must contain the applicant’s sworn statement that he was not convicted of any violation other than the one he seeks to expunge. If the court finds the application to be true, the court shall order the records, including the sentence, expunged. The applicant is then released from all disabilities resulting from the conviction, and the conviction may not be shown or made known for any purpose. This is particularly important now that Driving with a Detectable Amount of Alcohol by a Minor is included in this code and covered by this provision. It is section 106.041. Section 106.02 covers purchases of alcohol by a minor, 106.04 prohibits consumption by a minor, 106.05 is possession of alcohol by a minor, and 106.07 is misrepresentation of age by a minor. All of these are expungeable even with a conviction.

Other Issues

1. Is there a statute of limitations during which one must apply for an expunction? Because the statute should be liberally construed, there is a good argument against applying any statute of limitation period to the expunction statute. State v. Arellano, 801 S.W.2d 128 (Tex.App.—San Antonio, 1990). Since it is a remedial statute, it should not be bound by any statute of limitations. However, some agencies have argued that the general residual statute of limitations should apply as it would apply to any civil suit. Article 16.051 of the Civil Practices and Remedies Code provides that where there is no expressed limitation period, the action must be brought within four years. One case has held that the statute of limitations does not apply to the expunction statute. “Accordingly, we hold that section 16.051 of the civil practice and remedies code does not act as a bar to the statutory remedy of expunction.” Heine v. Texas Dept. of Public Safety, 92 S.W.3d 642 (Tex.App.—Austin, 2002).

2. Can one expunge the driver’s license records on the breath test refusal or failure? Effective January 1, 1995, the statute specifically states that the court cannot expunge a suspension or a revocation of a driver’s license unless there is an “acquittal.” Acquittal is not the same thing as a dismissal.

There Won’t Be Blood

Evidence obtained from the defendant’s blood is often the lynchpin in a Texas criminal case. And since the analysis of blood is such an intensely scientific process, no wonder the State (and often the Defense) employs an expert to testify about it. But before we consider the analysis of a blood specimen, we must first consider how the specimen was collected, and by whom it was collected, to determine its admissibility. The purpose of this article is to explore the law applicable when law enforcement conducts a blood draw. More specifically, is there a difference between a blood sample obtained via the implied consent statute and one obtained via a search warrant? Further, this article will analyze some critical terms used in the controlling blood-draw statute and the case law governing their application. That is, what is a “qualified technician” and “emergency medical technician,” or EMT?

Rethinking Johnston and Who Can Draw Blood Under Chapter 724

Some argue the first thing to examine is whether a blood specimen was collected with implied consent or via a search warrant. They insist that under prevailing case law, if the suspect refused consent and a warrant is issued, the means by which the blood sample was collected is not controlled by Texas statutes. Rather, the collection is examined under a reasonableness test pursuant to the Fourth Amendment and adopted in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). See also Schmerber v. California, 384 U.S. 757 (1966). The flaw in this logic, however, is the assumption that Johnston’s reasoning was sound. When we deconstruct the opinion, we find a patchwork of conflicting ideas tenuously connected by leaps in logic, all of which lead the court to a conclusion alienated from the case law and statutes it relied upon to reach the decision.

Let’s first review the facts from Johnston. There, Ms. Johnston had been arrested for DWI and refused to provide a breath or blood specimen. As a result, Officers Stinson and Burkhart obtained a search warrant for a blood draw. Johnston at 651. Upon presenting her with the warrant, Ms. Johnston resisted. Consequently, both officers restrained her and collected the blood sample themselves. Id. at 651–652. Interestingly, one of the officers had received EMT certification, and both officers had completed a weekend training course on venipuncture. Id. Nonetheless, the trial court granted a motion to suppress the blood evidence, determining the officers were not “qualified technicians” under Section 724.017, Tex. Transp. Code. This statute outlines who may conduct blood draws. And at the time of Johnston, EMTs were not allowed to draw blood under prevailing statutes. Id. at 655. The trial court relied upon Schmerber v. California and held the blood draw violated the Fourth Amendment reasonableness standard.

By the time the Court of Criminal Appeals reviewed the case, the issue had been framed in a light far removed from Tex. Transp. Code § 724. In fact, the Court of Criminal Appeals determined that Chapter 724 did not even apply to search-warrant draws. The Court dedicated less than one page of thought to the idea and dismissed it under Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). Johnston at 660–661. Then the Court resorted to applying Schmerber. The Court held that when there was a search warrant for a blood specimen in Texas, Chapter 724 did not apply. Furthermore, the test of admissibility was whether the blood draw was reasonable under the Fourth Amendment. It finally reasoned that when two officers with minimal training restrained and drew blood from an individual at a police station and without a recording, that was reasonable under the Fourth Amendment. See, generally, Johnston. Despite the holding, the Court misread Beeman, misapplied Schmerber, and completely ignored the Texas statute designed to control law enforcement blood draws.

Regarding the statute itself, sections of Chapter 724 of the Texas Transportation Code refer to conditions that must be met if a breath or blood specimen is taken at the request or at the order of an officer. An “order” is not defined in the statute, but the term suggests that both consent and non-consent blood draws are controlled by the provisions of Chapter 724. Otherwise, if Chapter 724 was only intended to regulate voluntary blood draws, why did it also include language regulating information provided by officers before requesting specimens? Furthermore, even though it was overturned, sections of the statute also regulated mandatory blood draws obtained without consent. This suggested a legislative intent that Chapter 724 should regulate all blood draws, regardless of whether the draw was voluntary or not.

The Johnston opinion relied primarily on two other cases to reach its erroneous conclusion. First, it relied upon Beeman to conclude that Chapter 724 did not apply to cases where a search warrant was used to obtain a blood specimen. Johnston at 661. However, the Beeman holding was read too broadly by the Court. Rather, Beeman narrowly held that Section 724.013 did not absolutely prohibit the taking of a blood specimen if a person refused to provide one voluntarily. Beeman at 616. (But even this reading was questionable. Regarding separation of powers, it could be interpreted as legislating from the bench.) Additionally, the aspect of Beeman relied upon by the Johnston court also indicated that a search warrant made consent moot. In either event, none of this reasoning came close to deciding that a search warrant for blood removed the necessity that law enforcement comply with Chapter 724 before obtaining a blood sample from a suspect.

The other case Johnston erroneously relied upon was Schmer­ber v. California, 384 U.S. 757 (1966). Schmerber examined the exigent circumstances that might create an exception for the need to obtain a search warrant for blood. But again, this was a far cry from the issues the Johnston court was deciding. Schmerber involved a hospital doctor taking a blood sample from an unconscious suspect without a search warrant. Id. at 771. Significantly, this procedure has since been heavily legislated and questioned (if not outright condemned) in other cases at both national and state levels. See Missouri v. McNeely, 133 S.Ct. 1552 (2013), and State v. Villareal, 475 S.W.3d 784, 787 (Tex. Crim. App. 2014). Nevertheless, the reasonableness test of Schmerber was applied to determine whether the medical procedure of a doctor drawing a patient’s blood in a hospital was reasonable. Not surprisingly, the procedure was found to comply with Fourth Amendment standards. However, the Supreme Court also warned against the implications of blood draws conducted by the police in police stations:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of a station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Schmerber at 771–772.

In Johnston, the Court of Criminal Appeals’ reliance on Schmerber defied logic, especially since Schmerber specifically warned against the exact fact pattern in Johnston! Moreover, Johnston was made even more questionable by the application of Chapter 724 requirements in Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013), a case in which the blood draw was not voluntary (though it related to a now-defunct mandatory blood-draw statute). Consequently, defense attorneys should make sure to litigate Chapter 724 issues in any case involving blood draws, regardless of whether the suspect voluntarily submitted to the officer’s request, or whether the suspect refused and a search warranted was issued. Chapter 724 suggests it should apply in both situations, and any arguments to the contrary are unsupported and likely incorrect.

The Statute

Now that we’ve crafted a good argument why Chapter 724 applies to both voluntary blood draws and those depending upon a search warrant, let’s look at the chapter sections regulating who may draw the blood specimen. Tex. Transp. Code § 724.017(a) states in relevant part:

(a)  Only the following may take a blood specimen at the request or order of a peace officer under this chapter:

1)   A physician;
2)   A qualified technician;
3)   A registered professional nurse;
4)   A licensed vocational nurse; or
5)    A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen under Subsection (c)

Tex. Transp. Code § 724.017(a)

The correct application of this statute should not be overlooked, as a mistake can often make blood specimens inadmissible, depending upon the qualifications of the person drawing the blood. Procedurally, State v Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), decided that when the State sought to admit blood-alcohol concentration evidence at trial, as the proponent of evidence, it must fulfill all required evidentiary predicates and foundations including those of Section 724.017.

EMT Blood Draws

Courts have held that establishing the predicate of Section 724.017 was necessary before admitting evidence regarding a person’s blood-alcohol concentration offered by the State. Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist] 2003, no pet). Regarding emergency medical technicians, or EMTs, this controlling statute recently changed. Prior to the current version of Section 724.017, EMTs were prohibited from conducting blood draws admitted in criminal cases. Nevertheless, case law created exceptions where an EMT could be considered a “qualified technician” under the previous version of Section 724.017(a). Importantly, some of this case law is still relevant today when determining what a “qualified technician” is under the statute. And thankfully, the legislature clarified the issue of an EMT’s ability to draw blood when the statute was amended in September 2013, at which time they added 724.017(a)(5) and 724.017(c). Subsection 724.017(a)(5) now states an EMT may conduct a blood draw, but only if they were authorized under Subsection (c). That subsection states:

A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:

(1)  provides those services; and

(2)  employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.

(c-2)  If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must:

(1)  observe the taking of the specimen; and

(2)  immediately take possession of the specimen for purposes of establishing a chain of custody.

Tex. Transp. Code § 724.017(c) and (c-2).

In short, before an EMT is authorized to conduct a blood draw, they must: (1) be authorized by the medical director of their facility; (2) the medical director must be a licensed physician who supervises emergency medical services, and (3) the blood specimen has to be taken according to the protocol developed by said medical director for the taking of specimens at the request or order of a peace officer. Furthermore, if all these prerequisites are met, the officer must observe the collection of the specimen and immediately take possession of it. These prerequisites must be proven before such a sample is admissible. And not surprisingly, they are often overlooked by law enforcement agencies.

Qualified Technician Blood Draws

If the blood drawer does not meet one of the immediately obvious criteria of the statute (e.g., physician, registered professional nurse, or licensed vocational nurse), it is error to admit a blood sample without evidence demonstrating the individual was a “qualified technician” under Section 724.017(a). Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, pet ref’d). Essentially, a qualified technician is someone who possesses experience and training sufficient to meet the qualification threshold. When the State relies upon this subsection, however, they have to prove it—even when a phlebotomist drew the blood. Because “phlebotomist” was not listed among those individuals automatically qualified, a blood sample taken by a phlebotomist satisfied the statute only when the individual was proven to be a “qualified technician.” Torres v. State, 109 S.W.3d 602, 605 (Tex. App.—Fort Worth 2003, no pet.).

In Cavazos, the court held it was error to admit a blood sample taken by a phlebotomist employed at a hospital without evidence showing they were a qualified technician under Section 724.017(a). There, the State failed to make this showing because no one testified regarding the person’s qualifications. Furthermore, the record contained no evidence the blood was drawn by someone the hospital had determined to be qualified. Cavazos at 456. Nevertheless, phlebotomists have been held to be qualified technicians, but only after the phlebotomists, or their supervisors, testified regarding their qualifications. State v. Bingham, 921 S.W.2d 494, 495–96 (Tex. App.—Waco 1996, pet. ref’d.). See also, Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013)(analyzing whether an EMT was a qualified technician).

Defense attorneys should be wary of any discovery listing a “qualified technician” as the person who conducted a blood draw, as this is often an EMT (who is now regulated under a dif­ferent section of the statute) or an individual whose qualifications have not been established. One must look to extrinsic evidence to determine their qualifications, and case law provides guidance as to who may be a “qualified technician.” For instance, in Torres the individual who drew blood was determined to be a qualified technician after showing they had: (1) been practicing phlebotomy for 26 years; (2) were employed by the hospital specifically for phlebotomy; (3) were certified by the National Phlebotomy Association; and (4) had conducted “thousands and thousands and thousands of blood draws” throughout their career. Torres v. State, 109 S.W.3d 602, 605. In the Bingham case, the court determined someone was a qualified technician after showing they had: (1) completed four months of classes and phlebotomy training with a college, focusing primarily on anatomy and blood work; (2) they were employed as a phlebotomy technician; and (3) the Medical Technologist/Supervisor of the Hematology Lab at the hospital testified to their qualifications, which included multiple clinical rotations. State v. Bingham, 921 S.W.2d 494, 494–96. Lastly, in Krause it was proven the individual in question had been certified as an intermediate EMT and had been hired on at the hospital, where their primary duty was drawing blood and had been doing so for six years, averaging 50–100 blood draws daily. 405 S.W.3d at 84.

Looking to outside sources, it appears the closest thing to a “qualified technician,” as envisioned by the statute, is a Certified Phlebotomist. To obtain this certification,1 individuals must pass courses in Medical Terminology and Human Disease/Pathophysiology. They then complete courses entitled Phlebotomy I and Phlebotomy II. Both of these are 6 weeks long with more than 100 combined contact hours, requiring passing grades on multiple quizzes and tests and completing numerous types of blood draws during class. After completing these courses, individuals must sit for board examinations accredited by the American Society of Clinical Pathology to earn the title Certified Phlebotomist. Finally, to maintain this certification, which renews every three years, a Certified Phlebotomist must complete continuing education courses.

Anyone claiming to be a “qualified technician” under Chapter 724 of the Texas Transportation Code should be thoroughly vetted. Common issues to look for include EMTs passed off as qualified technicians. Under the latest version of the statute, EMTs must be held to the strict standards outlined and discussed above. By far, though, the most egregious misapplication of this standard is when police attempt to pass off an individual with little or no training as a qualified technician. As noted in Johnston, in the Dallas–Fort Worth area, Dr. Del Principe offered weekend training courses to law enforcement officers, who might subsequently argue they were qualified technicians. But upon a closer reading of Johnston, we see the training offered to officers and jailers was simply a 14-hour weekend course that entailed performing only 50 blood draws. There was no other medical education or training prerequisite. Johnston at 652. Comparing this training with that required of Certified Phlebotomists, it was obvious such minimal instruction was a veiled attempt by law enforcement to sidestep the responsibilities placed on them by the legislature. But as defense attorneys, it is now imperative we hold judges, law enforcement personnel, and the prosecution to those high qualification standards set by Chapter 724 of the Texas Transportation Code.

Footnote:

1. In accordance with the teaching schedule of Soni Cecil, ASPC Certified Coordinator of Health Professions, Dallas County Community College District.

May 2018 Complete Issue – PDF Download

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Features
21 | Proposed CCA Amendments to the Rules of Appellate Procedure
23 | Pictures from the 42nd Annual Tim Evans Texas Criminal Trial College – By Shreika Madison
26 | Nondisclosures & Expunctions – By Betty Blackwell
36 | There Won’t Be Blood – By Lanny Begley and Mimi Coffey

Columns
6 | President’s Message
9 | Executive Director’s Perspective
11 | Editor’s Comment
13 | Federal Corner
18 | Shout Outs

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

President’s Message: My Last Column – By David E. Moore

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It’s hard for me to imagine that my year as TCDLA president is coming to a close. In many ways it seems like it’s just been minutes . . . (underwater!!!). But seriously, I cannot tell you how much I have appreciated this opportunity of service.

Through the years, some of my predecessors have been lucky enough to have the kind of terms where the stars are aligned, and they are somehow able to skate through the calendar without any issues or drama. I will spare you the details, but this has certainly not been one of those years.

Just a few months ago, we said goodbye to our Executive Director of 16 years, Joseph Martinez. I know he will be missed, but I am confident that Melissa Schank is more than capable, and that she is extremely prepared to lead us forward in the years to come. Thank you, Melissa, for all you have done to assist me this year. We also owe a huge debt of gratitude to our entire staff at the home office for their continued excellence, particularly in this period of change.

I hesitate to single people out for praise, because there are so many folks who could and should be mentioned. I am always worried that I will omit some deserving soul. But, there are some who I am compelled to mention by name. So, damn the torpedoes . . .

I want to thank the members of my Executive Committee for their support and assistance. Mark Snodgrass, Kerri Donica, Grant Scheiner, Michael Gross, Heather Barbieri, and John Hunter Smith, the ascending officers of TCDLA, made up the bulk of the Executive Committee, and TCDLA will be in their good hands for years to come.

I also want to thank the other members of that committee. Audrey Moorehead—good luck on the bench, we need more judges like you! Sarah Roland—Sarah does so many things for TCDLA . . . CLE Course directorships, Editor for the Voice, Executive Committee member. Sarah is truly a shining star of TCDLA, and I expect that she will continue to do great things for us in the years to come.

I particularly want to thank the two past presidents who graced the Executive Committee, my dear friends Stanley Schneider and David Botsford. Your institutional knowledge, your wisdom, your support, and your guidance have been invaluable to me.

Thank you to all the TCDLA board members and TCDLEI board members who unselfishly give of yourselves for our organization. I want to thank especially the ghosts of LEI chairs past, present, and future—David Guinn, Lance Evans, and Clay Steadman.

Nicole Deborde and Reagan Wynn as co-chairs of TCDLA’s Strike Force. They dedicate untold hours to boldly stepping into the fray when our members need them most. Special kudos to them and to all our Strike Force members across the state.

To John Hunter Smith and Lance Evans and the members of their Prosecutorial Integrity Committee. To Ed Mallett and Philip Wischkaemper and the Judicial Relations Committee. To Mark Daniel for his stellar representation of us on the Texas Forensic Science Commission. Thank you!

We are so fortunate to have Michael Mowla. Michael does tremendous work on both the Significant Decisions Report and as moderator for the listserv. Thank you, Michael.

Thank you so much Allen and Shea Place for your continued efforts in both educating us about last year’s legislative session and continuing to monitor the legislature and prepare for the upcoming year. Your help is invaluable.

Thank you to our CDLP chairs, Heather Barbieri and Clay Steadman, for your tireless planning, organizing, and dedication to educating our members and lawyers around the state.

And to all our other various committee chairs and members who serve as the backbone of our organization, Thank You!

Also, thanks to all of our course directors and seminar speakers who help ensure that TCDLA continues to provide the absolute best criminal defense CLE in the nation.

Past presidents—I cannot say enough about the men and women who have served before me and who have whispered words of encouragement and offered their sage advice. I have not only been buoyed by their support; they have also set the precedent and the path for me of continued service to TCDLA after my term expires.

Thanks to my law partners, Greg Waldron and Jason Parrish, for giving me the time I needed to devote to this job. I appreciate you guys watching my six when there otherwise were not enough hours in the day.

More than anyone else, I want to thank my wife Pamela and my boys Casey, Jacob, and Micah for being so understanding and supportive when I was busy doing TCDLA “stuff.”

While I cannot say that I have appreciated the deadlines that roll around like clockwork for each month’s President’s Message, I have enjoyed the opportunity of the bully pulpit. From the beginning, it was my desire to do more in my columns than tell you how many seminars we did the previous month, or how the trains are running on time. I did not want to try to educate you on the legal issue du jour. I left that for folks way smarter than me to do so on pages deeper in the Voice. Instead, I wanted my columns to entertain you, inform a bit, and maybe (at least to a small degree) challenge, uplift, or inspire you. From Groucho, to John Adams, to Nazi Germany, to Kemo Sabe (he is just finishing his first year, doing great, made mock trial travel team and tells me he wants to be a lawyer!), to Altuve and Joltin’ Joe DiMaggio, to the Santa Claus Bandit, to Robert Louis Stephenson, to the lawyers of the Alamo, and ultimately to Reverend Kyles and Dr. King, I have enjoyed our journey together.

Let me conclude with this: I believe that our society is approaching the shoals of dangerous waters. I worry about the way that we treat our neighbors who don’t look or worship the way we do. I worry about our nation’s fixation on a perceived threat to our Second Amendment while we seemingly turn a blind eye to the constant erosions of our guarantees under the First, Fourth, Fifth, and Sixth amendments. I am dismayed by the constant assault on the Fourth Estate and the tendency to easily dismiss and label inconvenient or damaging information as fake news. And, I am concerned about the denigration of our courts and the assault on the Rule of Law.

These are troubling times, and the clouds only seem to be darkening on the horizon. I hope that I am wrong.

I am, however, encouraged that on the journey ahead, I will be sojourning with you, this great group of brothers and sisters.

I want to leave you with a couple of quotes from John F. Kennedy. He said: “Life is never easy. There is work to be done and obligations to be met—obligations to truth, to justice, and to liberty.” To that end, President Kennedy also exhorted us: “Do not pray for easy lives. Pray to be stronger men.”

There is work to be done. I will always hold you and our organization in my thoughts and prayers. I hope and trust you will do the same for me.

Executive Director’s Perspective: Making a Life – By Melissa J. Schank

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“I’ve learned that making a ‘living’ is not the same thing as ‘making a life.’”

—Maya Angelou

I am overcome with joy and excitement and cannot type fast enough to capture all my thoughts and sensations. I am humbled by the Executive Committee’s vote of confidence in me, and I am truly honored to serve TCDLA as your Executive Director. I appreciate the overwhelming amount of support and encouragement I have received the last few months from our members. I have never felt so proud, receiving calls, texts, and emails congratulating me. I am devoted to TCDLA and admire each of those whom I have had the opportunity to work and serve alongside. I will continue to do my best to maintain TCDLA as the largest—and finest—state criminal defense organization in the nation.

With our leadership under the helm of President Moore and the incoming officers, TCDLA’s future is bright indeed. In addition to the officers, we have a 92-member board, 38 committees, and a legislative team, all working furiously throughout the year to improve and maintain our position in criminal defense. I encourage each of you to visit our website if you have not been lately and see who are now our officers, board, and committee members. We are continuously looking for ways to improve TCDLA, increase our visibility, and set new goals. To that end, if you have any suggestions, please send them to me, and we will reach out to the appropriate committee or department to implement those ideas complementing our strategic plan and goals. Your amazing staff is here to assist our members with any needs or requests as well.

TCDLA is a membership organization, here to serve our members in so many ways, all specifically for criminal defense lawyers. This includes providing superb continuing education through TCDLA and CDLP and the most up-to-date legal publications. But it also includes member benefits such as the Strike Force, the ethics hotline, the Voice, representation in the legislature and various organizations, and many more listed on our website. We are effective because of the personal involvement of our members, and together with our leadership, legislative team, and staff, we will remain strong. When we speak with one voice, we are a formidable force for justice.

*  *  *

March has always been one of my busiest months. We have three large seminars we put on—the Tim Evans Texas Criminal Trial College, Mastering Scientific Evidence, and a board meeting (Anatomy of a Trial this year). All of these events take a massive amount of energy and work by the course directors, speakers, and staff. Each is truly unique, and all proved to be very successful.

This year at one of the Trial College dinners with faculty and attendees, I looked around at the group of more than 100 in attendance. The entire restaurant was servicing our group, and even with all hands on deck and advance notice, they were not prepared. I noticed several attendees become very frustrated waiting for their food or bill. But what truly amazed me was that the majority of the group utilized this time to network with other students and share what they had learned or discuss tools they used in their cases. As I walked by, a table would be asking faculty question after question. The stories and sharing were fascinating. I try to encourage all attorneys to come to the Trial College. It is an intense five-day training with attendance limited to 80. The relationships students build with the faculty are life-long. Throughout the students’ careers, they will be able to reach out to these faculty members and always receive a response. Tim Evans and Lydia Clay-Jackson definitely created an exceptional program and set the foundation. Kerri Anderson-Donica and Lance Evans have continued the tradition as deans.

With March already so busy, I try to take off the week of spring break each year to spend time with the kids. I love to travel—for work or pleasure. With the kids, it does not matter to me where we go. I like to go somewhere and wrap myself in a sci-fi book and not do much else at all. I’m told I’m very boring to be with on vacation. I want to go somewhere not Austin when the Austin City Limits Music Festival takes over town. As the kids leave one by one to go to college, I will regret not being able to take our spring-break trips. On Easter, another holiday I look forward to each year, we go to the park with family and friends, and we eat and play softball, volleyball, and kickball. Crack cascarones on each other then eat again. For me, a work-life balance is essential.

With Mother’s Day now approaching, I hope also to spend time with my mother, who lives out of state. I owe my work ethic to her and her steadfast determination. I remember her work­ing double shifts while she raised us. She was very good at saving money and prioritizing what was important. As an Asian mother, she was very hard on us at times and very direct. I remember getting so angry with her sometimes, and now I catch myself acting the same way with my kids and thinking, “I turned into my mom.” She molded me into who I am today and prepared me for what I’ve faced, both personally and professionally. She instilled in me what’s important in life: to be honest and humble and to work hard for anything I wanted. She never discouraged me in any direction I chose. She has always been open and honest and tried to share her experiences with me. Along with most young adults, I knew everything, of course, and had to learn the hard way. While it is still difficult for me to admit I am ever wrong, I find myself apologizing to my mom a lot the older I get. I would like to wish all the mothers a happy Mother’s Day and hope you get to do as much or as little as you wish!

As I travel to seminars and meetings, I look around and see we have so many generations in our workforce. We have baby boomers, Gen X, Gen Y, millennials, and then those born in the last ten years not yet labeled. I feel my youngest children lack the ability to communicate well since they are always texting. I still make them write thank-you notes—which they fuss about—but it is important to me. I try to instill in them my work ethic, and teach them the importance of their commitments and the need to be honest and humble. It scares me sometimes to think I am losing that battle.

To figure out how to successfully interact with all generations, I continuously read magazines on association trends and human resources and attend business continuing education. There don’t appear to be real boundaries where the lines are drawn. It seems that the young, Gen Y and millennials, start off with a high dependency on technology—i.e., texting and social media. Then they get into the workforce, and maybe their communication suffers because they’re not on the same page as the baby boomers or Gen Xers who are now their bosses. But in TCDLA we all work toward a common goal. The question, then, is how do we continue to all connect, grow, so that we can succeed as an association? I ask myself: Do I go above and beyond to include others who aren’t like me? Do you encourage upcoming members, offering your assistance, guidance, and support? We can do this.

Editor’s Comment: In Pursuit of Truth – By Sarah Roland

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April was National Child Abuse Prevention Month. I’ve often wondered what month is National Exoneree Recognition Month (or some other synonymous title). Make no mistake, child abuse, in any and every form, is wrong and despicable. But what happens when an innocent parent or caregiver is wrongly accused, prosecuted, and convicted? We know it happens. It especially happens in the context of child abuse when everyone’s emotions naturally tend to outweigh reason, facts, and logic. Shaken Baby Syndrome (SBS), rebranded now as “abusive head trauma” (AHT) or “non-accidental head injury” (NAHI), is perhaps one of, if not the, most difficult cases to defend. There are no winners no matter the trial verdict. A baby has died. At best, the grief process can begin.

SBS has been termed “The Next Innocence Project.” Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009). Available at: http://openscholarship.wustl.edu/law_lawreview/vol87/iss1/1. That terminology, by a former prosecutor, Tuerkheimer, is no mistake. Nor is the title of a new book on the subject matter, The Forensic Unreliability of the Shaken Baby Syndrome (2018). The book was written by a lawyer, Randy Papetti, and edited by a forensic pathologist, Dr. Chris Milroy. The book is a primer for anyone involved with or trying these types of cases. It addresses all aspects of the SBS debate.

The book isn’t so long and dense that it will just collect dust on the shelf. This book is readable and well organized. It’s manageable and understandable even for the person who hasn’t defended or researched a shaken baby (SBS) case. It also contains an appendix of diagrams and pictures that is especially helpful to understanding the relevant anatomy and pathology. For the reader unfamiliar with SBS, it would be helpful to start with the appendix for a visual understanding of the arguments to come in the book.

While it would certainly be advantageous for the reader to have a basic working knowledge of the genesis and metamorphosis of SBS before reading the book, the book does a thorough job of detailing the same. The book is divided into chapters and subchapters that make it easy to locate the precise subject matter sought. For instance, in Chapter Two, “The Origin and Rise of Shaken Baby Syndrome,” there is a subchapter which includes a summary of SBS beliefs as of 2001 and a detailed discussion of the same. Chapter Three, “The Challenges,” details the abundance of problems SBS has encountered by biomechanical engineers and forensic pathologists. SBS is necessarily intertwined with and reliant upon biomechanics since the premise involves acceleration/deceleration forces. The book explains how the biomechanical science does not, and has never, supported the premise of SBS—and how it’s without scientific basis to equate SBS forces to an unrestrained car accident or a fall from a multi-story building (as is commonly done by medical doctors in SBS cases). The problem, as Papetti notes, is this:

Pediatric doctors, however, typically have little to no training or experience in measuring the forces a human endures during particular trauma, or determining what injuries predictable will result from such trauma. There are experts in this area (p. 81) [emphasis in original].

After detailing the genesis and rise of SBS and identifying challenges to it, the book implores the judiciary to exercise greater judicial oversight on these cases. The chapter goes step-by-step through a Daubert analysis in an SBS case. As Papetti notes:

Amidst the whirling controversy, judges preside over the trials and issue the decisions, opinions, judgments, and sentences that rely on SBS testimony. Yet, to date, judges have mostly been passive participants in this controversy. They have largely just treated the issue as a battle of the experts. It is apparent that greater judicial oversight is necessary to prevent continuing injustice (p. 256–257).

Papetti is correct. If the pursuit is for the truth, everyone must do their respective part. No one should be simply a “passive participant” (an oxymoron, to be sure), and no one should be blinded by the emotion of the subject matter, hard as it may be. Papetti is equally critical of all players. Doctors must be loyal to the forensics. We, as criminal defense lawyers, must do our part in relentlessly challenging bad forensics wherever it may rear its ugly head. Prosecutors must always strive for justice above a conviction. And judges must be active gatekeepers. No one can fail in these endeavors if the pursuit is for the truth.

It is both the organization and substance of this book that make it uniquely valuable in these types of cases. I wish this book had been available for the SBS cases I have tried. It would have been infinitely helpful. The book is well documented and richly sourced. It contains footnotes for the articles relied upon by both sides of the aisle. Simply put, the source material in the book alone warrants picking up a copy.

In reading this book I was reminded of what the lead detective repeatedly told my young, unknowing client in the second SBS case I tried: “science doesn’t lie.” Indeed, it does not, and thankfully it did not in that particular case. But science can be distorted, manipulated, perverted, and corrupted. So, if the pursuit is for the truth, then reading this book is a must.

*  *  *

The forensic community lost Dr. John Plunkett, a great pioneer in the forensics of shaken baby syndrome this April. Dr. Plunkett is responsible for disproving the SBS dogma that pediatric short falls cannot cause the SBS triad or death. See John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med. Path. 1 (2001). He, too, was an advocate for the science who worked in pursuit of the truth.

Federal Corner: An Unusual Basis for a Motion for Severance—With the Usual Result – By F. R. Buck Files Jr.

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I have vivid memories of the trial of a conspiracy case that took place 40 years ago. There were seven of us sitting at the defense table representing our clients. Early on, it became obvious that we had almost as much to worry about from one of our brethren as we did from the Government.

I thought about that old case when I read the opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Jesus Hernando Angulo Mosquera, Juan Rodriguez Acosta, Arley Lopez Enciso, Efrain Bilbao Varela, ___F.3d___, 2018 WL 1545594 (11th Cir. March 30, 2018) [Panel: Circuit Judges Marcus, Martin, and Newsom. Opinion by Circuit Judge Marcus].

[A Brief Synopsis of the Facts]

This case began when a Maritime Patrol plane spotted the Hope II some 47 nautical miles north of San Blas, Panama. The ship was in an area commonly used by drug smugglers. As the plane approached, the ship changed course. The ship’s automated information system, which broadcasts information about the ship’s activities, was not active.

A radio transmission was sent to a nearby Coast Guard cutter, which intercepted the ship and boarded it. A search of the ship revealed a hidden compartment in which 1,483 kilograms of cocaine were discovered. The eight members of the crew were arrested and brought to Tampa, Florida, where each of them was indicted for possessing cocaine with the intent to distribute while aboard a vessel subject to United States jurisdiction, under 46 U.S.C. §§ 70503(a) and 70506(a), and 21 U.S.C. § 960(b)(1)(B), and for conspiracy to possess cocaine with the intent to distribute, under 46 U.S.C. §§ 70503(a) and 70506(a)–(b), and 21 U.S.C. § 960(b)(1)(B).

Four of the defendants—Ferreras-Trinidad, Tous-Calle, Crespo-Marin, and Carcedo—pled guilty. Angulo, Acosta, Lopez, and Varela opted for a jury trial. When it became known that Angulo intended to call a polygraph examiner to testify on his behalf, Lopez filed a motion for severance, which the district judge denied. During the trial and after the polygraph examiner had testified, Lopez renewed his motion to sever, with Acosta and Varela joining in the motion. Once again, the district judge denied the requested severance.

Each of the defendants was convicted and sentenced to 235 months’ imprisonment on each count and five years’ supervised release. The four defendants who had entered pleas of guilty and cooperated with the federal authorities each received a sentence of 63 months’ imprisonment and five years’ supervised release. [Yes, it pays to cooperate.]

After being convicted, each of the four defendants gave notice of appeal. On March 30, the United States Court of Appeals for the Eleventh Circuit affirmed each of their convictions, determining that the district court did not err in denying the motions for severance.

Judge Marcus’ opinion reads, in part, as follows:

[The Testimony at Trial]

. . . Crespo-Marin testified that after pleading guilty and returning to the holding area, Angulo came up to him and they had “a verbal fight.” Angulo allegedly called Crespo-Marin a traitor, which Crespo-Marin took to be a reference to his decision to plead guilty. According to Crespo-Marin, Angulo also said “that he [Angulo] was a man that demanded respect,” and then Angulo threatened him by saying “[y]ou don’t know who I am.” Another co-conspirator, Ferreras-Trinidad, testified that Angulo and Varela “threatened to kill [him] 50 times over,” observing “that [he] know[s] how [pleading guilty] is rewarded in Colombia,” and that when Ferreras-Trinidad pled he “became a rat.” A third co-conspirator, Carcedo, added that Angulo told him he had thrown away the gloves and clothing he had worn while loading the drugs on board the ship in order to dispose of any evidence against him. An unrelated prisoner, Jose Yamir Lopez-Marrero, testified that while the crew was incarcerated at Pinellas County Jail awaiting trial, Varela explained the Hope II operation to him, including that the vessel had been headed for San Andrés Island, where the crew intended to drop off the dope and then sail on to Costa Rica in order to pick up a load of gravel.

        . . . Angulo swore before the jury that he never threatened anyone, and offered an entirely different version of the “verbal fight” with Crespo-Marin. According to Angulo, Crespo-Marin had been rude to him, and Angulo simply responded, “[b]e respectful to me because I’ve always been respectful to you.” In fact, Angulo testified that it was Crespo-Marin who exclaimed that Angulo “didn’t know who he [Crespo-Marin] was.” As Angulo told it, this altercation had nothing to do with the criminal proceedings.

* * *

. . . [Angulo] swore that he did not know that there were any drugs on the vessel, had not been told anything about any drugs when he was hired or at any point thereafter, and had not been involved with the drug shipment in any way. Angulo also said that he had never before heard of the Hope II’s prior drug run. He offered that he had only done maintenance work on the ship and later cooked for the crew. He further observed that he had been in the process of obtaining a new mariner’s license to replace his expired one. Finally, Angulo testified that he had never been convicted of a crime and that he had no criminal record involving narcotics, but acknowledged that he had been detained once before in the Bahamas in 1998.

        On cross-examination, the prosecutor elicited details surrounding Angulo’s prior detention, which had involved a load of drugs found on another ship, and questioned him further about his role on the Hope II. Angulo then called as a rehabilitative witness a polygraph examiner he had hired to conduct a polygraph test in preparation for trial. The polygrapher did not testify about the substance of the examination, but did opine that Angulo had been “truthful when [he had] tested him on November 6th” [emphasis added].

[The Very Short Jury Deliberations]

The jury deliberated for only two hours before finding all four defendants guilty on both counts.

* * *

[Appellants Claim and the Court’s Response]

Acosta, Varela, and Lopez first claim that the district court abused its discretion by refusing to sever their trial from Angulo’s on the ground that Angulo’s intended introduction of polygraph testimony would prejudice them. But they have failed to show that there was any likelihood that impermissible prejudice would arise from the polygraph evidence, or that they were in fact prejudiced in any way [emphasis added].

[The Standard of Review]

The decision whether to grant a severance lies within the district court’s sound and substantial discretion. United States v. Lopez, 649 F.3d 1222, 1235–36 (11th Cir. 2011). “We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court could offer no protection.” United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005) (quotation omitted).

[Joint Trials]

“Joint trials play a vital role in the criminal justice system and serve important interests: they reduce the risk of inconsistent verdicts and the unfairness inherent in serial trials, lighten the burden on victims and witnesses, increase efficiency, and conserve scarce judicial resources.” Lopez, 649 F.3d at 1233. We have explained that “defendants who are indicted together are usually tried together.” Id. at 1234 (quotation omitted). And “[t]hat rule is even more pronounced in conspiracy cases.” Id. This rule is not ironclad. Id. Federal Rule of Criminal Procedure 14(a) explains that

[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.

[What a Defendant Must Show for the Court to Grant a Severance]

The circumstances justifying severance are “few and far between”; a defendant seeking severance “must carry the heavy burden of demonstrating that compelling prejudice would result from a joint trial.” Lopez, 649 F.3d at 1234 (quotation omitted and alteration adopted). To establish this level of prejudice, a defendant must show that “a joint trial would actually prejudice the defendant and that a severance is the only proper remedy for that prejudice—jury instructions or some other remedy short of severance will not work.” Id.; see also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (noting that limiting instructions will often cure any potential prejudice resulting from a joint trial). It is not enough that a defendant argues he may have a better result had the trials been severed. Zafiro, 506 U.S. at 540, 113 S.Ct. 933 (“[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials”).

[Four Instances Where a Severance May Be Required]

We have identified four discrete circumstances in which severance may be required: where defendants rely on mutually antagonistic defenses; where one defendant would exculpate another in a separate trial, but will not testify in a joint setting; where inculpatory evidence will be admitted against one defendant that is not admissible against another; and where a cumulative and prejudicial “spill over” may prevent the jury from sifting through the evidence to make an individualized determination of guilt as to each defendant. United States v. Chavez, 584 F.3d 1354, 1360–61 (11th Cir. 2009). The final category is limited in application, because “a court’s cautionary instructions ordinarily will mitigate the potential ‘spillover effect’ of evidence of a co-defendant’s guilt.” United States v. Kennard, 472 F.3d 851, 859 (11th Cir. 2006) [emphasis added].

[There Was No Abuse of Discretion]

The district court did not abuse its discretion when it declined to sever this trial. No antagonistic defenses, exculpatory testimony from co-defendants, or inculpatory evidence were at issue; the appellants can only argue that cumulative and prejudicial spillover warranted severance. But, for starters, our spillover precedent is generally concerned with circumstances in which “overwhelming evidence of [a co-defendant’s] guilt” might bias another defendant—not circumstances in which evidence of a co-defendant’s innocence might spill over. Lopez, 649 F.3d at 1235 [emphasis added]. In fact, as the Government points out, any spillover from the polygraph evidence suggesting Angulo’s innocence might well have helped the other defendants in this case.

[The Polygraph Evidence and the District Court’s Instruction]

Moreover, the district court made it clear that Angulo’s polygraph evidence would only be allowed under “very limited” circumstances: only if Angulo testified and his credibility was impeached could he then present evidence that he passed a polygraph test in an effort to rehabilitate his credibility. “[Testifying] [wa]s a prerequisite to the admission of [the polygraph] evidence”; a prerequisite none of the other defendants satisfied. The conditional and rehabilitative nature of the evidence in question made prejudicial spillover even less likely. We add that the trial court instructed the jury unambiguously to “consider the case of each Defendant separately and individually,” and cautioned them that if they “find a Defendant guilty of one crime, that must not affect [the] verdict for any other crime or any other Defendant.” And we have repeatedly said that “[a] jury is presumed to follow the instructions given to it by the district judge.” Ramirez, 426 F.3d at 1352; United States v. Mock, 523 F.3d 1299, 1303 (11th Cir. 2008) [emphasis added].

[The Defendants Cannot Show Prejudice That Would Merit a Reversal]

Finally, it is patently clear that Acosta, Varela, and Lopez cannot show the requisite prejudice to merit reversal. See id. (“We will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice” [quotation omitted].) Their argument is built on the possibility that the introduction of the polygraph evidence drew a distinction between Angulo and the other defendants in the minds of the jury, to their demonstrable detriment. But Angulo ultimately was convicted on both charged counts, just as the others were. On this record the defendants cannot show that the polygraph evidence helped Angulo—much less that the jury’s rejection of that evidence was likely considered in relation to, or had any deleterious effect on, their verdicts. The appellants have made no attempt to explain how Angulo’s conviction (and the jury’s concomitant rejection of his polygraph evidence) does not doom their allegation of prejudice, and so have failed to discharge their “heavy burden of demonstrating compelling prejudice.” United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007). On this record, we can discern no abuse of discretion in rejecting the severance application [emphasis added].

My Thoughts

  • When I read a case like Mosquero, I can only conclude that there is little logic or common sense in some of the de­cisions of the appellate courts in cases with severance is­sues. It would seem that a defendant would always have an unfair advantage over his co-defendants if he could call a polygraph examiner to bolster his truthfulness. Obviously, the Court could hang its opinion in Mosquero on the fact that the jury only deliberated two hours and convicted Angulo along with his co-defendants. That, unfortunately, is a hindsight analysis. Would the results in Mosquero been different if Angulo had been acquitted and the other defendants convicted? We’ll never know.
  • If you have a severance issue, please take the time to read Zafiro—and, maybe, let your client read it. There are far more motions for severance filed than there are severances granted.