Monthly archive

July 2018

July/August 2018 SDR – Voice for the Defense Vol. 47, No. 6

Voice for the Defense Volume 47, No. 6 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

Carpenter v. United States, No. 16-402, 2018 U.S. LEXIS 3844 (U.S. June 22, 2018) [Fourth Amendment and historical cell-site records]

        The Government conducts a search under the Fourth Amendment when it accesses historical cellphone records that provide a comprehensive chronicle of the user’s past movements.

        An individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI, so the location information obtained from the wireless carriers was the product of a search.

        Historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle considered in United States v. Jones, 565 U.S. 400 (2012), or the bugged container considered in United States v. Knotts, 460 U.S. 276 (1983). Unlike Jones and Knotts, a cellphone [almost a “feature of human anatomy,” Riley, 134 S.Ct. at 2484] tracks nearly exactly the movements of its owner. And while individuals regularly leave their vehicles, “they compulsively carry cellphones with them all the time,” and in fact, “a cellphone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”

        The “retrospective quality” of the data gives police access to a category of information otherwise unknowable. While in the past, attempts to reconstruct a person’s movements “were limited by a dearth of records and the frailties of recollection,” now with CSLI, the Government can “travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.” And: “[C]ritically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a certain individual, or when.”

Byrd v. United States, No. 16-1371, 2018 U.S. LEXIS 2803 (U.S. May 14, 2018)

        One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. A person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. Legitimate presence on the premises of the place searched standing alone is not enough to accord a reasonable expectation of privacy because it “creates too broad a gauge for measurement of Fourth Amendment rights.” Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

        The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his otherwise reasonable expectation of privacy.


  • In September 2014, a PA trooper pulled over a car driven by Byrd, who was the only person in the car.
  • The trooper “was suspicious of Byrd because he was driving with his hands at the ‘10 and 2’ position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.”
  • The trooper followed Byrd and soon pulled him over for a possible traffic violation.
  • The car was rented by a friend, who had given Byrd permission to drive it.
  • Byrd was not listed on the rental agreement as an authorized driver even though the agreement explicitly stated that “the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the rent­er’s permission, while on company business), or a person who appears at the time of the rental and signs an Additional Driver Form.” The agreement also stated that permitting an unauthorized driver is a violation of the rental agreement.
  • The troopers told Byrd they did not need his consent to search the car, including its trunk, where they found body armor and 49 bricks of heroin.
  • Byrd filed an MTS, which was denied by the district court and affirmed by the 3rd Cir.

The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his otherwise reasonable expectation of privacy.

  • Under Rakas v. Illinois, 439 U.S. 128, 133 (1978), a person must show that his own Fourth Amendment rights were infringed by the search and seizure and must have had a “legitimate expectation of privacy in the premises.” Expectations of privacy need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.
  • One who owns and possesses a car, like one who owns and pos­sesses a house, almost always has a reasonable expectation of privacy in it. A person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. Legitimate presence on the premises of the place searched standing alone is not enough to accord a reasonable expectation of privacy because it “creates too broad a gauge for measurement of Fourth Amendment rights.” Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
  • The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his otherwise reasonable expectation of privacy.

Collins v. Virginia, No. 16-1027, 2018 U.S. LEXIS 3210 (U.S. May 29, 2018)

        The automobile exception to the Fourth Amendment does not permit an officer, uninvited and without a warrant, to enter the curtilage of a home to search a vehicle parked within the curtilage.

        The automobile exception extends no further than the automobile.

        In South Dakota v. Opperman, 428 U.S. 364 (1976), the court explained that automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order. Thus, under the automobile exception to the search warrant requirement, officers may search an automobile without having obtained a warrant so long as they have probable cause to do so.

        Under Florida v. Jardines, 569 U.S. 1 (2013), curtilage is the area immediately surrounding and associated with the home and considered part of the home for Fourth Amendment purposes. A physical intrusion into the curtilage to gather evidence is presumptively unreasonable absent a warrant.


  • Officer McCall saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded McCall’s attempt to stop him.
  • A few weeks later, Officer Rhodes saw an orange and black mo­torcycle traveling over the speed limit, but the driver got away from him also.
  • The officers concluded that the incidents involved the same motorcyclist.
  • The officers learned that the motorcycle likely was stolen and in the possession of Collins.
  • Rhodes discovered photos on Collins’ Facebook page that featured an orange and black motorcycle parked in the driveway of a house where Collins’ girlfriend lived, and at which Collins stayed a few nights per week.
  • Rhodes drove to the home, parked on the street, and saw what appeared to be a motorcycle with an extended frame covered with a white tarp parked at the same angle and in the same location as in the Facebook photo.
  • Without a warrant, Rhodes walked toward the house, stopped to take a photo of the covered motorcycle from the sidewalk, and then walked onto the property to where the motorcycle was parked.
  • In order “to investigate further,” Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident.
  • Rhodes ran a search of the license plate and VIN, which confirmed that the motorcycle was stolen.
  • Rhodes took a photo of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.
  • When Collins returned, Rhodes walked up to the front door and knocked.
  • Collins answered, agreed to speak with Rhodes, and admitted that the motorcycle was his and that he had bought it without title.
  • Rhodes arrested Collins.
  • Collins was indicted in Virginia for receiving stolen property.
  • He filed an MTS, which was denied. The SCOTUS of Virginia affirmed.

The automobile exception to the Fourth Amendment does not permit an officer, uninvited and without a warrant, to enter the curtilage of a home to search a vehicle parked within the curtilage

  • In South Dakota v. Opperman, 428 U.S. 364 (1976), the court explained that automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order. Thus, under the automobile exception to the search warrant requirement, officers may search an automobile without having obtained a warrant so long as they have probable cause to do so.
  • Under Florida v. Jardines, 569 U.S. 1 (2013), curtilage is the area immediately surrounding and associated with the home and considered part of the home for Fourth Amendment purposes. A physical intrusion into the curtilage to gather evidence is pre­sumptively unreasonable absent a warrant.
  • Collins’ motorcycle was parked within the curtilage because the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house.
  • In physically intruding on the curtilage of the home to search the motorcycle, Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched (the motorcycle) but also invaded Collins’ Fourth Amendment interest in the curtilage of his home.
  • The automobile exception does not justify invasion of curtilage because the scope of the automobile exception extends no further than the automobile. Officers cannot enter a home or its curtilage without a warrant to access a vehicle.

Dahda v. United States, No. 17-43, 2018 U.S. LEXIS 2806 (U.S. May 14, 2018)

        Under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., federal judges may issue wiretap orders for up to 30 days (extendable) authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. The judge must find “probable cause,” and requirements under 18 U.S.C. § 2518 must be met.

        Under 18 U.S.C. § 2518(10)(a), contents of any wire or oral communication that a wiretap intercepts must be suppressed if the communication was (i) unlawfully intercepted; (ii) the order of approval is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.

        An order is “insufficient” insofar as it is “deficient” or “lacking in what is necessary or requisite.” An order may not be deficient or lacking in anything necessary or requisite but may contain defects. Not every defect results in an insufficiency.

        An extra sentence that is invalid in a wiretap order does not make the entire order insufficient on its face if removal of that sentence makes the order valid

Lagos v. United States, No. 16-1519, 2018 U.S. LEXIS 3209 (U.S. May 29, 2018)

        Under 18 U.S.C. § 3663A(b)(4), the Mandatory Victims Restitution Act of 1996, defendants convicted of a listed range of offenses must reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

        The words “investigation” and “proceedings” in the Mandatory Victims Restitution Act refer to government investigations and criminal proceedings, not private investigations and civil proceedings.

United States Court of Appeals for the Fifth Circuit

Busby v. Davis, No. 15-70008, 2018 U.S. App. LEXIS 15864 (5th Cir. June 13, 2018) (designated for publication)

        Federal courts may deny as an abuse of the writ an actual-innocence claim that a defendant is innocent of the death penalty if the: (1) claim is brought in a successive application under 28 U.S.C. § 2244, and (2) factual predicate for the claim could have been discovered previously through the exercise of due diligence. There is no basis for concluding that the federal constitution prohibits the states from similarly denying as an abuse of the writ claims of actual innocence of the death penalty first asserted in a second, successive state habeas petition.

        A federal court cannot grant habeas relief under 28 U.S.C. § 2254(d) unless the petitioner shows that the state-court decisions are: (i) contrary to or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS; or (ii) based on an unreasonable determination of the facts considering the evidence presented in state court.

        Section 2254(d) applies even where there has been a “summary denial” of habeas relief.

        Under Davila v. Davis, ineffective assistance of state habeas counsel is not sufficient cause to excuse the procedural default of a claim for ineffective assistance of direct appeal counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.

United States v. Evans, Nos. 17-20158 & 17-20159, 2018 U.S. App. LEXIS 15785 (5th Cir. June 12, 2018) (designated for publication)

        Controlled substances are classified into Schedules I through V. 21 U.S.C. § 812(a). As the schedule number decreases, the potential for abuse and the addictive properties increase. 21 U.S.C. § 812(b). Schedule I drugs like cocaine, heroin, and methamphetamine are deemed to have no medical use and cannot be legally prescribed. 21 U.S.C. § 812(b)(1); 21 C.F.R. § 1308.11. Schedule II drugs (while legal) have a high potential for abuse and may be obtained only through written prescription by a doc­tor. 21 U.S.C. §§ 812(b)(2) & 829(a).

        Sufficiency-of-the-evidence challenges are evaluated with substantial deference to the jury verdict. A conviction must be affirmed if a reasonable juror could conclude that the elements of the crime were established beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the verdict. All reasonable inferences from the evidence must be drawn to support the verdict. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilty, and the jury is free to choose among reasonable constructions of the evidence.

        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.

        For a sufficiency challenge, an error is “clear or obvious” only when the record is “devoid of evidence pointing to guilt” or “the evidence of a key element of the offense is so tenuous that a conviction would be shocking.”

        Under 18 U.S.C. § 1957 (money laundering), the government must prove: (1) property valued at more than $10,000 was derived from a specified unlawful activity, (2) the defendant’s engagement in a financial transaction with the property, and (3) the defendant’s knowledge that the property was derived from unlawful activity.

        When tainted money is mingled with untainted money in a bank account, there is no way to distinguish the tainted from the untainted because money is fungible. To deal with the commingling problem, the court uses the clean-funds-out-first rule: The defendant is deemed to first withdraw her clean funds in a commingled account before reaching into tainted funds. Where an account contains clean funds sufficient to cover a withdrawal, the Government cannot prove beyond a reasonable doubt that the withdrawal contained dirty money. If a defendant makes several withdrawals, each individually for less than the clean-fund total in the account, a withdrawal would only use clean money even though in aggregate the defendant would have had to dip into tainted funds. In this situation, the court aggregates the transactions, so the Government need only show aggregate withdrawals greater than $10,000 above the amount of clean funds in the account to prove money-laundering.

        Under 18 U.S.C. § 1341 (mail fraud), the government must prove: (1) a scheme to defraud; (2) use of the mails to execute that scheme; and (3) specific intent to defraud.

        “Scheme to defraud” means “any false or fraudulent pretenses or representations intended to deceive others to obtain something of value from the [entity] to be deceived.” The falsity must be material (must have a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed). This “natural tendency” test “is an objective one focused on whether the statement is ‘of a type capable of influencing a reasonable decision maker’” and focuses on the “intrinsic qualities” of the statement and transcends the immediate circumstances in which it is offered.

        “Intent to defraud” requires an intent to: (1) deceive and (2) cause some harm to result from the deceit. A defendant acts with the intent to defraud when he acts knowingly with the specific intent to deceive for causing pecuniary loss to another or bringing about some financial gain to himself.

        Evidentiary rulings are reviewed for abuse of discretion. If error occurred, it can be excused if harmless. If the alleged error is nonconstitutional, it is harmless if it had a “substantial and injurious effect or influence in determining the jury’s verdict.” The court asks whether the error had substantial influence on the jury considering what happened at trial. If the court is left in grave doubt, the conviction cannot stand.

        Under Fed. Rule Evid. 602, a witness’ testimony must be based on personal knowledge, which can include inferences and opinions so long as they are grounded in personal observation and experience.

        Under Fed. Rule Evid. 701, a lay witness may state his ultimate opinion provided it is based on personal perception, one that a normal person would form from those perceptions, and helpful to the jury. Such opinions must be the product of reasoning processes familiar to the average person in everyday life.

        Per the U.S. Dept. of Justice, United States Attorneys’ Manual § 9-11.151, a “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.

        Analysis for a Confrontation Clause violation is directed by five nonexclusive factors set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986): (1) the importance of the witness’ testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case.

United States v. Hernandez-Avila, No. 16-51009, 2018 U.S. App. LEXIS 15896 (5th Cir. June 13, 2018) (designated for publication)

        To determine whether a prior conviction under Tex. Penal Code § 22.011(a)(2) qualifies as a “crime of violence,” which includes “statutory rape” and “sexual abuse of a minor,” the court applies the “categorical approach,” which requires it to look to the elements of the offense enumerated by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted. The court does not consider the defendant’s conduct in committing the offense.

        Under Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017), the SCOTUS held that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.”

        A prior conviction under Tex. Penal Code § 22.011(a)(2) is not a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) because it proscribes sexual conduct with a “child” (a person younger than 17) regardless of whether the person knows the age of the child. Because Tex. Penal Code § 22.011(a)(2) criminalizes sexual intercourse with a victim under 17 rather than a victim under 16 and does so “based solely on the age of the participants,” it is categorically overbroad under Esquivel-Quintana.

Texas Court of Criminal Appeals

Bien v. State, Nos. PD-0365-16 & PD-0366-16, 2018 Tex. Crim. App. LEXIS 241 (Tex. Crim. App. June 6, 2018) (designated for publication)

        To determine whether there have been multiple punishments for the same offense, the “same elements” under Blockburger v. United States, 284 U.S. 299 (1932), is applied. Two offenses are not the same if each requires proof of a fact which the other does not. Courts look to the pleadings for the Blockburger test: If the offenses have the same elements under the cognate-pleadings approach, the judicial presumption is that the offenses are the same for double jeopardy. The presumption can be rebutted by a clearly expressed legislative intent to create two separate offenses. If two pleaded offenses have different elements under Blockburger, the judicial presumption is that the offenses are different for double-jeopardy purposes and multiple punishments may be imposed. This presumption can be rebutted by a showing that the legislature clearly intended only one punishment.

        To determine whether an offense qualifies as a lesser-included offense, the cognate-pleadings approach is used: Elements of a lesser-included offense do not have to be pleaded in the indictment if they can be deduced from the facts alleged in the indictment. The functional-equivalence concept is used in the lesser-included-offense analysis: The court examines the elements of the lesser offense and decides whether they are “functionally the same or less than those required to prove the charged offense.”

        Criminal solicitation requires the State to prove a defendant believed the conduct he was soliciting would be capital murder. The State proves criminal solicitation by proving that what a defendant believes the circumstances to be surrounding the solicited conduct, and that such conduct would be a crime under those circumstances. The State need not prove that those circumstances existed. This element of criminal solicitation is subsumed within the proof necessary to establish the intent to commit capital murder under attempted capital murder.

        When a defendant is convicted in a single criminal trial of two offenses that are considered the same for double jeopardy, under the “most serious punishment” test, the remedy is to vacate the offense that is the lesser punishment if that is what the prosecutor requests.

Ex parte Kussmaul; Ex parte Long; Ex parte Pitts; & Ex parte Sheldon, Nos. WR-28,586-09; WR-28,772-02; WR-35,508-03; & WR-84,754-01, 2018 Tex. Crim. App. LEXIS 177 (Tex. Crim. App. June 6, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 11.07 § 4(a), the applications contain sufficient specific facts establishing that: (1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States Con­sti­tution, no rational juror could have found the applicant guilty beyond a reasonable doubt.

        Tex. Code Crim. Proc. Art. 11.073 applies to relevant scientific evidence that: (1) was not available to be offered by a convicted person at the convicted person’s trial; or (2) contradicts scientific evidence relied on by the state at trial. Relief can be granted upon a threefold showing that: (i) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and (ii) the scientific evidence would be admissible under the Tex. Rule Evid. at a trial held on the date of the application; and (iii) had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. Art. 11.073 and Chapter 64 are intended to work together because Art. 11.073 affords an avenue for relief under the same standard required for a favorable Chapter 64 finding.

        In postconviction habeas corpus proceedings, the convicting court is the “original factfinder” (the trial court is responsible for gathering evidence and making fact-findings) while the TCCA is the “ultimate factfinder” (TCCA has a statutory duty to review the trial court’s FFCL to ensure that they are supported by the record and are in accordance with the law). The TCCA will defer to and accept a trial court’s FFCL when they are supported by the record. If the TCCA’s independent review of the record reveals that the trial court’s FFCL are not supported by the record, the TCCA can exercise its authority to make contrary or alternative FFCL.

        A Herrera actual innocence claim is a bare claim of innocence based solely on newly discovered evidence. An applicant claiming actual innocence is not claiming that the evidence at trial was insufficient to support the conviction. Rather, the applicant shows by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty considering the new evidence. An applicant must also prove that the evidence he relies on was not known to him at the time of trial and could not be known to him even with the exercise of due diligence. Many actual-innocence cases are based on a single piece of new evidence such as DNA or the recantation of a victim or witness, but multiple pieces of newly discovered evidence can make a meritorious case for relief. The TCCA highlights the new evidence and considers whether it persuasively establishes innocence when comparing it to the evidence establishing guilt. The applicant must make a “truly persuasive” showing of innocence, regardless of whether he pled guilty or had a jury trial. A convicting court must consider a guilty plea and make a case-by-case determination about the reliability of the newly discovered evidence.

Lee v. State, No. PD-0736-17, 2018 Tex. Crim. App. LEXIS 349 (Tex. Crim. App. June 13, 2018) (designated for publication)

        Per Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009), though requesting lesser remedies (request to disregard) is not a prerequisite to a motion for mistrial, when the movant does not request a lesser remedy, an appellate court will not reverse a judgment if the problem could have been cured by the less drastic alternative. If a curative instruction would have sufficed, the trial court did not abuse its discretion by denying a mistrial request.

Niles v. State, Nos. PD-0234-17 & PD-0235-17, 2018 Tex. Crim. App. LEXIS 350 (Tex. Crim. App. June 13, 2018) (designated for publication)

        Under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Sentencing factors like elements are facts that must be submitted to the jury and proved beyond a reasonable doubt.

        Under Blakely v. Washington, 542 U.S. 296, 303 (2004), the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant.

        Under Alleyne v. United States, 570 U.S. 99, 113 (2013), the crime and the fact triggering as mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.

        Under Washington v. Recuenco, 548 U.S. 212, 222 (2006), Apprendi error is not structural error. Unlike a jury charge that misdefines the State’s burden of proof as being less than beyond a reasonable doubt, such violations can be subject to a harm analysis.

        Structural (automatically reversible) error goes to a complete misdirection or failure to instruct on the reasonable doubt standard. Failure to instruct the jury on one element of an offense or a failure to submit a sentencing issue to the jury under Apprendi is not structural error but is subject to harm analysis.

Miller v. State, No. PD-0891-15, 2018 Tex. Crim. App. LEXIS 142 (Tex. Crim. App. May 23, 2018) (op. on reh.) (designated for publication)

        Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes, and legal propositions is not excusable, and if it prejudices a client, IATC may be found.

        The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        Under Hill v. Lockhart, 474 U.S. 52, 59 (1985), a defendant is entitled to effective assistance of counsel in the guilty-plea context.

        When a defendant receives bad advice about probation eligibility, the defendant must show a reasonable likelihood that he would have opted for a jury if his attorney had correctly advised him about his eligibility. The defendant need not demonstrate a reasonable likelihood that the jury trial he waived would have yielded a more favorable result than the TBC.

Ex parte Moore, No. WR-13,374-05, 2018 Tex. Crim. App. LEXIS 178 (Tex. Crim. App. June 6, 2018) (designated for publication) (Alcala, J. dissenting)

Editor’s Note: the TCCA did not make any specific holdings other than to find that Moore is not intellectually disabled as defined by Atkins and modern medical standards. Read this case or at least the online SDR version. The majority opinion and dissent are a combined 102 pages, so summarizing it in a few paragraphs is difficult.

Oliva v. State, No. PD-0398-17, 2018 Tex. Crim. App. LEXIS 139 (Tex. Crim. App. May 23, 2018) (designated for publication)

        The fact that the parties agreed that the existence of a prior conviction is an element of the offense is not binding on the TCCA because the TCCA is not bound by any agreement or con­cessions by the parties on an issue of law.

        Because the prior-conviction provision Tex. Penal Code § 49.09(a) is not a jurisdictional issue (as opposed to prior intoxication convictions that enhance to a felony DWI), Tex. Penal Code § 49.09(a) is a punishment issue so litigation of a prior DWI conviction should occur at the punishment stage.


  • The 3400 block of Hadley Street is a two-lane public roadway that runs east and west and has no lane markings. Homes are on both sides.
  • At about 1:00 a.m. on May 10, 2015, Houston officers Aldana and Habukiha responded to a call regarding a suspicious person on Hadley Street.
  • Within a few minutes, the officers arrived at the scene and saw a parked car.
  • The car was parallel-parked beside the street curb, perhaps in the lane of moving traffic.
  • As the officers approached the car, they noticed that the engine was running, the key was in the ignition, and its emergency lights were not activated.
  • The officers found appellant asleep, slouched, in the driver’s seat.
  • Appellant was not wearing a seatbelt, a shirt, or shoes.
  • The car’s cup holder had one open container of beer.
  • The officers tried to wake appellant, but he was unresponsive. When the officers opened the door, appellant woke up and fell out onto the street.
  • The officers detected a strong odor of alcohol in the car and on appellant’s breath.
  • Appellant slurred his speech and had glassy eyes and poor balance.
  • Appellant showed six clues on the HGN, and his breath-test results were 0.184 and 0.183 at 2:18 a.m. and 2:21 a.m.
  • The technical supervisor with the TDPS’s Breath Alcohol Testing Program testified that “using the average of .02 per standard drink,” it would take “roughly about nine drinks” for a person to reach appellant’s alcohol-concentration level.
  • Appellant was charged by information with DWI. The information contained a paragraph that alleged a prior DWI conviction.
  • During the guilt-innocence phase of trial, the State referred only to the DWI offense that occurred in May 2015 on Hadley Street.
  • The State did not attempt to prove that appellant had a prior DWI conviction.
  • The trial court’s charge to the jury did not mention the prior DWI conviction.
  • The jury convicted appellant of DWI.
  • During the punishment phase, the state introduced evidence that appellant previously had been convicted of DWI. The jury found that the appellant had a prior DWI conviction and assessed his punishment at 180 days’ in jail.
  • The trial court’s judgment shows that appellant was convicted of “DWI 2ND” and the degree of offense was labeled as a “Class A Misdemeanor.”

The court of appeals held that a prior DWI conviction is an element of Class A DWI and a fact that is legally required to convict for Class A DWI

   The Court of Appeals reached its decision per the legal-sufficiency review in which the court views all the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Appellant argued: (1) a prior DWI conviction is not a punishment enhancement for a Class B misdemeanor and is an element of Class A DWI, so it must be proven during the guilt-innocence phase; and (2) because no evidence was presented during the guilt-innocence phase of the trial that appellant had a prior DWI conviction, the evidence is legally insufficient to support appellant’s conviction.

  • The court of appeals reasoned that under Tex. Penal Code § 49.04(b), a DWI is a Class B misdemeanor, and under Tex. Penal Code § 49.09(a), a DWI is a Class A misdemeanor if it is proven that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated.
  • A punishment enhancement is a “fact” that increases the pun­ishment range to a certain range above what is ordinarily prescribed for the indicted crime. It does not change the of­fense or the degree of the offense. A defendant is entitled to writ­ten notice of a punishment-enhancement allegation, but it need not be pled in the indictment nor proven during the guilt-innocence phase of trial. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).
  • An element is a fact that is legally required for a factfinder to convict a person and must be proven beyond a reasonable doubt at the guilt-innocence phase of trial. A prior DWI convic­tion is an element of Class A DWI, and a fact that is legally required for a factfinder to convict a person of Class A DWI. If the defendant has a prior DWI conviction, the statute enhances the degree of the offense from a Class B misdemeanor DWI to a Class A misdemeanor DWI.
  • Because no evidence of appellant’s prior DWI conviction was presented to the jury during the guilt-innocence phase, the court of appeals found that the evidence was legally insufficient to sustain appellant’s conviction under § 49.09(a).

The fact that the parties agreed that the existence of a prior conviction is an element of the offense is not binding on the TCCA because the TCCA is not bound by any agreement or concessions by the parties on an issue of law.

  • An agreed outcome on a legal issue can sometimes be in both parties’ self-interests.
  • Appellant wants the prior conviction to be decreed an element so that he can prevail on his sufficiency challenge. This would benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until the punishment stage.
  • The State seeks review not because it disagrees with the result in the court of appeals but because it wishes to resolve this issue on a statewide basis, given the existence of conflicting opinions in the lower courts.

Because the prior-conviction provision Tex. Penal Code §49.09(a) is not a jurisdictional issue (as opposed to prior in­tox­i­cation convictions that enhance to a felony DWI), Tex. Penal Code §49.09(a) is a punishment issue so litigation of a prior DWI conviction should occur at the punishment stage.

  • Tex. Penal Code § 49.09(a) does not explicitly say whether the existence of a prior conviction should be litigated at the guilt stage or at punishment.
  • Although the legislature has provided that an issue that increases the penalty for a crime be tried at the punishment stage, this is not the norm for statutes prescribing punishment issues in noncapital cases. This language is absent from Tex. Penal Code § 12.42 (prescribing penalties for repeat offenders) even though it would appear to be one of the most obvious examples of a codification of punishment issues.
  • There is a statutory basis for distinguishing between a prior DWI under Tex. Penal Code § 49.09(a) that enhances to a class A misdemeanor and prior intoxication convictions that enhance to a felony DWI: Under Tex. Code Crim. Proc. Art. 36.01 when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, then the reading of the allegations involving those convictions must be delayed until the punishment stage of trial. The two-prior-conviction in Tex. Penal Code § 49.09(b) is jurisdictional because the prior convictions are necessary to establish a felony to give the district court jurisdiction. However, the one-prior-conviction provision in Tex. Penal Code § 49.09(a) is not jurisdictional because the offense remains a misdemeanor (a more serious one).
  • Four factors that weigh in favor of Tex. Penal Code § 12.42 being a punishment issue: (1) it is a prior-conviction provision, (2) it uses the preface “if it is shown on the trial of,” (3) it uses “punished for” to describe the effect of the provision, and (4) it is separated from provisions that more obviously prescribe elements of an offense.
  • Tex. Penal Code § 49.09(a) is a punishment issue so litigation of a prior DWI conviction should occur at the punishment stage.
  • The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.

Ramjattansingh v. State, No. PD-0972-17, 2018 Tex. Crim. App. LEXIS 243 (Tex. Crim. App. June 6, 2018) (designated for publication)

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        Per Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), the hypothetically correct jury charge does not necessarily have to track exactly all the charging instrument’s allegations. Only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime.

        Three categories of variance are: (1) a statutory allegation that defines the offense (not subject to materiality analysis, or if it is, is always material)—the hypothetically correct jury charge will always include the statutory allegations in the indictment; (2) a nonstatutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution (sometimes material)—hypothetically correct jury charge will sometimes include the nonstatutory allegations in the indictment and sometimes not; and (3) a nonstatutory allegation that has nothing to do with the allowable unit of prosecution (never material)—the hypothetically correct jury charge will never include the nonstatutory allegations in the indictment.

        In a sufficiency review, the TCCA tolerates variances if they are not so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.

        If a jury instruction includes the elements of the charged crime but incorrectly adds an extra, made-up element, a sufficiency challenge is still assessed against the elements of the charged crime regardless of the source of the extra element.

White v. State, No. PD-0442-17, 2018 Tex. Crim. App. LEXIS 351 (Tex. Crim. App. June 13, 2018) (designated for publication)

        Generally, if a party wants evidence admitted, that party has the burden to prove that the evidence is admissible. The proponent must identify to the trial court the basis of admissibility for the proffered evidence. The proponent’s burden is not triggered “unless and until” the opponent of the evidence raises “a specific objection” to such evidence. Once the opponent objects, the proponent bears the burden of demonstrating its admissibility by a preponderance of the evidence.

        Although the proponent of evidence generally has the burden to establish admissibility, when the defendant has filed a pretrial MTS challenging the admissibility of the evidence, the defendant has the burden to produce some evidence at the hearing on the MTS to prove that the evidence was illegally obtained. An MTS is nothing more than a specialized objection to the admissibility of that evidence.

Texas Courts of Appeals

Henderson v. State, No. 07-17-00099-CR, 2018 Tex. App. LEXIS 3966 (Tex. App. Amarillo June 1, 2018) (designated for publication)

        To determine whether the evidence is legally sufficient, the reviewing court views the evidence in the light most favorable to the verdict to determine whether a rational jury could find the defendant guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly stated in the record.

        Under Coleman v. State, 145 S.W.3d 649, 659–660 (Tex. Crim. App. 2004), to determine whether a weapon facilitated the commission of an offense, courts consider: (1) the type of fire­arm used; (2) whether the firearm was loaded; (3) whether the fire­arm was lawfully acquired; (4) the proximity of the firearm to the drugs; (5) the proximity or accessibility of the firearm to the defendant; (6) the quantity of drugs; (7) any evidence indicating a non-facilitating purpose; (8) whether the defendant was aware of the presence of the firearm; (9) whether the firearm was “employed or utilized” to acquire or retain the drugs; and (10) whether the firearm caused any injury or increased the risk of injury.

Thomas v. State, Nos. 14-17-00240-CR, 14-17-00241-CR, & 14-17-00240-CR, 2018 Tex. App. LEXIS 3849 (Tex. App. Houston [14th Dist.] May 31, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1), the parties may offer evidence as to any matter the court deems relevant to sentencing. In assessing punishment, a trial judge is entitled to consider a defendant’s truthfulness as he testifies. It is both necessary and proper for a trial judge to evaluate a defendant’s credibility as manifested by his conduct at trial and testimony under oath.

        A defendant’s lack of veracity while testifying during a punishment hearing is a matter relevant to sentencing under Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1) and may be considered.

        Under McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007), lying while testifying is an extraneous bad act.

Weems v. State, No. 14-17-00443-CR, 2018 Tex. App. LEXIS 2933 (Tex. App. Houston [14th Dist.] April 26, 2018) (designated for publication)

        Under Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005), review a trial court’s decision on a motion related to DNA is bifurcated: almost total deference to the trial court’s determination of issues of historical fact and issues of application of law to fact that turn on credibility and demeanor of witnesses, and de novo other issues of application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses, and on issues of law.

        Under Blacklock v. State, 235 S.W.3d 231, 232–233 (Tex. Crim. App. 2007), the purpose of postconviction DNA testing is to provide a means through which a convicted person may es­tablish his innocence by excluding himself as the perpetrator of the offense of which he was convicted.

        Under Holberg v. State, 425 S.W.3d 282, 284 (Tex. Crim. App. 2014), and Tex. Code Crim. Proc. Art. 64.03(a), a convicting court may order forensic DNA testing only if the statutory preconditions of Chapter 64 are met, which are: (1) the court finds that: (A) the evidence (i) still exists and is in a condition making DNA testing possible; and (ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; (B) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (C) identity was or is an issue in the case; and (2) the convicted person establishes by a preponderance of the evidence that: (A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and (B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.


If I had ever been here before
I would probably know just what to do
Don’t you?

—David Crosby

History, having a way of repeating itself, blessed TCDLA’s 2018 Declaration Readings.

Channeling his heritage and the spirit of the Marquis de Lafayette—the Frenchman who famously championed the colonies in the American Revolution—Frank Chelly took TCDLA’s favorite patriotic project to a higher level on July 3.

Frank Chelly is a 51-year-old immigrant, a Frenchman who came to the United States on an exchange visitor visa in 1989. After seven years working in medical research, he decided to change directions, and enrolled in the South Texas College of Law. He was licensed to practice law in 2010.

The same year, while working in George Parnham’s Houston law office, he was among the onlookers when Robb Fickman first led a reading of the Declaration of Independence by members of the local criminal defense bar on the steps of the Harris County Courthouse.

“I had not seen anything like that. It was something odd,” Frank explained in his charming French accent. “In one sense, it was like a call to arms. I’m not a religious man, but in another sense, it was like witnessing Martin Luther nailing his demands to the door.”

Frank saw the reading as a reminder to those running the justice system inside the courthouse that they were accountable to the people, and the people were watching.

He attended a couple of subsequent Declaration readings in Houston, then wound up working for the El Paso County Public Defenders Office.

Following the elections of 2016, Frank became concerned with the direction of United States government and social policy. He had never been outspoken in political matters, even before it was considered dangerous for immigrants to speak out. He had not participated in protests or otherwise questioned government authority outside the courtroom. But activism was in Frank’s genes: His father had served as an intelligence officer in the French resistance during World War II.

Frank explained: “My dad saw first-hand the ravages of war, the despicable collaboration, and the horrific behavior of too many Frenchmen. He also witnessed the incredible courage of American soldiers. I grew up hearing about America, freedom, and the incredible debt I and all French citizens owe America. Our love for America was born out of respect because my dad was an eyewitness. He saw, personally, American soldiers fight and die in France. I cannot tell you how incredibly important that was for him, my family, and for me. I have a debt to repay to America. I always will. That may be why the reading of the Declaration of Independence is so personal and important, for it reminds me that I still have a debt to repay.”

So, just a few months ago, Frank proudly took an oath and became a citizen of the United States of America.

Meanwhile, President Donald Trump implemented his “zero tolerance” policy, which separated illegal immigrants from their children at the Mexican border, even those legally seeking asylum. The family separations began after Attorney General Jeff Sessions announced in April the government would prosecute all immigrants apprehended while crossing the southern border illegally. Children and parents were sent to separate camps across the country.

One of the child concentration camps was set up at the border town of Tornillo, just 40 miles southeast of Frank’s home in El Paso. Tornillo is a small, sunbaked agricultural community of some 1,500 souls in the middle of nowhere, with one cotton gin and no stoplights. In mid-June, large tents sprang up behind fences and tall mounds of dirt. About 20 large tents on a parched field owned by the Department of Homeland Security are home to teenaged children separated from their parents by the U.S. government.

There is a medical clinic, a reception center, and reportedly a cinema, all under canvas. Children have been seen playing soc­cer in 100-degree heat. Armed guards with body armor stand vigil around the perimeter.

Tornillo quickly became the focus of criticism of the government separation program. Beto O’Rourke, a U.S. Democratic representative for El Paso, was one of several officials who visited the facility in June to protest the policy. He said government officials blocked him from seeing the children housed at the camp.

(Under intense pressure, on June 21 President Trump backed away from his family separation policy. An estimated 2,000–3,000 children had been detained in camps scattered across the country, awaiting reunification with their parents. Despite court-imposed deadlines, by early July it appeared the reunification process would be long and difficult, perhaps impossible, even with DNA technology utilized to match parents with children.)

Frank watched news coverage of Tornillo and the family separation situation with a sense of horror. “What can I do?” he thought. Meanwhile, TCDLA listserve messages reminded him to get involved in the 2018 Declaration readings.

It was Frank’s “eureka” moment. “Let’s read the Declaration at Tornillo!”

He pitched the idea to a few co-workers at the El Paso County Public Defenders Office. He spoke to his superiors, Chief Public Defender Jaime Gandara and First Assistant Public Defender William Cox. Everyone was enthusiastic and supportive of the idea.

“Let’s do it!” they all said.

The weekend before the reading, Frank made the 45-minute drive down I-10 on a reconnaissance mission to inspect the site. He bumped into some reporters there to document camp conditions and invited them to attend the event, scheduled for the following Tuesday, July 3.

On July 2, Frank contacted TCDLA Declaration coordinator Robb Fickman, who pulled strings to make sure the Tornillo reading would be endorsed by the Association. Newly sworn TCDLA President Mark Snodgrass of Lubbock and the Executive Committee immediately gave the project their seal of approval.

“I’ll run it by the Executive Committee, but I can tell you there will be no opposition,” Snodgrass said.

Everyone at the public defenders office pitched in one way or another. Investigators handled logistics and took photographs. Others made t-shirts reading, “I Really Do Care, Don’t U?”1 Others reluctantly remained in El Paso to take care of legal business.

The reading was scheduled for the morning of July 3. As participants and spectators began showing up near the Tornillo port of entry, the children’s concentration camp was just beyond their vision, hidden by an earthen wall. But it was obvious to Frank the kids were in a bad place.

“The high-altitude desert climate of Tornillo is extremely hot and extremely dry. The sun hits you hard. If you are out there 30 minutes without a hat, you will get sunburned,” said the shaven-headed Frank. “I can’t imagine how the kids are coping with this climate. I hope they have air conditioning and things like that.”

Introductory comments were made by veteran El Paso lawyer Jim Darnell, a longtime Declaration organizer throughout far West Texas, who addressed 38 readers and another 20–30 in the audience. Those assembled included members of the El Paso private criminal defense bar, immigration attorneys, federal public defenders, and employees of Texas RioGrande Legal Aid. Most were from the El Paso Public Defenders Office: Frank’s people.2

There were no issues with the authorities, but a policeman in a patrol car hung around to observe.

Participants brought their kids. The event was covered by local television affiliate KFOX of El Paso, and El Paso Chief Public Defender Jaime Gandara was interviewed.

Following the reading, Frank addressed the crowd: “This isn’t about me, this isn’t about anybody in particular. This is about the people who are encaged over there,” as he pointed toward the kid’s concentration camp. “We are doing this for them. So, the credit is to the people who are unfortunately in there. That is the only reason we are doing this. We certainly also want to thank TCDLA, which is one of the endorsers of this reading. They have been supporting our civil rights and our freedom for a long time.”

The reading at Tornillo ended. Then, Frank and his colleagues simply headed back to the El Paso County Public Defenders Office, ready to do God’s work.

Later, an ABA Journal reporter interviewed Frank about the reading. “That was really the goal, it was to make sure that people know what’s going on,” Frank explained. “Ours was not a protest, it was just a reminder of why we do what we do as attorneys, and particularly as criminal defense attorneys. And the founding document, I think, is particularly relevant to that.”

Robb Fickman was also quoted in the ABA Journal article. “The symbolism seemed to be appropriate,” Robb said. “If the whole purpose of the Declaration was a statement in opposition to tyranny and tyrannical behavior, what better place than a children’s prison camp where the children are not accused of committing a crime themselves?”

Frank wants others to be inspired by the Tornillo story. “Do you remember when you were sworn in as a new attorney?” he asked. “Do you remember saying ‘I do solemnly swear that I will support the Constitutions of the United States, and of this State?’ I remembered that oath.  That oath has taken us all somewhere. Wherever it is, it is rarely a place where awards are given, recognitions bestowed, interviews broadcast, or feel-good stories written. One day, in July 2018, that oath took me to Tornillo. If the story is written, let it be the story of why we were there, not who was there.”

The legacy of the Tornillo Declaration reading is a continuum, it seems, perhaps starting with Lafayette, then progressing to Frank’s father’s heroism in Vichy France, then to Robb Fickman’s vision of Declaration readings everywhere each early July, and then on to Tornillo. With examples like Frank Chelly and Robb Fickman to serve as inspiration, TCDLA members across the state should imagine new ways to inspire patriotism, freedom and justice, like the seemingly innocuous simple act of reading the Declaration of Independence at a place and time that might make a difference.


1. The shirts mocked the jacket first lady Melania Trump wore during a visit to a different children’s camp in McAllen. Melania’s jacket read: “I really don’t care. Do U?”

2. Among the participants of the Tornillo Declaration of Independence reading were Claudia Aranda, Chad Bernaeyge, Gabriel Bombara, Porsha Brown, Stephanie Carneros, Corina Cervantes, Frank Chelly, William Cox, Jeep Darnell, Jim Darnell, Evylyn Espinoza, Chris Estrada, Jaime Gandara, Alejandrina Gutierrez, Heather Hall (and her two sons), Illiana Holguin, Debbie Ibaven, Jo Ann Jacinto, Yolanda Juarez, Ryan Kerr, Nicole Maesse, Tyrone Mansfield, Todd Morten, William Navidomskis (and his son), Edy Payan, Linda Perez, Alida Ramirez, Marcello Rivera, Adriana Robles, Marie Romero-Martinez, Everett Saucedo, Bernadette Segura, Brigette Silva, Evy Sotelo, Rebecca Spencer-Tavitas, Rene Vargas and Sarah Rios Vargas.

July/August 2018 Complete Issue – PDF Download



23 | Tornillo – By Chuck Lanehart
27 | Miles of Smiles This Year at Rusty Duncan
30 | Pictures from the Annual TCDLA Reading of the Declaration of Independence
35 | Organizers of This Year’s Readings of the Declaration of Independence

6 | President’s Message
8 | Executive Director’s Perspective
10 | Ethics and the Law
13 | Federal Corner
20 | Shout Outs

5 | CLE Seminars and Events
37 | Significant Decisions Report

President’s Message: Finding the Light – By Mark Snodgrass


Back on May 17th, I along with TCDLA Executive Director Melissa Schank and CDLP Chair Clay Steadman had the opportunity to sit down with Court of Criminal Appeals Justice Barbara Hervey and discuss TCDLA’s plans for the handling of our grant seminars during the upcoming year. One area of discussion that was deemed important to Justice Hervey and all involved was mental health issues affecting our clients. We assured the Justice that the issue would be addressed.

A recent study showed that about 30% of inmates currently in local Texas jails suffer from at least one serious mental illness. In 1970 only 5% of inmates suffered from serious mental illness. This 30% number does not consider those individuals with less severe undiagnosed mental health issues.

State funding for treatment of the mentally ill is inadequate. This is causing TDCJ and our county jails to become warehouses for the mentally ill in today’s society. As of today, at least in my area, inmates are often waiting up to one year or more in the county jails to be sent to a state mental hospital for restoration of competency under the provisions of Article 46B of the Texas Code of Criminal Procedure. This wait time often puts a defense attorney in a true ethical dilemma, especially when a client is charged with a class A or B misdemeanor and the wait for treatment for restoration is longer than any possible sentence.

About midmorning the day after our meeting with Justice Hervey, the news alert came across my phone that there was a school shooting in Santa Fe, Texas. By the time the dust had settled, a 17-year-old student had allegedly killed 10 and wounded 13 others. The alleged gunman was taken into custody and charged with multiple counts of capital murder and aggravated assault.

The following Monday when I dropped my daughter Claire off at school, I told her I loved her like I always do, and then added to be careful and stay safe. As I was driving away from the school, it dawned on me what I had said to her, and that I would be safer in a courtroom later that morning full of defendants charged with numerous felonies than my daughter would be in her eighth-grade English class. I find that extremely troubling and truly hope we can do something other than offer thoughts and prayers to fix this problem.

I have no personal knowledge if the alleged gunman in the Santa Fe shooting has any mental health issues, but it would not surprise me if he does. The 30% estimate of inmates in county jail being affected by mental health issues does not surprise me either. In an attempt to do something to help our members and others effectively represent these defendants with mental health issues, Clay Steadman and the Criminal Defense Lawyers Project committee will this year have a traveling CLE event titled “Come and Take It.” The “roadshow” is currently scheduled to go to ten cities and towns throughout the state—all the way from El Paso to South Padre Island to Texarkana and points in between.

One of the topics of the Come and Take It seminars will be Mental Health, Incompetence, and Insanity. The focus will be on investigating and discovering your clients’ mental health history and mental health issues as it relates to mitigation. Additionally, there will be discussion regarding factual and procedural issues as it relates to competency and the use of not guilty by reason of insanity as an affirmative defense. I urge each of you to attend this seminar so that we can all be better equipped to handle these cases that involve so many of our clients.

Executive Director’s Perspective: It Takes a Village – By Melissa J. Schank


The months of June and July are special times for TCDLA, though extremely busy. Most people are preparing for their summer vacations, but in the home office, June is particularly demanding, preparing for and orchestrating the annual Rusty Duncan Advanced Criminal Law Course, our annual board meetings, and all events that includes. But it’s all worth it for the opportunity to work with and see so many of our wonderful members. This year we had more than 800 attendees. Our success was due to our members and the leadership of our course directors—Gerry Goldstein, Nicole DeBorde, John Hunter Smith, and Mark Thiessen—who selected 36 stellar speakers.

At the annual TCDLA Board meeting, all board members checked in and signed a con­flict of interest statement, as well as a code of conduct policy and implementation of a procedures policy. TCDLA is one of the few associations proactive in creating a policy. The Executive Committee was very thorough in writing the language the board adopted in June. We are working on creating a training for board members and staff to review annually. This is so new that many associations will use TCDLA’s as a model. The board also voted in the North Texas Criminal Defense Lawyers Association as a new affiliate—welcome! David Moore also created the TCDLA Family Task Force, headed by Cynthia Orr and Nicole DeBorde, to aid with border issues. Our members have shown an overwhelming response in providing support and assistance.

The June meetings are also unique because of the changing of the guard. I had the opportunity to work closely with David, getting to know him on a personal and professional level. I truly admire his persona and the leadership he’s shown. He has guided me through challenging times, and I am grateful for his time and dedication. At the annual board meeting, we swore in our new board members, and I’m looking forward to getting to know them. In addition, we swore in a new president, Mark Snodgrass, my boss for the next 12 months. Each year, by the time I truly get to know the president and how to interact efficiently, it’s time to change the guard again. But I’ve worked with Mark as CDLP chair and on other committees in the past, so we are off to a great start.

Once Rusty ended, it was immediately back to work. We returned to the home office and began immediately processing some 800 evaluation forms from Rusty attendees. We ensure that every comment is recorded and seriously considered so we can continue improving. When we finish, we will start planning and making preparations for Rusty Duncan 2019 with our new course directors: Bobby Mims, Casie Gotro, Doug Murphy, and Jani Maselli Wood. Mark your calendars for June 13–15, 2019. The Hyatt Regency room block was full this year, so you might want to go ahead and make your reservations for 2019. This will be a legislative year, and though we understand everyone has many options, we want TCDLA to be your go-to for CLE. We strive to design CLE geared towards criminal defense attorneys, inviting exceptional speakers and experts while providing networking and time for socializing that cannot be matched in online CLE. We welcome any suggestions you may have for topics for future TCDLA CLE.

June is also particularly close to my heart as we get to cele­brate Father’s Day. This year I had a surprise visit from my dad. It was great just hanging out with family and, of course, eating lots of food. We had plenty of laughs and—as always—goodbyes were bittersweet. I owe my dad a lot for teaching me to adapt. As Air Force brats, we moved around when I was young. My knack for adapting to change and my learned social skills stem from these experiences. I almost wish I could have moved my kids around every other year just so they too could have gained similarly. It seems that talking on their game headsets will have to do for now for them learning communication skills. But I cherish the time I got to spend with family. One gratifying part of this visit came when dad saw the Voice cover with my photo on the coffee table. In that moment we could share in the pride I take in the place I work. I look forward to sharing and cherishing many more such moments with him. I have immense respect for the men who are fathers who raise children, nieces, nephews, and siblings, who are responsible for molding and mentoring the young. I genuinely believe in the saying “it takes a village to raise a child.”

We can also apply that same saying to a company or association. I know TCDLA is not successful because of any single individual. Our accomplishments are a result of the vision and passion of our officers, board members, committees, and members. Our staff provides the necessary support needed to assist in reaching the association’s goals. The president at the helm of TCDLA relies on past presidents and the executive committee’s guidance. It is great leadership that supports and empowers those they are surrounded by—again, it’s a village.

As swiftly as June came and went, July was here. Between the processing of all items related to Rusty Duncan, Public Defender training, and Capital CLE, we only had a little over a week to plan for July seminars. We prepared for our Trainer of Trainers to stay up to date with what our members want from our speakers. Experienced five-star speakers worked to convey what is expected of our future speakers. And we held the final edition of the Unleashing the Beast series, closing out Heather Barbieri’s year as CDLP chair, as well as an orientation and a members trip hosted by the Snodgrasses. Together we learned anew how TCDLA, TCDLEI, and CDLP—all unique and complicated in their own right—work together in complementing one another.

In between the activity, business stopped for half a day on July 3rd for TCDLA’s Declaration of Independence Readings. Robb Fickman and Chuck Lanehart helped organize more than 100 readings throughout the state. Word is getting out, and we had several out-of-state defense bars participate as well. This event will continue to grow due to their efforts.

What a rush—reading the Declaration on the steps of the Blackwell Thurman Courthouse. It was interesting to have so many people walk by and ask what we were doing. Many were enticed by the free doughnuts and coffee, but most left proudly displaying an American flag or lapel pin, and a number were curious enough to stay and listen to the reading. So many were brought together in this truly patriotic event hosted by the Austin Criminal Defense Lawyers Association and TCDLA. The audience included judges, attorneys, defendants, peace officers, children, and courthouse staff. We even had one comment that he would have participated if he didn’t have to go to jail. It was truly inspirational to witness such a gathering of folks from different walks of life. Each criminal defense lawyer or TCDLA staff person read a portion of the declaration with a true sense of patriotic pride, and despite the archaic words, each reader finished composed—and I believe with a true sense of connection to the never-ending battle against injustice that so many of our members face.

In these turbulent times, what can you do to serve your county and truly help society, fight for equality and justice under the law? What can you do to help ensure everyone has equal opportunity? Are you willing to stand up for what you believe even if you are in the minority? How do you help others understand your point of view without creating strife? How we do we teach our society to be proud of who you are and what you believe? Did our forefathers face these same issues confronting us today?

I strongly believe in order for our society to be successful we must learn to love thy brother and neighbor, uplift and encourage each other, stand by and support those in need, and respect our individual independence. Our country came together and fought for independence and the right for everyone to pursue happiness.

Ethics and the Law: Who Is Running This Show?


When I worked at a printing shop in Abilene, Texas, customers would come in and order posters, business cards, and circulars for sales events at grocery and department stores.

One day, a traveling salesman came in and ordered 500 8 x 10 cards that read “The Boss May Not Always Be Right, But He Is Always the Boss.” The salesman gave them out to the customers he called on. Almost every small business in Abilene had one.

The client may not always be right, but he is always the client. Right or wrong, the client makes the final decision on the following:

1.   Plea of guilty or plea of not guilty
2.   Court trial or jury trial
3.   Whether to testify or to not testify
4.   If the verdict is guilty, who decides whether it goes to a judge or the jury for punishment
5.   Whether to file a motion for a new trial or appeal
6.   Whether to concede guilt.

To save headaches down the road, the better practice is to get all these things documented by having the client sign.

Example: I am Perry Mason, accused citizen, and my lawyer, Matlock, has advised me I have a right to decide whether or not to testify. I understand this and I want to (testify) (not testify).

Another issue—the decision to call or not call certain witnesses—leads to some polite disagreement. Below are comments from members of the Ethics Committee:

I think the “to call witnesses or not call witnesses,” standing alone, invades the province of the attorney’s duties to the client. I would modify it as “calling witnesses if doing so affects whether the client pleads guilty or admits guilt.” In other words, the client has the right to not call Witness A because A may state on the record that client is guilty. Obviously, an attorney should call a material and relevant witness provided that witness does not harm the client’s case. But, if the power to call any witness were up solely to the client, the client may insist that you call up to (or more than) 20 witnesses that are cumulative to 5 other witnesses. Or, witnesses who have have nothing relevant to say. Or worse, witnesses who will damage the defensive theory. Allowing clients such unfettered power may serve to only harm the client’s case.

—Michael Mowla

Besides adding that the attorney cannot concede guilt over the objection of his client, I would remove calling witnesses and whether to file a motion for new trial. The client has no veto power over whether (or who) I call as a witness and whether I think it serves him to file a motion for new trial. However, if the client wants to appeal, I have no discretion—that’s his call. Whether to withdraw after sentencing—it depends. I generally don’t like to step away unless my soon-to-be-former client is in someone else’s hands.

—Keith S. Hampton

An article by Mark Walsh in the July 2018 issue of the ABA Journal deals with the most serious example of a lawyer and client disagreeing on strategy and a recent Supreme Court case about conceding guilt.

As Mark wrote:

The May 14 decision in McCoy v. Louisiana looked to English common law, the American Bar Association’s Model Rules of Professional Conduct, and the court’s own precedents for its holding. The Sixth Amendment, the court said, guarantees a defendant the right to choose the objective of their defense and to insist that their lawyer refrain from admitting guilt, even when the lawyer’s view, based on experience, is that confessing guilt provides the defendant the best hope to avoid the death penalty.

        Writing for a 6–3 majority, Justice Ruth Bader Ginsburg said, “with individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage or to maintain his innocence, leaving it to the state to prove his guilt beyond a reasonable doubt.”

In the case, where a jury found the defendant guilty of first-degree murder, McCoy refused to plead guilty by reason of insanity in an attempt to avoid the death sentence. In the Supreme Court decision, Justice Ginsburg wrote of the defendant’s right:

Ginsburg, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, stressed that trial management on matters such as what arguments to pursue and what objections to raise “is the lawyer’s province.” But some decisions “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf and forgo an appeal.”

        “Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case,” Ginsburg said. “But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.”

        The court held that the error in McCoy’s case was structural, and thus he must be granted a new trial. Ginsburg cited, among other things, ABA Model Rule 1.2(a) that says a “lawyer shall abide by a client’s decisions concerning the objectives of representation.”

Check out the July issue of the Journal for further details—and for a further read on the rights of a defendant in determining trial strategy.

Federal Corner: 40 Days of Search Cases From the Supreme Court – By F. R. Buck Files Jr.


On June 22, May 29, and May 14, 2018, the Supreme Court released opinions in three cases that reversed the judgments of the United States Court of Appeals for the Sixth Circuit, the Supreme Court of Virginia, and the United States Court of Appeals for the Third Circuit. Each of these cases was concerned with a significant search issue. In each case, a motion to suppress evidence was filed by the defendant’s lawyer and denied by the trial judge. In each case, the Judges of the Circuit Courts and the Justices of the Supreme Court of Virginia addressed the suppression issue, but affirmed the defendant’s conviction and sentence.

For me, these cases present a challenge. Because of the space constraints that I have for “The Federal Corner,” I cannot review each of these cases in depth; however, because of the importance of these cases, I determined that at least an overview of them would be helpful for the readers of the Voice. I would urge you to please read each of these cases. As you look at the holdings of the courts, you will realize that there is more to these cases than I have been able to include in this column.

        And a special thanks to Craig Hattersley who puts the Voice together and agreed to let me have additional space for this month’s column.

The Cell Site Location Information (CSLI) Case

        The Fact Situation: Federal authorities needed the defendant’s historical cell site location information to place him at the scene of several robberies.

        On June 22, 2018, the Supreme Court held that:

  • An individual maintains a legitimate expectation of privacy, for Fourth Amendment purposes, in the record of his physical movements as captured through CSLI;
  • Seven days of historical CSLI obtained from defendant’s wireless carrier, pursuant to an order issued under the Stored Communications Act (SCA), was the product of a “search”;
  • The Government’s access to 127 days of historical CSLI invaded defendant’s reasonable expectation of privacy; and,
  • The Government must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier [emphasis added].

Carpenter v. United States, ___S.Ct.___, 2018 WL 3073916 (June 22, 2018) [Opinion by Chief Justice Roberts with Justices Ginsburg, Breyer, Sotomayor, and Kagan joining. Kennedy filed a dissenting opinion, in which Thomas and Alito joined. Thomas filed a dissenting opinion. Alito filed a dissenting opinion, in which Thomas joined. Gorsuch filed a dissenting opinion.] Chief Justice Roberts’ opinion reads, in part, as follows:

[The Question Presented]

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

* * *

[The Facts in More Detail]

In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T-Mobile stores in Detroit. One of the men confessed that over the previous four months, the group (along with a ro­tating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.

        Based on that information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several other suspects. . . . Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

[In the District Court]

Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. See 18 U.S.C. §§ 924(c), 1951(a). Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion. App. to Pet. for Cert. 38a–39a.

* * *

[In the Court of Appeals]

The Court of Appeals for the Sixth Circuit affirmed. 819 F.3d 880 (2016). The court held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers as “a means of establishing communication,” the court concluded that the resulting business records are not entitled to Fourth Amendment protection. Id., at 888 (quoting Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

* * *

[The Fourth Amendment]

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

* * *

[Protecting the Right of Privacy]

As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure [ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

* * *

[Existing Precedents Do Not Help With the Facts in This Case]

The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents.

* * *

[The Question Before the Court]

The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals.

* * *

[An Individual’s Reasonable Expectation of Privacy]

A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U.S., at 351–352, 88 S.Ct. 507. A majority of this Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Jones, 565 U.S., at 430, 132 S.Ct. 945.

* * *

[The Government’s Access to Cell Site Records Contravenes That Expectation]

Allowing government access to cell-site records contravenes that expectation. Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.

* * *

[W]hen the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

* * *

[The Court’s Decision Is a Narrow One]

Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).

* * *

[Generally, the Government Must Obtain a Search Warrant for Cell Site Location Information Records]

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. Although the “ultimate measure of the constitutionality of a governmental search is ‘reasonableness,’” our cases establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing’” [emphasis added].

* * *

[Obtaining an Order Under the Stored Communications Act Falls Far Short of the Probable Cause Required for a Warrant]

The Government acquired the cell-site records pursuant to a court order issued under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(d). That showing falls well short of the probable cause required for a warrant. The Court usually requires “some quantum of individualized suspicion” before a search or seizure may take place. United States v. Martinez–Fuerte, 428 U.S. 543, 560–561, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Under the standard in the Stored Communications Act, however, law enforcement need only show that the cell-site evidence might be pertinent to an ongoing investigation—a “gigantic” departure from the probable cause rule, as the Government explained below. App. 34. Consequently, an order issued under Section 2703(d) of the Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.

* * *

[The Government’s Acquisition of the Cell Site Records Was a Search]

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.

[The Result]

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

As a matter of interest, Carpenter probably comes as a shock to federal prosecutors and law enforcement officers because—for more than 11 years—they have obtained historical cell site location information from cell phone service providers under the authority of the Stored Communications Act (18 U.S.C. §§ 2701 et. seq.). This information has assisted the Government in being able to place a defendant at the scene of a crime. Using WestLaw’s All Federal database, I ran the query “stored communications act” & c.s.l.i. “cell site location information” & (motion /2 suppress!) and found 79 cases beginning with In Re Application of U.S. for an Order for Prospective Cell Site Location Information on a Certain Cellular Telephone, 460 F.Supp.2d 448 (S.D. New York 2006).

The Curtilage Case

The Fact Situation: A police officer was looking for a stolen motorcycle. He believed that it was in a shed in the defendant’s yard, and he walked through the curtilage to get to the shed and the motorcycle.

On May 29, 2018, the Supreme Court held that:

  • A partially enclosed top portion of driveway of home, in which defendant’s motorcycle was parked, was curtilage for Fourth Amendment pur­poses, and
  • The automobile exception to warrant requirement for searches did not justify police officer’s invasion of curtilage of home [emphasis added].

Collins v. Virginia, ___S.Ct.___, 2018 WL 2402551 (May 29, 2018) [Justice Sotomayor, Chief Justice Roberts, Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan, Alito, and Gorsuch. Opinion by Sotomayor. Thomas filed a concurring opinion. Alito filed a dissenting opinion.] Justice Sotomayor’s opinion reads, in part, as follows:

[The Question Presented]

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.

* * *

[The Fourth Amendment]

The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

[The Tension Between the Automobile Exception and the Curtilage of a Home]

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

* * *

[The Automobile Exception]

The Court has held that the search of an automobile can be reasonable without a warrant. The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In that case, law enforcement officers had probable cause to believe that a car they observed traveling on the road contained illegal liquor. They stopped and searched the car, discovered and seized the illegal liquor, and arrested the occupants. Id., at 134–136, 45 S.Ct. 280. The Court upheld the warrantless search and seizure, explaining that a “necessary difference” exists between searching “a store, dwelling house or other structure” and searching “a ship, motor boat, wagon or automobile” because a “vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id., at 153, 45 S.Ct. 280.

        The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (citing, e.g., Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Chambers v. Maroney, 399 U.S. 42, 51–52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)). Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U.S., at 392, 105 S.Ct. 2066. As the Court explained in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.” Id., at 368, 96 S.Ct. 3092.

[The Limitation to the Automobile Exception]

In announcing each of these two justifications, the Court took care to emphasize that the rationales applied only to automobiles and not to houses, and therefore supported “treating automobiles differently from houses” as a constitutional matter. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

[Officers May Search Without a Warrant]

When these justifications for the automobile exception “come into play,” officers may search an automobile without having obtained a warrant so long as they have probable cause to do so. Carney, 471 U.S., at 392–393, 105 S.Ct. 2066.

* * *

[The Protection of the Curtilage]

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law.
“[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U.S., at 6, 133 S.Ct. 1409 (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 212–213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

[An Intrusion on the Curtilage Is a Search]

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines, 569 U.S., at 11, 133 S.Ct. 1409. Such conduct thus is presumptively unreasonable absent a warrant.

* * *

[The Automobile Exception and the Invasion of the Curtilage]

In physically intruding on the curtilage of Collins’ home to search the motorcycle, Officer Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of his home. The question before the Court is whether the automobile exception justifies the invasion of the curtilage. The answer is no.

* * *

[The Curtilage Protection Trumps the Automobile Exception]

Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “‘untether’” the automobile exception “‘from the justifications underlying’” it.

[The Result]

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein. We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage of Collins’ house may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement. The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

The Driver Whose Name Is Not on the Rental Car Agreement Case

The Fact Situation: The driver of a rental car does not have his name on the rental agreement. Law enforcement officers stop the vehicle, search it and find a significant quantity of drugs. The defendant files a motion to suppress the evidence, but the judge denies the motion on the ground that the defendant lacked “standing” to contest the search and seizure as an initial matter.

On May 14, 2018, the Supreme Court held that:

  • The Supreme Court would not consider, in the first instance, defendant’s contention that he had common-law property interest in the rental car as a second bailee, which gave him cognizable Fourth Amendment interest;
  • The defendant violated rental car agreement signed by third party did not eliminate any reasonable expectation of privacy he had in the vehicle;
  • The Supreme Court would not consider, in the first instance, the Government’s argument that the defendant was no better than a car thief and so had no expectation of privacy;
  • The Court of Appeals would be required to address, on re­mand, whether troopers had probable cause that justified their warrantless search of the car; and,
  • The mere fact that a driver in lawful possession or control of a rental car is not listed as an authorized driver on rental agreement will not defeat his or her otherwise reasonable expectation of privacy under the Fourth Amendment, abrogating U.S. v. Kennedy, 638 F.3d 159, U.S. v. Seeley, 331 F.3d 471, U.S. v. Wellons, 32 F.3d 117, U.S. v. Roper, 918 F.2d 885 [emphasis added].

Byrd v. United States, 138 S.Ct. 1518 (May 14, 2018) [Justices Kennedy, Thomas, Gorsuch, and Alito. Opinion by Kennedy. Thomas filed a concurring opinion, in which Gorsuch joined. Alito filed a concurring opinion.] Justice Kennedy’s opinion reads, in part, as follows:

[Why the Court Granted Certiorari]

This Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement. The Court now holds that as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.

[A Remand Is Necessary]

The Court concludes a remand is necessary to address in the first instance the Government’s argument that this general rule is inapplicable because, in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy.

* * *

[The Government’s Position]

Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections. Byrd, by contrast, contends that the sole occupant of a rental car always has an expectation of privacy in it based on mere possession and control. There is more to recommend Byrd’s proposed rule than the Government’s; but, without qualification, it would include within its ambit thieves and others who, not least because of their lack of any property-based justification, would not have a reasonable expectation of privacy.

[The Court’s Response]

Stopped to its essentials, the Government’s position is that only authorized drivers of rental cars have expectations of privacy in those vehicles. This position is based on the following syllogism: Under Rakas, passengers do not have an expectation of privacy in an automobile glove compartment or like places; an unauthorized driver like Byrd would have been the passenger had the renter been driving; and the unauthorized driver cannot obtain greater protection when he takes the wheel and leaves the renter behind. The flaw in this syllogism is its major premise, for it is a misreading of Rakas.

[The Court’s Opinion in Rakas Does Not Apply]

The Court in Rakas did not hold that passengers cannot have an expectation of privacy in automobiles. To the contrary, the Court disclaimed any intent to hold “that a passenger lawfully in an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he hap­pens to own or have a possessory interest in it.” 439 U.S., at 150, n. 17, 99 S.Ct. 421 (internal quotation marks omitted). The Court instead rejected the argument that legitimate presence alone was sufficient to assert a Fourth Amendment interest, which was fatal to the petitioners’ case there because they had “claimed only that they were ‘legitimately on [the] premises’ and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched.”

[Here, the Defendant Was the Driver—Not the Passenger]

What is more, the Government’s syllogism is beside the point, because this case does not involve a passenger at all but instead the driver and sole occupant of a rental car. As Justice Powell observed in his concurring opinion in Rakas, a “distinction . . . may be made in some circumstances between the Fourth Amendment rights of passengers and the rights of an individual who has exclusive control of an automobile or of its locked compartments.” Id., at 154, 99 S.Ct. 421. This situation would be similar to the defendant in Jones, supra, who, as Rakas notes, had a reasonable expectation of privacy in his friend’s apartment because he “had complete dominion and control over the apartment and could exclude others from it,” 439 U.S., at 149, 99 S.Ct. 421. Justice Powell’s observation was also consistent with the majority’s explanation that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude,” id., at 144, n. 12, 99 S.Ct. 421, an explanation tied to the majority’s discussion of Jones.

[It Does Not Matter Whether the Car Is Rented or Privately Owned by Someone Else]

The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. Tr. of Oral Arg. 48–49.

* * *

[Standing in Fourth Amendment Cases]

It is worth noting that most courts analyzing the question presented in this case, including the Court of Appeals here, have described it as one of Fourth Amendment “standing,” a concept the Court has explained is not distinct from the merits and “is more properly subsumed under substantive Fourth Amendment doctrine.” Rakas, supra, at 139, 99 S.Ct. 421.

        The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 129, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011). . . . Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim. On remand, then, the Court of Appeals is not required to assess Byrd’s reasonable expectation of privacy in the rental car before, in its discretion, first addressing whether there was probable cause for the search, if it finds the latter argument has been preserved.

* * *

[The Court’s Ruling]

Though new, the fact pattern here continues a well-traveled path in this Court’s Fourth Amendment jurisprudence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. The Court of Appeals has discretion as to the order in which these questions are best addressed [emphasis added].

Alert! Alert! Alert! Byrd brings a change to motions to suppress in our Circuit. Prior to Byrd, a defendant whose name was not on the rental agreement lacked standing to challenge the search of a rental car by a motion to suppress. United States v. Seeley, 331 F.3d 471 (5thCir. 2003) [per curiam]. No more!

My Thoughts on These Three Cases

  • Carpenter v. United States, ___S.Ct.___, 2018 WL 3073916 (June 22, 2018): I will be surprised if this case impacts us at all. The Government will have a higher hurdle to get over before they will be able to obtain cell site location information; however, there’s nothing magic about obtaining a search warrant for this information.
  • Collins v. Virginia, ___S.Ct.___, 2018 WL 2402551 (May 29, 2018): The fact situation here was unique and one that we might never see again. We all understand the sanctity of the curtilage and know how to file a motion to suppress evidence if we have a curtilage issue.
  • Byrd v. United States, 138 S.Ct. 1518 (May 14, 2018): This is the case that will benefit defense lawyers the most. No longer will the Government be able to argue that the defendant’s name is not on the rental agreement and give the court a reason to deny the defendant’s motion to suppress evidence. Seeley is dead and gone.

Shout Outs


Shout out to Michael A. Warner of Amarillo for his recent not guilty verdict in the 47th District Court in Potter County. D, charged with continuous sexual abuse of a child, was the stepfather of the 8-year-old alleged victim—who testified that D had taken “sticks” and put them in her bottom “twice a year for various years.” English was the 3rd-grade victim’s second language. Counsel asked the little girl to spell “various,” and she was not able (“various” appearing in the counselor’s notes numerous times). Michael’s defense was that victim’s mother and D were both here illegally, and mother was attempting to get a visa by being the parent of a sexual crime victim. Mother got a free immigration attorney, divorce attorney, $3,000 in crime victim’s compensation from the State, money to move to Washington state to be near girl’s daddy, utilities paid for in Amarillo, and a housing subsidy in Washington. Mother also got most of the property in the divorce. Jury, out just 2½ hours, believed it was a made-up story for financial gain by mother and an attempt to stay in the country instead of being deported. Congratulations on a big win, Michael.

Kudos to Waxahachie warrior Mark Griffith for his win in an 8-day trial—where the State put on evidence for 7½ days. Mark says, “Our defense took three witnesses and about 2 hours.” The charge was indecency with a child. On cross the child admitted to lying to the jury on 21 occasions under oath. Further, during questioning of the child witnesses, Mark asked her why she changed her testimony from one day to the next, and she pointed at the prosecutor and said, “She told me I needed to change my story.”
 Mark adds, “At the end of all evidence the Judge would not let me do a full offer of proof on witness tampering on the part of the prosecutor.” But he’s ordered a transcript and a grievance against both prosecutor and the Judge—for not filing a grievance against the prosecutor for tampering with a witness. After the charge was read to the jury and they left the courtroom, the Judge told Mark he’d let him know when they wanted to go to lunch, but Mark said wait, they wouldn’t go to lunch: A not-guilty verdict would come within 25 minutes. It took 21 minutes. Mark credits co-counsel Sarah Duncan and Makenzie Keene, in intern going into her third year at Tech Law, as invaluable in instant research and for showing the wisdom and compassion of true warriors. And he adds: “Always trust a jury. They see straight through the BS if you point it out to them.“

A tip of the hat to Denton’s Bruce Isaacks and Camila Francino for their recent wins. D was charged with a second-degree felony possession of a controlled substance, enhanced to a first-degree felony punishment. Arresting officer found a ziplock bag inside a bag in the backseat of D’s car and a smaller ziplock bag inside a camouflage bag in the front seat. The DPS lab didn’t test substance in the small bag, only what was in the big one in the back. The bag contained no identifying information, and testimony showed there were other people in the back seat earlier that day. The jury returned the big NG.
 The next week the pair went to trial on an assault family violence case, arguing defense of property. Once again, the jury returned a quick not guilty verdict. Congratulations, Bruce and Camila, on a nice week’s worth of work.

Shout out to TCDLA Past President Sam Bassett and TCDLA Associate Board Member Rick Flores for their recent win in a criminally negligent homicide trial in Travis County. D confronted another man on the street who had inappropriately touched his wife and another woman inside a bar. D pushed the man, who tripped and fell, fractured his skull, and died. The State focused its case on causation—while Sam and Rick argued that D could not have been aware that there was a substantial and unjustifiable risk that death would result from the shove. The jury agreed and ruled not guilty. Good work, guys, for a big win.

Kudos to E. X. Martin of Dallas for his recent win in a Breach Of Computer Security jury trial. He notes that the state offered a misdemeanor plea deal, which they turned down. The jury took only 15 minutes to agree, so apparently it was the right move.

Past president Gerry Goldstein sent along this shout out: “We all know of the countless spectacular and incredible courtroom victories of our able Brothers, Dick DeGuerin and Mark Stevens. What I’d like to recognize and we too often do not adequately praise are those cases that require remarkable sacrifice, courage, and stamina of our Brothers and Sisters who spend literally months in federal court standing up against impossible odds. Mark and Dick deserve our respect and kudos for their remarkable efforts in the Bandidos’ trial that ended here in San Antonio yesterday. At every moment and every turn they embodied the best tradition of our profession!”