Monthly archive

August 2019

September 2019 SDR – Voice for the Defense Vol. 48, No. 7

Voice for the Defense Volume 48, No. 7 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 notrely 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

United States v. Haymond, No. 17-1672, 2019 U.S. LEXIS 4398 (U.S. June 26, 2019) [Mandatory minimum sentences for supervised-release violations under 18 U.S.C. § 3583(k) violate Apprendi]

        Under Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), the Sixth Amendment’s “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury” and the Fifth Amendment’s “no one may be deprived of liberty without ‘due process of law’” ensures that the government must prove to a jury every criminal charge beyond a reasonable doubt. It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties, which include maximums and minimums. Facts necessary to increase minimum or maximum punishment should be found by the jury.

        Supervised-release violations subject to 18 U.S.C. § 3583(k) expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury’s verdict and violate Apprendi.

Editor’s note: This is a plurality opinion, the majority being Gorsuch, Ginsburg, Sotomayor, and Kagan.

United States Court of Appeals for the Fifth Circuit

United States v. Buluc, No. 17-20694, 2019 U.S. App. LEXIS 20311 (5th Cir. July 9, 2019) (designated for publication) [Interfering with removal of an alien under 8 U.S.C. § 1253(a)(1)(C) and the Confrontation Clause]

        Under 8 U.S.C. § 1253(a)(1)(C), an alien against whom a final order of removal is outstanding who willfully fails or refuses to depart from the United States within 90 days from the final order of removal under administrative processes, or if judicial review is had from the date of the final order of the court, willfully fails or refuses to make timely application in good faith for travel or other documents necessary to departure, connives or conspires, or takes any other action, designed to prevent or hamper or for preventing or hampering departure per an order, or willfully fails or refuses to present himself for removal at the time and place required by the AG, shall be fined or imprisoned not more than 4 years or 10 years if the alien is a smuggler, has a felony conviction, is a trafficker, failed to register as an alien, falsified immigration documents, or committed a national security crime. The alien may be convicted without proof that he acted in concert with another.

        Under Crawford v. Washington, 541 U.S. 36, 53–54 (2004), testimonial statements of a witness who does not appear at trial is prohibited by the Confrontation Clause unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Under Ohio v. Clark, 135 S.Ct. 2173, 2180 (2015), an out-of-court statement triggers the Confrontation Clause only if the statement was testimonial, meaning its primary purpose was to create an out-of-court substitute for trial testimony. A statement is nontestimonial if the circumstances indicate that it was primarily aimed at quelling an ongoing emergency. A court examines factors like whether an ongoing emergency exists and the informality of the situation and interrogation.

United States v. Butt, et al, No. 18-20131, 2019 U.S. App. LEXIS 20862 (5th Cir. July 15, 2019) (designated for publication)

        Under 21 U.S.C. § 853(n)(2)–(3) and Fed. Rule Crim. Proc. 32.2(c)(1), a nonparty asserting a legal interest in property that has been ordered forfeited may petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The district court must conduct an ancillary proceeding.

        Under 21 U.S.C. § 853(n)(6), a petitioner has the burden of proving by a preponderance of the evidence that: (1) legal right, title, or interest in the forfeited property was vested in the petitioner rather than the defendant or was superior to that of the defendant when the commission of the acts that gave rise to the forfeiture occurred; or (2) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture.

        Under Fed. Rule Crim. Proc. 32.2(c)(1)(A), in an ancillary proceeding the district court may on motion dismiss the petition for lack of standing, for failure to state a claim, or for any lawful reason. The facts in the petition are assumed to be true. Courts follow the Fed. Rule Civ. Proc. for ancillary proceedings. The standard of review under Fed. Rule Civ. Proc. 12 for motions to dismiss is: de novo of a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the nonmoving party.

        Unsecured creditors generally lack standing to contest forfeiture of their debtor’s property. An unsecured creditor cannot establish a legal right to any particular piece of property in the debtor’s estate and therefore cannot satisfy 21 U.S.C. § 853(n)’s requirement that the interest exist in the property subject to forfeiture.

United States v. Daniels, No. 18-30791, 2019 U.S. App. LEXIS 20449 (5th Cir. July 10, 2019) (designated for publication) [Exigent circumstances; knock-and-talk; evidentiary rulings regarding officer misconduct]

        Under United States v. Carrillo-Morales, 27 F.3d 1054, 1060–1061 (5th Cir. 1994), and United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998), when reviewing a denial of a motion to suppress evidence, the 5th Circuit reviews factual findings for clear error and the constitutionality of law enforcement action de novo. A district court’s ruling in a motion to suppress should be upheld if there is any reasonable view of the evidence to support it. The evidence must be viewed in the light most favorable to the party that prevailed. The defendant has the burden to prove by a preponderance of the evidence that the evidence was obtained in violation of the Fourth Amendment.

        Searches and seizures inside a home without a warrant are presumptively unreasonable but allowed if exigencies make the needs of law enforcement so compelling that it becomes objectively reasonable. A valid exigency exists when an officer believes that evidence is being destroyed, although the officer may not rely on the need to prevent destruction of evidence when that exi­gency was created or manufactured by the conduct of the police (an officer may not engage or threaten to engage in conduct that violates the Fourth Amendment in order to create an exigency).

        Whether an exigency exists depends on a non-exhaustive five-factor test per United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011): (1) degree of urgency involved and amount of time necessary to obtain a warrant; (2) reasonable belief that con­traband is about to be removed; (3) possibility of danger to the police officers guarding the site of contraband while a search war­rant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) ready destructibility of the contraband and the knowledge that efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.

        Evidentiary rulings are reviewed for abuse of discretion and will not cause a reversal unless the error was harmful and affected a substantial right (the trier of fact would have not found the defendant guilty beyond a reasonable doubt with the additional evidence inserted).

United States v. Jones, No. 18-50086 & 18-50088, 2019 U.S. App. LEXIS 19822 (5th Cir. July 2, 2019) (op. on reh) (designated for publication) [Confrontation Clause pertaining to statements by a CI; disclosure of a CI’s identity]

        Under Crawford v. Washington, 541 U.S. 36, 42, 61 (2004), testimonial statements of witnesses absent from trial may be admitted only where the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Review of preserved claims of Confrontation Clause error is de novo subject to harmless error.

        Officers cannot refer to the substance of statements given to them by nontestifying witnesses when those statements inculpate the defendant. An officer’s testimony need not repeat the absent witness’ exact statement to implicate the Confrontation Clause. Rather, where an officer’s testimony leads to the clear and logical inference that out-of-court declarants believed and said that the defendant was guilty of the crime charged, Confrontation Clause protections are triggered.

        Under Gray v. Maryland, 523 U.S. 185, 193–194 (1998), if a jury is not required to make logical inferences to link a CI’s statement to the defendant’s guilt such that the defendant is linked to the crime and doubt is eliminated as to who the CI is referring to, the Confrontation Clause is triggered.

        Officers may refer to out-of-court statements to provide con­text for their investigation or explain background facts so long as the statements are not offered for the truth of the matter asserted but instead for another purpose like to explain the officer’s actions. The prosecution must be circumspect in the use of such evidence, and the trial court must be vigilant in preventing its abuse.

        Under Bruton v. United States, 391 U.S. 123, 135 (1968), although jurors are ordinarily expected to follow instructions, some statements are so powerfully incriminating that they are not cured by instructions.

        A nontestifying witness’ out-of-court statement, including a co-defendant’s confession, that facially incriminates a defendant violates the defendant’s Sixth Amendment right to confrontation even when the jury is instructed not to consider the prior statements as evidence.

        For invited error to permit waiver of the Confrontation Clause, a purposeful rather than inadvertent inquiry into the forbidden matter must be shown. Invited error applies only where the error can be attributed to the actions of the defense. A defendant may cross-examine the government’s witnesses and probe inconsistencies without risking the unwitting admission of incriminating hearsay. To hold otherwise would eviscerate the protections of the Confrontation Clause by forcing defendants to choose between their right to vigorously cross-examine testifying witnesses and their right to confront out-of-court accusers.

        Under Chapman v. California, 386 U.S. 18, 24 (1967), unless error is structural, error may be harmless if there was no reasonable possibility that the tainted evidence might have contributed to the jury’s verdict. Under United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004), the harmlessness inquiry focuses on the evidence that violated the right and not the sufficiency of the evidence remaining after excision of the tainted evidence. When the Government has the burden of addressing prejudice as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case.

        Under Roviaro v. United States, 353 U.S. 53, 62 (1957), and United States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017), review of a district court’s decision to deny disclosure of a CI’s identity is for abuse of discretion. There is no fixed rule because the problem calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. The test to determine whether the identity of a CI should be disclosed is the: (1) level of the CI’s activity; (2) helpfulness of the disclosure to the asserted defense; and (3) government’s in­terest in nondisclosure. Denying disclosure is proper when the CI was a mere tipster, did not provide information that would aid the defense, or the disclosure posed risks to the safety of the CI and his family and could jeopardize other ongoing investigations.

        Under Giglio v. United States, 405 U.S. 150, 154–155 (1972), the value of impeachment evidence depends on how a witness is used at trial and whether his credibility is a relevant issue.

Texas Court of Criminal Appeals

Alfaro-Jimenez v. State, No. PD-1346-17, 2019 Tex.Crim.App.LEXIS 662 (Tex.Crim.App. July 3, 2019) (designated for publication) [Legal sufficiency and a material variance between the indictment and the evidence presented at trial]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in tes­ti­mony, weighing of evidence, and drawing reasonable inferences from the facts. 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). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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). The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

        Under 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. Variances are tolerated if they are not so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.

Editor’s note: the TCCA reversed and acquitted appellant due to a material variance between the indictment and the evidence presented at trial. Thus, I add below the full legal sufficiency analysis, including the law regarding material variances:

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the es­sen­tial elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. 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). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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). The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • Under 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. Variances are tolerated if they are not so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.
  • Tex. Penal Code § 37.10, Tampering with Governmental Record, can be committed 6 ways and may involve a real record (also defined 6 ways) or a fake one. It is punishable from a Class A to an F-2 and is determined by the type of record tampered with and whether the actor’s intent is to defraud or harm another.
  • The government had so show that what Appellant possessed or presented was a governmental record. Neither subsections al­low a conviction by mere proof that Appellant intended for a fake document to be taken as genuine.
  • Tex. Penal Code § 37.10(a)(2) does not require proof that the record presented was an authentic governmental record. It allows a conviction if the government proves that the defendant: makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a gen­uine governmental record. This allows a conviction if one presents a counterfeit governmental record as if it were authentic. But this was not the theory under the indictment.
  • By indicting Appellant for tampering with a governmental record under § 37.10(a)(4) and (a)(5), the State had to prove that the fake card was a real governmental record and not merely that Appellant intended the card be taken as a genuine governmental record.
  • The judgment of the court of appeals is reversed and Appellant is acquitted.

Chambers v. State, No. PD-0771-17, 2019 Tex.Crim.App.LEXIS 660 (Tex.Crim.App. June 26, 2019) (designated for publication) [“Required by law” jury instruction for tampering with governmental records; “defraud” in context of governmental records]

        The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.

        There is no requirement that the state prove that a governmental record is “required by law” to be kept for it to be considered a governmental record.

        Under Tex. Penal Code § 1.07(a)(25), “harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person af­fected is interested.

        Defraud is not statutorily defined but is defined by “dishonest means that cause an injury or loss by withholding a possession, right, or interest.” To be defrauded, the government must have a right or duty to act (or refrain from acting) on the matter intended to be affected by the deceit.

        A legal impossibility exists where the defendant intends to do something that would not constitute a crime (or at least the crime charged) or intends to commit a crime not because he intends to do something the criminal law prohibits but because he is ignorant of the law. Thus, a defendant may intend to prevent the government from taking a certain action against him (fining him) and if the government has no authority to fine the defendant, then it is legally impossible for the defendant to “defraud” the government out of an opportunity to fine him even if the defendant believes the government has that authority.

        Intent to defraud a government entity requires an intent to cause the entity to rely upon a false representation to act (or refrain from acting) on a certain matter and the government has the right or duty to act on that matter.

Editor’s note: the complete analysis for determining harm from jury instruction error:

  • The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” re­quires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.

Franklin v. State, No. PD-0787-18, 2019 Tex.Crim.App.LEXIS 661 (Tex.Crim.App. July 3, 2019) (designated for publication) [A claim under Miller v. Alabama must be asserted by the defendant]

        A Miller claim is the assertion that the Eighth Amendment is violated by applying a mandatory sentence of life without parole to the defendant because he was under 18 at the time of his offense.

        A Miller claim is not forfeited by the failure to raise it at trial.

        A defendant who wishes to rely on Miller must claim that he was under the age of 18 at the time of his offense.

        An age-based ineligibility claim (a Miller claim) is like an Atkins intellectual-disability claim in that a characteristic of the defendant that mitigates moral culpability creates an exemption with respect to punishment. Thus, like an Atkins claim, it is an affirmative defense in that the defendant has the burden to prove it by a preponderance of the evidence whether the issue is raised at trial or on habeas.

Ruiz v. State, No. PD-1348-17, 2019 Tex.Crim.App.LEXIS 664 (Tex.Crim.App. July 3, 2019) (designated for publication) [The Fourth Amendment applies only to government action; Art. 38.23 does not extend the Fourth Amendment to private citizens acting in a private capacity]

Smith v. State, No. PD-0715-17, 2019 Tex.Crim.App.LEXIS 663 (Tex.Crim.App. July 3, 2019) (designated for publication) [Instruction for voluntary intoxication under Tex. Penal Code § 8.04(a)]

        Under Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1), during the punishment phase the State may offer evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible in four ways, showing that the defendant: (1) committed an extraneous crime; (2) is criminally responsible for an extraneous crime committed by another; (3) personally committed an extraneous bad act; and (4) is criminally responsible for an extraneous bad act committed by another. Under Art. 37.07 § 3(a)(1), the distinction between crimes and bad acts is irrelevant because unlike the guilt-innocence phase, the question at punishment is not whether the defendant has committed a crime but what sentence should be assessed. The punishment phase requires the jury only find that the prior acts are attributable to the defendant beyond a reasonable doubt.

        Under Tex. Penal Code § 8.04(a), voluntary intoxication is not a defense to the commission of crime but is an anti-defensive issue (“it is no defense to prosecution”) because it benefits the State’s position but is not something the indictment requires the State to prove from the outset.

        Evidence that supports giving a voluntary-intoxication instruction in the punishment phase are those from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions. The trial court must expressly limit a punishment-phase instruction under Tex. Penal Code § 8.04(a) so that it applies only to the jury’s consideration of extraneous-conduct evidence. It cannot apply to or be considered with the indicted conduct. It may be applied to extraneous conduct only because in the punishment phase, the lawfulness or unlawfulness of that conduct has not yet been finally resolved.

Texas Courts of Appeals

$38,400 v. State, No. 04-18-00258-CV, 2019 Tex.App.—LEXIS 5311 (Tex.App.—San Antonio June 26, 2019) (designated for publication) [Summary judgment standard in civil forfeiture proceedings]

        Under Tex. Code Crim. Proc. Art. 59.05(a), forfeiture proceedings are civil in nature and the rules of civil procedure apply, so when a party files a motion for summary judgment arguing it is entitled to judgment as a matter of law because its evidence established there is no genuine issue as to any material fact regarding each and every element of its ground, the motion is a traditional motion for summary judgment under Tex. Rule Civ. Proc. 166a.

        Summary judgment is viewed in a light most favorable to the nonmovant, so the reviewing court takes take all evidence fa­vor­able to the nonmovant as true and indulges every reasonable inference and resolve any doubts in the nonmovant’s favor. Summary judgment is proper only if the movant conclusively establishes all facts necessary to entitle the movant to judgment as a matter of law. The court may not draw inferences against the nonmovant because doing so is the responsibility of the factfinder and not the court.

        Under Tex. Code Crim. Proc. Art. 59.01(2)(B)(i), (C), “contraband” includes property of a nature that is used or intended to be used in the commission of any felony under Tex. Health & Safety Code Ch. 481 and proceeds gained from the commission of such a felony.

Editor’s note: “According to his discovery responses, Sosa found the money ($38,400) in the black bag on the roadside.” This case shows that anything is possible.

Arrington v. State, No. 01-17-00859-CR, 2019 Tex.App.—LEXIS 5552 (Tex.App.—Houston [1st Dist.] July 2, 2019) (designated for publication) [Collective knowledge doctrine; entering a home under exigent circumstances to make an arrest under Tex. Code Crim. Proc. Art. 14.05]

        Under Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App. 2009), to suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct, which is satisfied if the defendant shows that a search or seizure occurred without a warrant. The burden shifts to the State to establish that the search or seizure was reasonable. The State may satisfy this burden by showing that one of the statutory exceptions to the warrant requirement is met.

        Under Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App. 2009), probable cause for a warrantless arrest requires that at the moment of arrest the facts within the arresting officer’s knowledge or of which he has reasonably trustworthy information are sufficient to warrant a reasonable belief that the person arrested committed or was committing an offense. Probable cause requires more than bare suspicion but less than for a conviction. The test for probable cause is objective, is unrelated to the subjective belief of the officer, and requires consideration of the totality of the circumstances. If probable cause exists, exigent circumstances may require an immediate warrantless entry to arrest a suspect.

        Under Derichsweiler v. State, 348 S.W.3d 906, 914–915 (Tex.Crim.App. 2011), probable cause is subject to the collective knowledge doctrine, so the detaining officer need not be per­sonally aware of every fact that objectively supports a reasonable suspicion to detain. The cumulative information known to the cooperating officers at the time of the stop is considered in determining whether reasonable suspicion exists.

        Under Tex. Code Crim. Proc. Art. 14.01(a), a peace officer or any other person may arrest an offender when the offense is committed in his presence or within his view if the offense is a felony or against the public peace.

        Under Miles v. State, 241 S.W.3d 28, 42 (Tex.Crim.App. 2007), DWI is a breach of the peace.

        Under Tex. Code Crim. Proc. Art. 14.05, an officer may not enter a residence to make a warrantless arrest unless the resident consents to his entry or exigent circumstances require the officer making the arrest to enter the residence.

Fulton v. State, No. 12-18-00031-CR, 2019 Tex.App.—LEXIS 5146 (Tex.App.—Tyler June 20, 2019) (designated for publication) [Legally sufficient evidence for criminally negligent homicide; IATC at punishment]

        Under Tex. Penal Code §§ 6.03(d), 19.05(a), and Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012), to support a conviction for criminally negligent homicide, the State must prove that: (1) the defendant’s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) the defendant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred. Criminal negligence does not require proof of a defendant’s subjective awareness of the risk of harm but rather his awareness of the attendant circumstances leading to such a risk. Criminal negligence occurs not when the actor is aware of a substantial risk and disregards it but rather when he fails to perceive the risk at all.

        Under Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012), there is a legal distinction between criminal negligence and civil negligence: Civil or “simple” negligence means the failure to use ordinary care (failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances). Criminal negligence involves a greater risk of harm to others: The seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. The risk must be substantial and unjustifiable and the failure to perceive it must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. In finding a defendant criminally negligent, a jury must determine that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment. The degree of deviation from reasonable care is measured solely by the degree of negligence, not any element of awareness. Whether the conduct involves an extreme degree of risk must be determined by the conduct and not by the resultant harm, so criminal liability cannot be predicated on every careless act merely because its carelessness results in death or injury to another.

        Under Strickland v. Washington, 466 U.S. 668, 694 (1984), and Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App. 2003), to establish IATC, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amend­ment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance, and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A reviewing court will not speculate as to the basis for counsel’s actions so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the rec­ord, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish IATC by a preponderance of the evidence. Almost total deference should be given to fact-findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.

There Will Be Blood

Introduction

The Court of Criminal Appeals’ recent decision in State v. Martinez has served to reinvigorate legal challenges to blood draws in intoxication cases. 2019 Tex. Crim. App. LEXIS 237, *1, 2019 WL 1271173–PD-0878-17. To fully understand and apply Martinez, it is necessary to understand the cases leading up to Martinez. It is important to recognize that these cases all deal with hospital blood draws in emergency-room cases, not consent or warrant cases. These cases do not impact consensual blood draws (“consent draws”). The warrant issue may be present in any non-consent case.

Important Predicate Cases

The interplay between the cases discussed below was vital to the Court of Criminal Appeals’ recent decision in Martinez. Knowledge of the facts and law discussed in each is essential to arguing motion practice based on Martinez.

(1) State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991) (plurality op.)

Comeaux was involved in a traffic accident and was taken to a hospital for treatment. Comeaux, 818 S.W.2d at 48. At the hospital, a sample of his blood was taken for medical purposes. Id. at 48–49. Tests done on the blood did not include analysis for blood-alcohol content. Id. at 49 [emphasis added]. The DPS trooper investigating the accident wanted a sample of blood from Comeaux, even though there was no suspicion that he had consumed any alcohol and the trooper did not believe he was intoxicated at the time of the accident. Id. at 48. The State obtained the sample and tested it at the DPS laboratory. Id. at 49, 50–51.

The trial court, the court of appeals, and a plurality of this Court concluded that Comeaux’s Fourth Amendment right was violated. Id. at 48, 53. Because Comeaux was a plurality opinion, it did not establish binding precedent. Hardy, 963 S.W.2d at 519.

Key facts:

  1. No BAC test by hospital
  2. No p/c to believe patient was intoxicated
  3. Patient not under arrest at hospital

(2) State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997)

Appellee (Hardy) was involved in an automobile accident on December 3, 1992. Trooper Authier of the Department of Public Safety investigated the scene and formed the opinion that appellee was intoxicated. Due to his injuries, appellee was subsequently “life-flighted” to a local hospital. During the course of treatment, the hospital drew blood from appellee and conducted a blood-alcohol test for medical purposes.

Important note: In its findings of fact and conclusions of law, the trial court found that blood was not taken from appellee in response to a request from Authier or any governmental agency. This matters.

In Hardy, the issue involved blood that was not only drawn by the hospital, but also tested by the hospital for blood-alcohol content. Id. at 518. The State did not obtain the blood in order to test it; instead, the State sought the hospital’s test results. Id. at 523–24.

There is no question that the drawing of blood from a person’s body infringes on an expectation of privacy recognized by society as reasonable. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989). Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy. Id. However, the present case does not involve the drawing or analysis of blood by government agents.

With regard to the blood-alcohol test results, appellee’s expectations of privacy could potentially have been implicated at three different stages: (1) the physical intrusion into his body to draw blood, (2) the exercise of control over and the testing of the blood sample, and (3) obtaining the results of the test. But in the first two stages, appellee’s expectation of privacy had already been frustrated by the actions of nongovernmental agents. The physical intrusion occurred, and the blood was tested by medical personnel for medical purposes. While appellee definitely possessed a privacy interest in the former, see Skinner (cited above), and may have possessed a privacy interest in the latter, see Comeaux (plurality opinion, cited above), those interests were frustrated by the actions of medical personnel. The only question remaining is whether appellee had a reasonable expectation of privacy at the third stage—his test results.

In reversing the suppression order, the CCA noted “in the case of blood test results obtained by subpoena, where the tests were conducted by medical personnel solely for medical purposes, the person’s interest in bodily integrity is not presented.”

Key facts:

  1. BAC test performed by hospital, not by government and not at request of government
  2. Pre-existing p/c to believe patient was intoxicated
  3. Patient not under arrest at hospital
  4. Blood results obtained via subpoena of pre-existing test records

(3) State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016)

The State obtained evidence of Appellee’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The trial court granted Appellee’s motion to suppress on two grounds relevant to Appellee’s current petition for discretionary review: 1) that obtaining Appellee’s medical records without a warrant violated the Fourth Amendment, necessitating suppression under both the federal exclusionary rule and Article 38.23 of the Texas Code of Criminal Procedure; and 2) that a misuse of the grand jury subpoena process caused the State’s acquisition of Appellee’s medical records to violate both state and federal law, also requiring suppression of the evidence under our state exclusionary rule, Article 38.23. See U.S. Const. amend. IV; Tex. Code Crim. Proc. art. 38.23.

On February 13, 2010, at approximately 2:00 o’clock in the morning, Appellee missed a curve and plowed his car into a cotton field. Lubbock County Deputy Sheriffs who responded to the scene detected the odor of alcohol on Appellee’s breath. They transported him to the Covenant Medical Center in Lubbock. While there, Appellee’s blood was drawn for medical purposes at 4:50 a.m. Later analysis of his blood revealed a blood-alcohol concentration of .219.

Department of Public Safety Trooper Troy McKee met with Appellee at the hospital at approximately 5:15 a.m. He also noticed the odor of alcohol on Appellee’s breath as well as other signs of alcohol ingestion. Appellee admitted to having had six or seven beers between 7:30 and 11:30 the previous evening. Appellee refused McKee’s request for a specimen of breath or blood for blood-alcohol analysis, and McKee did not attempt to compel one.

On March 30, 2010, based on McKee’s offense report, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena duces tecum to obtain Appellee’s medical records for the February 13th incident. The subpoena issued by the District Clerk to Covenant Medical Center required an employee of the hospital to appear before the grand jury, but stated that the hospital could comply by simply calling the District Attorney’s office, presumably to arrange delivery of Appellee’s medical records from that day to the Assistant District Attorney. No grand jury was actively investigating Appellee. Neither was any grand jury involved in the issuance of the subpoena, nor were the medical records required to be, nor ever actually were, returned to a grand jury.

On March 31, 2010, the day after the subpoena duces tecum issued, Appellee was formally charged by information with the misdemeanor offense of driving while intoxicated. Ultimately, the trial court ordered the blood draw suppressed. The State appealed, and the Seventh Court of Appeals reversed. Appellant (Huse) petitioned for discretionary review.

Hardy explicitly recognized that when the State itself extracts blood from a DWI suspect, and when the State conducts the subsequent blood-alcohol analysis, two discrete “searches” have occurred for Fourth Amendment purposes. Id. at 840. Unlike in Hardy, in which we withheld any opinion about an expectation of privacy in medical records in general, because the impact of HIPAA was at issue in Huse, we stated that
“[w]e have no doubt that HIPAA might support a broader claim that society now recognizes (if it did not already) that a patient has a legitimate expectation of privacy in his medical records in general. Id. at 841.

The State does not need to obtain a warrant to obtain the results of blood-alcohol testing by a hospital, performed for medical purposes, following a traffic accident. However, the continuing validity of Comeaux, representing Hardy’s second category, remained unaddressed. Then comes Martinez.

Key Facts:

  1. BAC test performed by hospital, not at direction of police
  2. P/c existed to believe patient was intoxicated
  3. Patient not under arrest at hospital

New law: State v. Martinez, 2019 Tex. Crim. App. LEXIS 237, *1, 2019 WL 1271173–PD-0878-17

Facts: Appellee (Martinez) was involved in a traffic accident. He was taken to a hospital where his blood was drawn for medical purposes. The blood was not tested for alcohol or controlled substances by the hospital. The State later acquired and tested the blood, both without a warrant. After a hearing on the Motion to Suppress, the trial court made the following findings of historical fact, to which both the Court of Appeals and Court of Criminal Appeals deferred:

1.   On February 5, 2014, Juan Martinez was transported by ambulance from the scene of a traffic accident to Christus Spohn Hospital in Beeville, Texas. The defendant was not under arrest.

2.   Nurse Gary Calloway testified that upon arrival to the hospital, “trauma procedures” were begun on the defendant, which included the taking of blood from the defendant by the nurse for medical purposes. The defendant was conscious during the blood draw, though not entirely coherent. There was testimony that defendant’s blood, as contained in the hospital vials, ceased to metabolize or change and that the passage of time would not change the results of a test on the drawn blood.

3.   Nurse Calloway testified that during the course of the “trauma procedures,” defendant became aware of his blood being drawn and was informed of the need for a urine sam­ple. Defendant told the nurse he could not afford any tests and needed to leave the hospital as his daughter was out in the parking lot. Defendant removed all monitors and IVs, got dressed, and ran out of the hospital.

4.   Trooper Quiroga testified that he arrived at the hospital shortly before the defendant left, but the Trooper was unaware the defendant was running away from the hospital and did not have the opportunity to speak with him before he fled. At no time was the defendant placed under arrest.

5.   Hospital staff told Trooper Quiroga that they had defendant’s blood. Trooper Quiroga testified that he told the hospital not to destroy the blood and proceeded to obtain a grand jury subpoena from the Bee County District Attorney’s Office to gain possession of defendant’s blood.

6.   Upon presentation of the grand jury subpoena, the hospital released defendant’s blood (four vials) to an agent of the Department of Public Safety—Trooper Keese. The hospital’s representative testified as to their lab procedures and stated that the hospital had no policy in place to show a chain of custody on the vials of blood. There was no documentation as to the chain of custody for the vials of blood while in the hospital’s care and control. It was testified that the blood was not tested by the hospital and there were no medical records indicating a test of the drawn blood. (This is an important fact.)

7.   Upon receipt of the vials of defendant’s blood, Trooper Keese immediately placed it in a DPS box (standard DPS blood kit) and mailed it, using the U.S. Postal Service, to the DPS lab in Austin, Texas, for testing.

Based upon those factual determinations, the trial court made the following conclusions of law:

1.   The Court finds the seizure of the defendant’s blood from the hospital and subsequent search of that blood by the DPS lab constitute a search and seizure within the scope of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution.

2.   The initial seizure of Juan Martinez’s blood from the hospital by the State using a grand jury subpoena was a valid seizure.

However:

3.   The search of the blood was performed without the necessary search warrant. The blood had been drawn and was no longer subject to mutation or metabolization. Further, the blood was in the possession of the DPS and not subject to destruction. There were no exigent circumstances to justify a search of the blood without a warrant.

4.   The search of the blood, and the subsequent blood test results, are found to be inadmissible at this time.

Conclusions 2 and 3 are the most important for litigating a Martinez issue. Conclusion 3 is also relevant to the possibility of a “staleness” argument if the test is not done within 10 days of the warrant issuing.

Interestingly, this case was neither briefed nor argued by the State Prosecuting Attorney’s Office.

The State’s Theories:

Abandonment

In affirming the suppression order, the Court rejected the State’s (unsupported) argument that the blood had been “abandoned” by Appellee. The factual briefing behind this assertion was woefully inadequate. Note, the Court did not per se rule out a future abandonment theory were the same to be adequately briefed. Expect the State Prosecuting Attorney’s office to try to revive this argument with better merits briefing.

Third-Party Doctrine

The Court also rejected the State’s “third-party doctrine” argument, usually a favorite of the Court to affirm a conviction on arguably tainted evidence. The State’s brief quoted a definition of the third-party doctrine but did not provide any further explanation or argument as to how or why the quoted language applies in this case. To the extent that the State relied upon the third-party doctrine to argue that whatever privacy interest Appellee may have had in his blood was defeated by the doctrine, the CCA determined the doctrine is inapplicable to blood draws without a warrant.

Martinez’s theories

HIPAA

The HIPAA analysis in this opinion is not very detailed because the argument wasn’t raised in the intermediate appellate court. A violation of HIPAA will be a factor in the reasonable expectation of privacy analysis but is not likely to be an independent ground to exclude results (HIPAA provides only for a civil, not evidentiary, penalty). See Sims v. State, 2019 WL 208631 (Tex. Crim. App. Jan. 16, 2019)(PD-0941-17)(holding that evidence may only be excluded for constitutional violations and statutory violations where the statute specifically provides for an exclusionary remedy. Because neither the Stored Communications Act nor the Texas equivalent provide for exclusion, and there was no constitutional violation [debatable], the unlawfully obtained evidence is not subject to suppression).

Reasonable Expectation of Privacy

Appellee cites the Supreme Court’s opinion in Birchfield v. North Dakota, in which the Supreme Court examined warrantless breath and blood testing incident to arrest for drunk driving. Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016). The Supreme Court held that warrantless breath testing incident to arrest was permissible, but warrantless blood testing incident to arrest was prohibited by the Fourth Amendment. Id. at 2184. In reaching these separate conclusions, the Court emphasized the limited scope of information that could be obtained from a breath test:

[B]reath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification purposes . . . the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more.

Id. at 2177. As for the scope of information that could be obtained from a blood test:

[A] blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.

Id. at 2178.

The Supreme Court considers the analysis of biological samples, such as blood, to be a search infringing upon privacy interests subject to the Fourth Amendment. The second category we recognized in Hardy, the State’s exercise of control over and testing of a blood sample, constitutes a search. This is consistent not only with the privacy concerns mentioned by the Supreme Court in Birchfield and Skinner, but also with Skinner’s characterization that chemical analysis was a “further” invasion of privacy interests and that collection and testing were “intrusions” (plural) that constituted “searches” (plural). Skinner, 489 U.S. at 616, 617; see also Huse, 491 S.W.3d at 840 (State’s blood-alcohol analysis is a separate search discrete from State’s drawing of blood). Practice note: the use of the plural for “intrusions” and “searches” is important.

The Court adopted the Comeaux plurality reasoning, finding that it reached the correct result. There are private facts contained in a sample of a person’s blood beyond simple confirmation of suspicion that a person is intoxicated. These private facts are those that a person does not voluntarily share with the world by the mere drawing of blood and may be subject to Fourth Amendment protection. The Court held that there is an expectation of privacy in blood that is drawn for medical purposes. (NOTE: This says drawn for medical purposes and will not extend a reasonable expectation of privacy to blood tested for medical purposes.) The expectation is not as great as an individual has in the sanctity of his own body against the initial draw of blood. Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (compelled physical intrusion beneath the skin and into the veins to obtain a sample of blood for use as evidence in a criminal investigation “implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’”) (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)); Hardy, 963 S.W.2d at 526. Great! Right? Well, don’t get too excited: [The expectation of privacy] is greater than an individual has in the results of tests that have already been performed on the blood. Individuals in the latter case have, as we held in Hardy and Huse, no expectation of privacy. Hardy, 963 S.W.2d at 527; Huse, 491 S.W.3d at 842.

Key Facts:

  1. No BAC test by hospital
  2. Not under arrest when at hospital
  3. Specific revocation of consent to treatment
  4. No chain of custody kept

What Does It All Mean?

Some of the key questions arising after the Martinez decision will require further litigation. The opinions below are mine.

Issue 1: Does the State need two (2) warrants to test the blood?

No. The number of warrants is not important. The content of the warrant is important. Can the State get two warrants? Certainly. Do they need to get two warrants? If the warrant for the drawing of the blood also authorizes the testing of the blood, then no. If the warrant only authorizes taking the blood, but not testing the blood, then YES, a second warrant is necessary. Does the State need a second warrant in every case? No.

Issue 2: Staleness of the blood testing warrant.

“Staleness” is a legal doctrine provided for in Article 18.07 of the Code of Criminal Procedure that requires evidence be tested within a certain time frame. This issue is much closer than the number of warrants and appears to be a question of first impression.

Article 18.02(10) and 18.01(j) combine to form the basis for the ability to obtain a warrant for evidence contained in a person’s blood. Then, Article 18.07(a) provides for the base-level timelines, providing:

The period allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is: (1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; or (2) 10 whole days if the warrant is issued under Article 18B.354; or (3) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1) or (2).

Tex. Code Crim. Proc. Ann. art. 18.07(a).

This appears, on its face, to allow for a staleness argument. However, as the CCA observed in Jones v. State, “evidence of ongoing criminal activity will generally defeat a claim of staleness.” 364 S.W.3d 854, 861 (Tex. Crim. App. 2012) (quoting United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001)). See State v. Cuong Phu Le, 463 S.W.3d 872 (Tex. Crim. App. 2015)(ongoing grow operation). Because the removal of the blood from the body terminates the natural metabolic processes that would otherwise destroy the evidence, the court could determine that the blood vial represents “ongoing” evidence of criminal activity that will not materially alter or degrade over time. This could, at least in theory, defeat a staleness argument.

State v. Dugas, 296 S.W.3d 112 appears to be the first staleness case on blood warrants. There, the Houston Court of Appeals (14th Dist) reversed a suppression order, rejecting the theory that the information was stale. State v. Dugas, 296 S.W.3d 112, 117 (Tex. App.—Houston [14th Dist.] 2009). Cf Crider v. State, 352 S.W.3d 704, 711 (Tex. Crim. App. 2011)(blood search affidavit must contain sufficient facts within its four corners to establish probable cause that evidence of intoxication would be found in appellant’s blood at the time the search warrant was issued. This, however, only requires the evidence be present at the time of issuance of the warrant and would not alter the timeline for executing the warrant.)

Crider, infra, will be the standard the various courts of appeals use to rule on a staleness argument. Note, here, the difference between staleness to draw the blood and staleness to test that blood. Alcohol in a person’s bloodstream disappears quite rapidly, thus the facts cited to support probable cause to search for alcohol in a DWI suspect’s bloodstream become stale quite rapidly. Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later. . . . This is enough to draw the blood, but it may not be enough to test the blood. The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. . . . [I]t would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectable level of alcohol in his blood. Crider at 708–09 (citations omitted).

However, once removed from the body, the blood is no longer subject to metabolization. Because properly preserved blood may be accurately tested for quite some time, a staleness argument on the test warrant (if separate from the draw warrant) may not be as open and shut as some practitioners would hope.

Rejecting a staleness argument is also consistent with the Court’s tendency towards practicality in the application of rules governing application of the Code of Criminal Procedure. Recall, the existence of the automobile exception pre-dates the invention of two-way radio communication. The automobile exception was a recognition of the impossibility faced by a peace officer in the field at the time. They could either go get a warrant or they could stay with the suspect. Doing both was, literally, impossible. While necessary, indeed maybe even indispensable, for police work in the 1920s to the ’40s, the advent of in-car computers, cellular phones, and instant communication have completely removed the impossibility of securing a suspect while simultaneously obtaining a warrant. Even so, the automobile exception remains. This practicality is likely to be the reason the Court refuses to apply staleness to blood-test warrants. DPS cannot turn tests around that quickly. Absent a massive increase in funding and personnel, they will never be able to do so. Recognizing this practicality, the Court may be very hesitant to apply “staleness” to blood-test warrants.

Issue 3: Standing/Ability to contest search

This is likely the strongest takeaway from the Comeaux, Hardy¸ Huse, Martinez line of cases—and is the most direct linkage between the cases. In Comeaux and Martinez, no BAC testing was done by the hospital. In Hardy and Huse, the hospital drew and tested the blood. This distinction matters.

The Fourth Amendment does not apply to a search or seizure, even an arbitrary one, “effected by a private party on [its] own initiative,” such as the one that the hospital conducted in the context of treating [Skinner]. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)[emphasis added]. Thus, a defendant has no standing to (and cannot now) complain of either the blood extraction or the blood-alcohol analysis themselves when conducted by a non-governmental entity. Huse at 840. The Court has already decided that there is no standing to contest the hospital’s actions where the hospital is not a state actor. However, this rule does not apply when the hospital is a state actor. “Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 63, (1989). See also United States v. Jacobsen, 466 U.S. 109, 113–114 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).

Conclusion

Below is a table of the case law discussed in this article. Blood draws are a reality and occur with a great deal of regularity these days. Get a good grasp on the issues, anticipate the State’s likely arguments, and don’t be afraid to litigate these blood-draw cases.

Starting at the End: The Court’s Charge to the Jury

I. Introduction

Handling appeals can be frustrating. It’s frustrating when there is error but it’s harmless. It’s frustrating when the appellate court cites waiver. But good news! Jury charge error is still alive and well. If you remember nothing else from this article, just remember to object to the court’s charge every chance you get.

II. Before you Begin, Start at the End

It is commonly referred to with tiresome clichés such as “road map,” “directions,” and “instructions” for the jury. It is familiar to every trial lawyer. The court’s charge to the jury is a specific set of legal instructions given by the judge. It is the law the jury will apply to the facts of the case. The court’s charge to the jury is where affirmative defenses, definitions, justifications, lesser-included offenses and limiting instructions are found.

The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.”1 However, while the Code of Criminal Procedure imposes the duty of delivering the charge on the trial court, in reality the trial court typically has the lawyers draft and agree (as far as possible) upon a charge. Therefore, it is incumbent upon the criminal defense lawyer to begin every case with a draft of the charge. This means researching the law and, at a minimum, all applicable statutory defenses and justifications, long before trial. Doing so can help reveal the theme of the case and any potential minefields. Preparation is key. After all, success is determined long before you step foot in the courtroom. It is too late to start focusing on the jury charge at the close of evidence. Begin with the end in mind.2

III. Initial Considerations

Although the jury charge does not come until the very end of the case, it is a mistake not to discuss it until the end of the case. In jury selection, it is worthwhile to point out that the law applicable to the case at hand is so important that, before deliberations begin, the judge will not only provide the jurors with a copy of the law but also read the law to the jury. The law is that important. If possible, obtain a copy of a charge the judge has given in a similar case prior to the start of your case. Weave in some applicable portions of law, verbatim, in jury selection with the knowledge that it will be reinforced by the judge at the close of the case. Then, in closing, remind the jury that you anticipated that the law would be just as discussed in jury selection. This is an especially valuable practice point for affirmative defenses, justifications and special jury instructions.

IV. Applicable Statutory Law

The Code of Criminal Procedure lays out the requirements for the jury charge. Specifically, articles 36.14 through 36.19 address different aspects of the court’s charge to the jury. Every criminal defense trial lawyer should be very familiar with these articles.

1. Article 36.14: Charge of the Court

Article 36.14 requires that before counsel argues to the jury in a criminal trial, “the judge shall…deliver to the jury…a written charge distinctly setting forth the law applicable to the case.” Article 36.14 specifically prohibits the trial court from commenting on the evidence “expressing any opinion as to the weight of the evidence, summing up the evidence, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”3 This is, of course, because the trial court is required, by law, to be neutral and detached.

An instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper comment on the weight of the evidence.4 That is because “[d]espite the legal accuracy of the instruction” it can improperly “single out a specific type of evidence”5 and “risk[s] impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential the preservation of their liberties.’”6

However, there are three circumstances when it is permissible for the charge to single out evidence. First, when the law identifies a statutory presumption, reference in the charge is permissible. For instance, in a deadly conduct prosecution, it would be proper for the charge to inform the jury that recklessness and danger may be presumed if the actor knowingly points a firearm at another whether or not the actor believed the firearm to be loaded.7 Similarly, the trial court should instruct the jury on the statutory presumption of reasonableness in self-defense cases if applicable.8 Second, the trial court may instruct the jury about evidence that is admissible contingent upon certain predicate facts that are up to the jury to decide. The quintessential example of this is an article 38.23 instruction. Third, when the law directs the jury to attach a certain degree of weight or limited significance to certain evidence an instruction in the charge is proper. Limiting instructions, discussed infra, are a perfect example of the final scenario.

Article 36.14 also addresses the role of the defense lawyer with regard to the court’s charge. Article 36.14 mandates that “[b]efore the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same.” What is “reasonable” is subjective, though. It likely depends on the complexity of the case, nature of the offense, any defense, and the experience of the lawyer. Therefore, it is good practice to put on the record the precise time when you receive the initial charge and exactly how much time was allotted by the court to examine the charge. Always request more time if needed as the court’s charge to the jury is typically always a ripe area for potential appellate issues.

Preservation of error in the court’s charge is also addressed in Article 36.14. At the outset, article 36.14 requires that the defense “shall present his objections thereto in writing, distinctly specifying each ground of objection.” However, it goes on to say that “[t]he requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury.”9 Therefore, written objections simply are not necessary. It is helpful, however, to write out all potential objections to the charge and special requests to be included in the charge before trial. A good practice point is to have a folder dedicated solely to the jury charge and include a list of potential objection and special requests, as well as supporting case law. This is an area where we can prepare well in advance.

It is necessary that any objection to the court’s charge be sufficiently specific. For instance, requesting “the charge on self-defense, standard form” will not suffice to preserve error since there are several different types of self-defense.10 However, the Court of Criminal Appeals has held that “[t]he requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge.”11 The better practice to avoid any waiver argument on appeal is obviously to make the objection(s) as specific as possible. Finally, and interestingly, regarding objections to the charge of the court, by the specific unambiguous terms of Article 36.14, only the defense can object to the charge; the State cannot.12

2. Article 36.15: Requested Special Charges

A special charge is simply a requested jury instruction that is not contained in the general charge of the court. Either the state or the defense is allowed to request a special charge according to Article 36.15. As with objections to the court’s charge under Article 36.14, Article 36.15 requires that the requested special charge be in writing. However, Article 36.15 also states that the writing requirement is satisfied if the request is dictated in the record in the presence of the state and the court. It is clear, then, that objections or special requests to the charge do not have to be in writing if they are clearly spoken into the record.

Article 36.15 also addresses both errors and omissions in the court’s charge. As long as the defense calls the trial court’s attention to the error and/or omission in the charge nothing further is required to properly preserve error.13 It is also not necessary that the requested special charge be entirely correct; it simply must put the court on notice.14 The ball is then in the trial judge’s court. “[N]o exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.”15 However, again, it is good practice to have a list of all special requests and supporting case law on hand.

3. Article 36.16: Final Charge

The charge is so important that the law requires it to be both read to the jury and given to the jury in writing for use during deliberations. The requirement that the judge reads the final charge to the jury is contained in Article 36.16. Supplemental charges are also addressed in Article 36.16.16 There are only three situations in which a supplemental charge is permissible. A supplemental charge can be given based on (1) the improper argument of counsel; (2) on request of the jury; or (3) when the judge, in his discretion, permits the introduction of other testimony.17 Other than these specific situations, the law does not permit the giving of supplemental charges. If a supplemental charge is given, Article 36.16 directs that the defense shall present objections in the manner prescribed by Article 36.15.

4. Article 36.17: Charge Certified by Judge

Article 36.17 is straightforward. It requires the final charge to be certified and filed among the papers in the case. This is obviously so the jury charge can be reviewed by the appellate court. This is also the reason that if multiple copies of the charge are given to the jury, the trial judge instructs the jury not to write on the original copy except for the foreperson’s signature on the verdict form.

5. Article 36.18: Jury May Take Charge

Article 36.18 is also simple. By its terms, the jury may take a copy of the charge to the jury room after it has been filed. The jury is not permitted to take any charge or part of a charge which was not given by the trial court.18 As a practical matter, the jury should not even be aware that a special charge was requested and denied since the charge conference occurs outside the presence of the jury. Such a charge simply will not appear in the final version read to the jury.

6. Article 36.19: Review of Charge on Appeal

Error in the jury charge is unique among other possible trial errors in that the legislature codified the standard of review on appeal for such error in the Code of Criminal Procedure. Article 36.19 specifically states that the judgment shall not be reversed based on error stemming from a violation of the preceding Articles “unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” A more detailed discussion of the standard of review on appeal for errors in the court’s charge follows. It cannot be said enough – object!

V. Basics of a Jury Charge

There are several basic instructions contained in every jury charge. Some of these instructions are the constitutional principles upon which our criminal justice system is premised – the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. The judge will read all the instructions to the jury. Listen and read the jury charge carefully. This is not the time to go on autopilot or zone out. Pay special attention to these instructions regarding the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. The words are powerful, they help the accused, and they will have instant credibility with the jury having come from the judge.

The charge will generally track section 2.01 of the Texas Penal Code which sets out the constitutional requirements of the presumption of innocence and proof beyond a reasonable doubt:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

The charge also informs the jury that the charging instrument (indictment/information) itself is no evidence of guilt.19 The charge should also specifically tell the jury that the accused is presumed innocent of the charge(s), that all persons are presumed innocent, and that the law does not require the accused to prove his innocence or produce any evidence at all. Finally, the charge should direct the jury that the presumption of innocence alone is sufficient to acquit. 

Along with the presumption of innocence, the jury will be instructed on the Fifth Amendment Constitutional right to remain silent. The jury will be told that an accused’s decision not to testify cannot be held against him and is no evidence of guilt. The jury will be told not to guess, speculate, allude to or even talk about what the accused might have said if he did testify.

The charge should also tell the jury that the burden of proof throughout the trial is always on the state and that the state is required to prove every element of the offense beyond a reasonable doubt. The charge directs the jury to find the accused not guilty if the state does not prove every element of the offense beyond a reasonable doubt. However, the charge is not required to include a definition of “reasonable doubt.”20 And courts have held it is not error to distinguish beyond a reasonable doubt from “all possible doubt.”21

In addition to the aforementioned constitutional principles, there are several other basic topics that should be addressed in every jury charge. For instance, a correct charge will always include an application paragraph applying the law to the facts of the case.22 The purpose of the application paragraph is to apply the relevant law, definitions found in the abstract, and general legal principles to the particular facts of the case.23 Because the application paragraphs specify the factual circumstances under which the jury should convict or acquit they are the heart and soul of the jury charge.24 A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues.25

It will also instruct the jurors that they are the exclusive fact finders; that they judge the believability of witnesses and weight to be given to their testimony.26 The charge will also inform the jury what the evidence is and is not. For instance, statements made by the lawyers are not evidence. Conversely, evidence is testimony and admitted exhibits. Sometimes the charge will inform the jury about their access to evidence in accordance with articles 36.25 and 36.28 of the Code of Criminal Procedure. The charge will also lay out some ground rules for deliberations and inform the jurors how to complete the verdict forms.

VI. Other Instructions

Typically, judges have standard jury instructions pre-prepared in accordance with the foregoing and simply add to said instructions. What follows are some of the other instructions that are common in the court’s charge to the jury.

a. Defensive Issues

It is well-settled that a trial court must instruct the jury on all of the law applicable to the case.27 An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence.28 This is true regardless of whether the evidence is strong or weak, un-impeached or contradicted, and regardless of whatever the trial judge may think about the credibility of the evidence.29 This rule is designed to ensure that the jury, not the judge, will decide the relative credibility of the evidence.30 But if the defensive theory is not explicitly listed in the penal code—if it merely negates an element in the State’s case, rather than independently justifying or excusing the conduct—the trial judge should not instruct the jury on it.31

However, article 36.14 imposes no sua sponte duty on the trial court to instruct the jury on unrequested defensive issues.32 Therefore, it is incumbent upon the practitioner to always request instructions on any potentially applicable defenses. However, if the trial court does sua sponte issues a defensive instruction but fails to properly apply it then it is error even if the defendant does not object.33 To fail to instruct the jury on the law applicable to a particular case, when requested to do so, is error. Therefore, it is vitally important to think about the charge at the beginning of a case in order to formulate special requested defensive instructions.

b. Lesser-Included Offense Instructions

It is important to know from the very beginning if you will be requesting an instruction on a lesser-included offense. Lesser-included offense instructions pose a unique decision – give the jury several options and hope for a compromise or try the case on an all-or-nothing basis? If you think about the jury charge first, you will be able to strategically tailor [at least certain aspects of] the trial to the end result – a special requested charge on a lesser-included offense.

Lesser-included offense instructions are not automatically included in the court’s charge. Such a charge is required if the offense constitutes a lesser-included offense, and the lesser included offense must be raised by the evidence at trial.34 Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of a lesser-included offense.35 A defendant’s testimony alone is sufficient to raise the issue entitling him to a charge on a lesser-included offense.36

Either the state or the defense may request an instruction on a lesser-included offense when it is appropriate to do so.37 There is even some authority upholding a trial court’s sua sponte submission of a lesser-included instruction in the absence of a request from either side.38 When inclusion of a lesser-included offense is incorrectly refused by the trial judge, a finding of harm is essentially automatic, according to the Court of Criminal Appeals.39  

c. Limiting Instructions

The basis for limiting instructions is Rule 105 of the Texas Rules of Evidence. By its terms evidence can be admissible for a limited purpose or against a particular party. Most commonly, a limiting instruction is required where the State offers extraneous offense evidence. There are other situations wherein limiting instructions are appropriate, too.40

The limiting instruction must be requested and read to the jury at the time the jury first hears the evidence pertaining to the instruction and every time thereafter. A limiting instruction is required in the charge when evidence has been admitted for only a limited purpose.41 This is true regardless of whether the limiting instruction occurs in a guilt ot punishment phase of a trial.42 However, the court is under no obligation to include a limiting instruction in the charge where such an instruction was not requested when the evidence was first presented.43 In such an instance, the evidence is admissible for all purposes.44 This is so because Texas courts have frequently reasoned that the decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy.45 Additionally, “this doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not.”46

For purposes of preserving error if the trial court refuses to provide a limiting instruction, request a special charge under Article 36.15 and also object to the omission of said instruction under Article 36.14. Again, be prepared with an appropriate limiting instruction that can be read into the record or filed with the court. Bottom line: object and request every time.

d. Exclusionary Rule

The Texas exclusionary rule, embodied in “article 38.23(a), is mandatory. Article 38.23(a) provides that when evidence is presented at trial that raises an issue of whether evidence was legally obtained, “the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of the Article, then and in such event, the jury shall disregard any such evidence obtained.” Therefore when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly.”47 Only “when there exists a factual issue that evidence was obtained in violation of the Constitution or law of the State of Texas, or of the Constitution or laws of the United States of America” is the exclusionary instruction required.48 A defendant must show three things in order to receive an article 38.23 jury instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.49

e. Voluntariness of Confession

The trial court is required to instruct the jury where the issue of voluntariness of a confession is raised by the evidence according to art. 38.22, Sec. 7 of the Code of Criminal Procedure. However, before the requested instruction is required, some evidence must be presented to the jury which raises the issue of voluntariness.50

f. Special Issues – Deadly Weapons

There are certain special issues that are not elements of an offense. For instance, whether or not a deadly weapon was used or exhibited. So, the question thus becomes when and how to submit these issues to the jury.

The state, of course, is not entitled to a jury charge on a deadly weapon unless an accused is actually given notice by indictment or otherwise of the alleged use of a deadly weapon.51 Even if a separate special issue regarding the use of deadly weapon is not submitted to the jury, as long as it was alleged in the indictment and the jury finds the defendant guilty as charged, the trial court can still enter a deadly weapon finding.52

The Court of Criminal Appeals addressed the proper place for the deadly weapon special issue in Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996). In Hill, the Court noted that Article 37.07 of the Code of Criminal Procedure implicitly requires the deadly weapon issue to be submitted at the guilt/innocence stage so that the trial court will know which parole law instruction to give the jury during the punishment phase. The better practice is to submit the deadly weapon special issue charge at the guilt/innocence phase of the trial.

VII. Defining Terms in the Charge

The trial court is required to give the jury a written charge setting forth the law applicable to the case.53 This requires that the jury be instructed concerning each element of the offense or offenses charged. It also requires that each statutory definition that affects the meaning of an element of the offense be given to the jury.54 If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury.55 However, only the applicable portions of any definition should be included in the charge.56 A trial court generally errs if it goes beyond the statutory definition.57 Regarding undefined terms, section 311.011 of the Government Code provides that statutorily undefined words and phrases shall be “construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning …shall be construed accordingly.”

For example, it is error for a trial court to include a definition of “affirmative links” in a jury charge.58 Whereas “possession” is specifically defined in the Penal Code “affirmative links” is not so defined. Rather, an analysis of affirmative links “is only a shorthand expression for evaluating the sufficiency of the evidence.”59 “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.”60

VIII. Jury Unanimity

Texas statutory and constitutional law requires a unanimous jury verdict in all criminal cases.61 More specifically, “the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases.62 The requirement is a complement to and helps in effecting the beyond a reasonable doubt standard.63 At a very basic level it means that every juror must agree that the accused committed the same, single, specific criminal act. When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.64

The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents.65 To guarantee unanimity when the State is not required to elect between aggravating circumstances, “the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.66

Often times, unanimity issues are difficult to spot. The most common types of cases in which jury unanimity is most frequently an issue are sexual offenses because there are typically multiple counts and/or multiple alleged acts within counts. That is why it cannot be overstated that preparation at the outset of a case is absolutely necessary.

IX. Nature of the Conduct v. Result of the Conduct

Section 6.03 of the Penal Code sets out four culpable mental states – intentionally, knowingly, recklessly, and criminally negligently; two possible conduct elements – nature of conduct and result of conduct; and the effect of the circumstances surrounding the conduct. In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense.67 When specific acts are criminalized because of their very nature, a culpable mental state must apply to the committing act itself.68 On the other hand, unspecified conduct that is criminalized because of its result requires culpability as to that result.69 A trial court errs when it fails to limit the language in regard to the applicable culpable mental states to the appropriate conduct element.70

X. Preserving Error

As a threshold matter, all alleged jury charge errors must be considered on appellate review regardless of preservation in the trial court.71 Failure to properly preserve error, however, affects the harm analysis. To properly preserve error, all objections to the charge must be made before the charge is read to the jury.72

As discussed previously, the Code of Criminal Procedure provides two ways to object to the court’s charge to the jury.73 One way, according to Article 36.14, is to object to it on the basis of either an omission or an inclusion of something that does not belong. The other, under Article 36.15, is to request an instruction.

In Almanza, the Court of Criminal Appeals held that Article 36.19 of the Texas Code of Criminal Procedure prescribes the manner in which jury charge error is reviewed on appeal.74 The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved. Therefore, the first step is to determine if the error was preserved.

Concerning error that was preserved at trial by a timely and specific objection, such error must have been “calculated to injure the rights of [the] defendant.”75 In other words, a defendant must have suffered “some” actual, rather than theoretical, harm from the error.76 However, the Court of Criminal Appeals has held that in the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction.77 Therefore, cases involving preserved charging error will be affirmed only if no harm has occurred.78

When charge error has not been preserved at trial by a timely and specific objection, a greater degree of harm is required to warrant reversal. “Egregious” harm is required. “Errors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.

As in the case of assaying harm after jury charge error, the Court of Criminal Appeals has ruled that neither an Appellant/Defendant nor the State bears the burden of persuasion to show harm following non-constitutional error under Rule 44.2(b).79 In this regard, the Court of Criminal Appeals in Johnson followed its prior decision in Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), wherein the Court in the latter case explained that:

[w]e do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, as the dissent would have it. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless-error decision.

The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred. At that point, the court makes its own assessment as to what degree of likelihood exists as to that prejudicial or non-prejudicial impact and then applies to that assessment the likelihood-standard of the particular jurisdiction.

In assessing any harm that occurred, the reviewing court considers several factors including the charge as a whole, the state of the evidence, including the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.80

XI. Conclusion

Whether it is true or not, to a jury, the trial judge is the foremost authority on the law. Juries look to the judge for guidance and see the judge as the smartest person in the room. After all, the judge is giving the jury instructions from the moment they walk into the courtroom, and all parties treat the court with reverence. If it is written or spoken by the judge it is regarded as the truth. Jury instructions from the judge are the judicial gospel to the jury. Therefore, we need our hands in its penmanship so that the judicial gospel the jury hears from the bench will actually be one written by you. And above all, if you think you should object, object!

Endnotes

1. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2009).

2. Covey, The 7 Habits of Highly Effective People, Habit 2.

3. Tex. Code Crim. Proc. 36.14.

4. Kirsch, 357 S.W.3d at 651; see also Brown v. State, 123 S.W.3d 794 (Tex. Crim. App. 2003) (holding it was an improper comment on the weight of the evidence in violation of Article 36.14 to instruct the jury that it could infer the defendant’s intent by his acts done and the words spoken but finding such error harmless).

5. Id. (internal citations omitted).

6. Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (internal citation omitted).

7. Tex. Penal Code §?22.05(c).

8. Tex. Penal Code §?9.32.

9. Id.; see also Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.—Corpus Christi 1983, pet. ref’d) (“Appellant’s objection to the charge was made after the court read the charge to the jury and the jury retired to the deliberation room. The objection, not having been made before the charge was read to the jury, is not timely made and cannot be considered on appeal.”).

10. Reece v. State, 683 S.w.2d 873 (Tex.App.—Houston [14th Dist.] 1984, no pet.).

11. Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996).

12. The State can, however, ask for requested special charges under Article 36.15. See infra.

13. Tex. Crim. Proc. art. 36.15; see also Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (“[U]nder art. 36.15, if the defendant requests a special charge no objection is required to preserve error. All that is necessary . . . is that the requested charge be in writing or dictated to the court reporter.”); Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (“requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge”).

14. Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (“[A]ppellant’s requested charge was clearly incorrect: it misstated the law and constituted an impermissible comment on the evidence. The record shows, however, that despite the obvious errors in the requested charge, the trial court understood that appellant was objecting to the omission of an instruction regarding the officer’s right to stop the vehicle. Thus, the trial court was apprised of appellant’s objection to omissions in the charge.”).

15. Id.

16. Most commonly, the supplemental charge is a dynamite or Allen charge given when, in the opinion of the court, the jury is deadlocked.

17. Tex. Crim. Proc. art. 36.16.

18. Tex. Crim. Proc. art. 36.18.

19. However, a trial court is probably not required to tell the jury that the charging instrument is not evidence. See Committee on Pattern Jury ­Charges—Criminal—of the State Bar of Texas, Texas Criminal Patter Jury Charges C2.1 (2011) (citing Magness v. State, 244 S.W.2d 810 (Tex. Crim. App. 1952) (“Though the trial court might well have given the requested charge [that the information filed against him was no evidence of his guilt], we are unable to agree that his failure to do so was prejudicial to the rights of appallant.”)). The Committee on Pattern Jury Charges—Criminal believes such an instruction should be included in the court’s charge, though. Id.

20. Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

21. Infante v. State, 397 S.W.3d 731 (Tex. App.—San Antonio 2013, no pet.); Rodriguez v. State, 96 S.W.3d 398, 405 (Tex. App.—Austin 2002, pet. ref’d) (where identical language submitted there wasn’t even “some harm” from the instruction); Watson v. State, No. 03-19-00015-CR (Tex. App.—Austin 2019) (same).

22. Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996) .

23. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).

24. Id. at 367. (internal citation omitted).

25. Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977).

26. Articles 38.04 and 36.13 of the Texas Code of Criminal Procedure address the role of jurors as judges of fact.

27. Tex. Code. Crim. Proc. art. 36.14.

28. Arnold v. State, 742 S.W.2d 10 (Tex. Crim. App. 1987); Williamson v. State, 672 S.W.2d 484 (Tex. Crim. App. 1984); Moon v. State, 607 S.W.2d 569 (Tex. Cr. App. 1980); Garcia v. State, 605 S.W.2d 565 (Tex. Cr. App. 1980); Warren v. State, 565 S.W.2d 931 (Tex. Cr. App. 1978); Sanders v. State, 707 S.W.2d 78 (Tex. Crim. App. 1986); Rogers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) (trial court’s refusal to instruct on necessity and self-defense was harmful).

29. Arnold, supra.; Warren, supra.; Sanders, supra.; Shaw v. State, 510 S.W.2d 926 (Tex. Cr. App. 1974); Perez v. State, 172 S.W.2d 314 (Tex. Cr. App. 1943).

30. Jenkins v. State, __ S.W.3d __, 2015 WL 3543130 (Tex. App.—Houston [14th Dist.] 2015, pet granted).

31. Id. at *13 (internal citation omitted).

32. Posey v. State, 966 S.W.2d 57, 59 (Tex. Crim. App. 1998).

33. Mendez v. State, 545 S.W.3d 548 (Tex. Crim. App. 2018).

34. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981).

35. Id.

36. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985).

37. Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987); Willis v. State, 761 S.W.2d 434, 436 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d) (a lesser included offense instruction may be submitted over the defendant’s objection).

38. McQueen v. State, 984 S.W.2d 712, 717 (Tex.App.—Texarkana 1998, no pet.).

39. Saunders v. State, 913 S.W.2d 564, 571 (Texas. Crim. App. 1995).

40. Evans v. State, 500 S.W.2d 846, 850 (Tex. Crim. App. 1973) (co-defendant’s confession may not be considered as evidence of a defendant’s guilt, and an appropriate limiting instruction should be given in that instance); offense admitted to prove intent, knowledge, etc.

41. Johnson v. State, 509 S.W.2d 639 (Tex. Crim. App. 1974); Hitcock v. State, 612 S.W.2d 930 (Tex. Crim. App. 1981); Escovedo v. State, 902 S.W.2d 109 (Tex.App.—Houston [1st Dist.] 1995).

42. Smith v. State, No. PD-0715-17 (Tex. Crim. App. 2019) (failure to properly limit an 8.04(a) voluntary intoxication instruction to extraneous conduct in punishment trial required reversal).

43. Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007); Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008).

44. Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001).

45. See, e.g., Ryan v. State, 937 S.W.2d 93, 104 (Tex.App.—Beaumont 1996, pet. ref’d) (citing Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.—Beaumont 1994, no pet.)).

46. See Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999).

47. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).

48. Maldonado v. State, 998 S.W.2d 239, 246 (Tex. Crim. App. 1999).

49. Madden v. State, 242 S.W. 3d 504, 510 (Tex. Crim. App. 2007).

50. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994).

51. Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987).

52. Edwards v. State, 21 S.W.3d 625 (Tex.App.—Waco 2000).

53. Tex. Crim. Proc. art. 36.14.

54. 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure 36.11, at 536 (Texas Practice 1995).

55. Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012); Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007).

56. Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (only the portion of the definitions of culpable mental state that applies to the case should be included in the charge).

57. Wright v. State, 704 S.W.2d 129, 131 (Tex.App.—Corpus Christi 1986, reh’g denied); Kirsch, 357 S.W.3d 645 (jury instruction defining the word “operate” was error).

58. Deener v. State, 214 S.W.3d 552, 530 (Tex.App.—Dallas 2007, reh’g overruled).

59. Id.

60.  at 529.

61. Tex. Code Crim. Proc. art. 36.29, 37.02, 37.03, 45.034–36; Tex. Const. Amend. Art. V, sec. 13.

62. Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (internal citation omitted).

63. See United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir.1977).

64. Ngo v. State, 175 SW 3d 738, 744 (Tex. Crim. App. 2005).

65. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (internal citation omitted).

66. Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2015) (internal citation omitted).

67. Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015); see also Alvarado v. State, 704 S.W.2d 36, 38–40 (Tex. Crim. App. 1985) (holding that the trial court erred in failing to tailor the culpable mental states to the result of conduct for the result-oriented offense of injury to a child).

68. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

69. Id.

70. Id. (internal citation omitted).

71. Kirsch, 357 S.W.3d at 649 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).

72. Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.—Corpus Christi 1983, pet. ref’d).

73. Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996).

74. 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

75. Tex. Crim. Proc. art. 36.19; Almanza, supra, at 171.

76. Id.

77. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[A]ny harm, regardless of the degree, which results from the preserved charging error, is sufficient to require reversal.”).

78. See Id. at 171.

79. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); Vann v. State, 216 S.W.3d 881 (Tex.App.—Fort Worth 2007, no pet.).

80. Alamanza, 686 S.W.2d at 171; Rodriguez v. State, 90 S.W.3d 340, 360–1 (Tex.App.—El Paso 2001, pet. ref’d).

Effect of the Farm Act on POM

While many big city prosecutors are dismissing marijuana cases due to the recent passage of the Hemp Farming Act, out in the country these cases are still being prosecuted. This article is aimed at helping those of you who are still trying marijuana cases to juries.

Background

On June 10, 2019, Governor Gregg Abbot quietly signed House Bill No. 1325, also known as the Hemp Farming Act (Act), into law. The purpose of the Act is to “promote cultivating and processing hemp and develop new commercial markets for farmers and businesses through the sale of hemp products.” HB 1325 sec. 2(b)(2). The bill became effective upon signing.

Under the Act, “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. Sound familiar? It should. The Health and Safety Code defines marijuana in pertinent part as “the plant Cannabis sativa L.”

The Additional Proof Required

With passage of the Act, a new proof requirement has now effectively been added to all possession of marijuana cases. To prove up possession of marijuana, the state must prove possession (through affirmative links) and that the substance is marijuana. The legislature effectively made law that any substance that is purportedly a variant of marijuana but is less than 0.3% THC concentration is not a controlled substance. Thus, the state must now prove that alleged marijuana contains THC above 0.3% on a dry weight basis.

Before June 10, 2019, to prove that the defendant was guilty of marijuana, the state had to prove, beyond a reasonable doubt, three elements. These elements were
that

1. the defendant possessed marijuana;
2. the marijuana was of a useable quantity; and
3. the defendant knew he was possessing marijuana.

Today, after the passing of The Act, the state must also prove that the marijuana contained THC greater than 0.3 percent on a dry weight basis. Proper jury instructions should so instruct the jury.

Practical Application

One week after passage of the act, I found myself in trial, in a rural county, on a possession of marijuana case. I represented the driver of a small SUV that was stopped at three a.m. along I-10. There were four additional passengers in the vehicle. The stop was based on a traffic violation (speeding), and the search was based on probable cause established by the odor of marijuana coming from the interior of the car (plain smell).

During the search, marijuana residue was found on the floorboards (front and back) and the center console. There was a large sum of cash and a digital scale located in a purse on the front passenger side floorboard and cigarillos found on the right rear passenger floorboard. The marijuana was found in the center console along with the ID of the right front passenger. The theory of the case was that my client knew she was in a place where marijuana was present, but it was not hers.

I requested the following instructions in the charge.

      “If the evidence shows only that the defendant was at a place where the marijuana was being possessed, that evidence alone is not enough to convict her.”

      “If the evidence shows only that the defendant knew that someone else was in the possession of the marijuana, that evidence alone is not enough to convict her.”

My client’s uncontroverted testimony supported the inclusion.

However, I did not request the fourth element discussed above—i.e., I did not ask that the jury be instructed that “the state must prove beyond a reasonable doubt that the marijuana contained THC greater than 0.3 percent on a dry weight basis.” This is the element that has prompted many prosecutors to no longer accept marijuana charges, and to go so far as to instruct law enforcement agencies not to file marijuana cases unless THC levels can be proven to be above the 0.3 percent threshold.

The Lesson

I was so focused on the issue of “possession” that I overlooked this obvious additional proof required by the passage of the Act.

Happy Ending

Although I failed to ask for the THC language in the charge, the jury got it. They returned a ten-minute not guilty verdict on this case.

Conclusion

Because marijuana cannot be distinguished from hemp without testing, the state can no longer prove marijuana cases with police testimony alone. Expert testimony by an analyst is now required. Therefore, the state will have to implement testing in all POM prosecutions going forward.

September 2019 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
22 | There Will Be Blood: The Interplay Between Hospital Blood Draws and the Warrant Requirement in DWI Cases – By Jason Edward Niehaus
29 | Starting at the End: The Court’s Charge to the Jury – By Sarah Roland
38 | Effect of the Farm Act on POM – By Phil Baker

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

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

President’s Message: First Steps – By Kerri Anderson Donica

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Today I am feeling a longing to see my tribe—my TCDLA family. I received a call from a wonderful gentleman—Ted Trigg in Houston—and had a super visit with him. Ted is a charter member of TCDLA. I am so grateful for those 250 charter members who back in 1971 decided to form an association composed of criminal defense lawyers whose joint goal was to come together and better be able to protect and defend the rights of citizens accused. Go to our TCDLA website and look at the names of those men and women who took the first steps to begin this incredible organization that is now pushing close to 3,500! Then after you read that list, reach out to one of those individuals and thank them for their years of service to our mission!

Summer is my favorite time of year. I love the sunshine and even the scorching Texas heat. This past weekend, I was blessed to travel with my son Hunter, my sister Alicia, and my ex-husband to visit our younger son, Heath, and wife Ashley in Scottsdale, Arizona (and my amazing granddog Ace). That place is warmish. It was 107 degrees at 9:00 am! As you read this, the promise of autumn will be in the air and maybe it will be down in the 90s by that time as we gather in Austin for our September board meeting and what is going to be an incredible and fresh approach to Voir Dire under the leadership of our incredible course directors, Carmen Roe, Sam Bassett, and John Hunter Smith. It’s a true “don’t miss”!

Thank you for the privilege as serving as TCDLA’s President. It is truly one of the greatest honors of my life, and I don’t take it lightly. I am ALWAYS here to serve our membership—as is our staff under Melissa Schank’s remarkable leadership. Let me know how we can serve you better!

Executive Director’s Perspective: Growth – By Melissa J. Schank

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The more I live, the more I learn. The more I learn, the more I realize, the less I know.

—Michel Legrand

Despite the heat advisories of another Texas summer, TCDLA warriors got down to business on several fronts. In July and August your ambassadors on the Membership Benefits Committee have been working to make renewals simple and busy securing new member benefits. You should check out the member benefits page on the website, as it’s being updated as new items are added.

The Legislative Committee—Allen Place, Shea Place, and David Gonzalez—have worked nonstop this session to fight for our members. They have written a detailed 200-page legislative update and cheatsheet exclusive for our members, available online in the members-only section of the website. The Legislative Update webinar exceeded all expectations in attendance. If you missed it or would like to watch it again, you can find it in the members-only section of the website—or you need CLE credit, look on the website under the tab for online CLE.

The Executive Committee has been working in response to numerous requests, reformulating policies, and brainstorming how to grow our organization. Did you know there are 101,587 lawyers in Texas? And of those, some 15,000 practice criminal defense. It is so important for TCDLA to grow to be able to leverage our numbers and be heard when we need to agitate for our platform, for policy changes, or for needed legislation. We must speak with one loud voice and remain #tcdlastrong. If you know a new lawyer or colleague who is not a member, reach out to them—or let me know. We want to assist in any way to ensure all criminal defense lawyers are part of TCDLA.

As part of our own self-examination, the staff recently participated in a retreat wherein members were tasked with making individual presentations, which involved each of them creating PowerPoints with video and attendant handouts. Subsequent brainstorming showed we are ready to implement changes immediately. We have a great plan mapped out for a successful year! Have I told you: TCDLA has an amazing staff. You can see who they are on page 4, or you can find out more about them under the Contact tab on the website. Do not hesitate to call any of them for any assistance needed—we are here to serve you!

On another front, I had the opportunity for a second year to meet with the executive directors from state criminal defense lawyers organizations. Ironically, the executive directors are all women. I found the training re-energizing, empowering—and it provided a wealth of information for improving all our state associations. I also attended the State Justice Criminal Network put on by NACDL. I enjoyed particularly testimonials given of the work of so many nonprofit groups to improve prison systems and address the challenges of our clients.

As summer grinds to its end, plan on attending one of our upcoming TCDLA events. Voir Dire, coming to Austin September 12–13, offers a completely new format, featuring hands-on interaction and instruction. If you need a scholarship, we have some available! November 5–6, Stuart Kinard DWI returns to San Antonio, and December 5–6 in Dallas, Heather Barbieri and Jeff Kearney will be hosting Defending Those Accused of Sexual Offenses. Register now!

Do remember as summer turns to fall (and time spins on faster and faster) to take a moment to take care of yourself. To that end, I personally look forward to the next gathering of family and friends. I recently went on a personal retreat and was reminded to take time to talk to people—rather than being consumed by details and some quest for perfection—and build real relationships.

Editor’s Comment: Know as You Go – By Sarah Roland

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There are a few unrelated things worth mentioning this month:

Marijuana

Is it legal or not? When do you think it will be? Those are the questions many of our clients are asking us these days about marijuana. Texas isn’t the only state grappling with new hemp laws. Ohio is dealing with a nearly identical issue. The issue in Ohio, like in Texas, is that the only way to determine the difference between marijuana (illegal) and hemp (legal) is the THC level. A THC level of .3% or less is hemp and is legal, whereas a THC level over .3% is marijuana and is thus illegal. The current issue resulting in many district attorney offices declining such cases is the present inability of most of the crime labs to quantify the level of THC in a given substance. The reagent kits used by many police departments used on substances believed to contain THC only test for the presence of THC, and not the level of THC. As such, they too are incapable of quantification. This issue is sure to be short-lived, though. Labs will quickly catch up and become able to quantify THC in substances. However, whether the cost of performing such quantification makes the prosecution of small amounts of marijuana economically feasible or not might be a lingering question.

As marijuana intoxication prosecutions becomes more prevalent, there are some general points practitioners need to know to successfully defend these cases.

  • The 2017 Marijuana-Impaired Driving: A Report to Congress by NHTSA is a publication that we should all have and read. It’s only about 40 pages. Save, print and keep it with your trial folder. It’s available for download at www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812440-marijuana-impaired-driving-report-to-congress.pdf.
  • Be aware that in 2018, NHTSA launched the “If you feel different, you drive different” campaign to counter marijuana impaired driving. This is akin to NHTSA’s “drink, drive, go to jail” campaign to counter alcohol impaired driving.
  • Unlike alcohol, which has a predictable and known rate of elimination, marijuana does not. Marijuana has a precipitous drop off from when a person stops smoking. Thus, the window of time a person has a peak concentration of THC in his blood—and is under the psychoactive effect of marijuana—is s relatively short; however, a person will test positive for THC and metabolites of THC for a prolonged time after use.
  • Unlike alcohol where there is a per se limit for intoxication, there is not for any drug.
  • If someone is high, you will generally know it when you watch the video through their behavior.
  • You will get a lab report that looks something like the following:

  • Do not be alarmed by these two readings. An important distinction exists between the two readings. The body breaks down THC into several metabolites. Metabolites of THC stay in the body for longer periods of time than does THC. One such metabolite is 9-Carboxy-THC, the non-psychoactive component in marijuana. It can be detected for more than 7 days and up to around 30 days. A positive or even high reading of 9-Carboxy-THC should not be alarming. If a person has smoked marijuana in the last week to 30 days, expect an elevated reading. Meaning, an expert cannot tell by this reading whether the person was presently under the influence. The main psychoactive component of marijuana is Delta-9-THC. And, Delta-9-THC concentrations do not necessarily indicate recent use. If a person smokes marijuana regularly (daily for example), a Delta-9-THC level such as the above could be residual. There is a wealth of literature on this point, much of which comes from NHTSA’s own Marijuana-Impaired Driving: A Report to Congress. If the accused doesn’t admit to recent smoking and there is otherwise no real evidence of very recent smoking other than the lab report (for example, an odor of fresh marijuana as opposed to burnt odor), then we should be in good shape to defend these cases.
  • Always reach out to the state’s expert. Talk to the expert. There is no reason not to do this. I have found the DPS toxicologists to be easy to contact and responsive to my questions. You will gain a wealth of information if you have a conversation with the toxicologist before trial. Remember, this is not the time for cross-examination; this is the time for information gathering. Nothing is on the record here—just get information. Know what the expert is going to say ahead of time and ask the expert how the opinion was formed. There will necessarily be too many unknowns for an expert to say with any degree of scientific certainty that the person was presently high. For instance, type of ingestion, frequency of use, type of THC, potency of marijuana, etc. All of these factors matter. Remember, true experts are advocates for the science, not the side.
  • If the State attempts to offer any drug recognition testimony, be sure to have a gatekeeping hearing under Rule 702.
  • Of course, as Phil Baker points out in his article, not every county is declining to file marijuana cases. The Second Court of Appeals’ recent opinion in Dowdy v. State, No. 02-18-00112-CR (Tex. App.—Fort Worth 7/30/19) (not designated for publication) is worth a read for anyone handling possession cases (whether they be for marijuana or something else).

Penal Code 42.07(a)(7)

Section 42.07 is the harassment statute. Subsection (a)(7) provides:

(a)   A person commits an offense, if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person . . .

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Everyone please be aware of Ex Parte Barton, ___ SW3d ___ (Tex. App.—Fort Worth, No. 02-17-00188-CR; 08/08/19), where the Second Court of Appeals held section 42.07(a)(7) is unconstitutionally vague and overbroad on its face. In three points, Barton argues that the version of penal code section 42.07(a)(7) under which he was charged is unconstitutionally overbroad and vague, and that the charging instrument fails to give him notice of the offense. See Act of June 15, 2001, 77th Leg., R.S., ch. 1222, 2001 Tex. Gen. Laws 2795 (amended 2013) (current version at Tex. Penal Code Ann. § 42.07(a)(7)). The Court of Appeals agreed and reversed.

Seminars

Finally, since the last publication, I’ve had the great privilege to have presented at the State Bar Advanced Criminal Law Course and the Center for American and International Law’s Annual Trial Skills and Trial Law Program. Our members should know I always say something positive about the Voice. I spoke about investigatory detentions, State’s experts, and the jury charge. These were, and always are, outstanding seminars. There’s just nothing like a TCDLA seminar, though! I fully recognize my inherent bias, but there is just something intangible yet incredibly valuable about a TCDLA seminar as a defense lawyer. If you haven’t been to a TCDLA seminar lately, you have a chance to go this September in Austin (voir dire seminar). And if you can’t make it in September, come to Dallas in December for a seminar dedicated to defending those accused of sexual assault. And, any time any of us are fortunate enough to get the opportunity to speak about a legal issue, whether it be on the local or state level, we should take it. It makes us better lawyers.

Federal Corner: A Primer on Confrontation Clause Objections – By F. R. Buck Files Jr.

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On July 2, 2019, a panel of the United States Court of Appeals for the Fifth Circuit held that the defendant’s rights under the Confrontation Clause were violated when a law enforcement officer testified that he knew that Jones had received a large amount of methamphetamine because of what the officer was told by a confidential informant. This error was not invited by the defense and was not harmless. United States v. Coy Jones, 930 F.3d 366 (5th Cir. 2019)[Panel: Circuit Judges Higginbotham, Smith, and Higginson (Opinion by Judge Higginson)].

Coy Jones came to the attention of law enforcement officers during their investigation of Eredy Cruz-Ortiz, a suspected methamphetamine dealer. On two occasions, officers observed Jones meet with Cruz-Ortiz. Each time, Jones entered Cruz-Ortiz’s vehicle and left holding a bag. On neither of these occasions was Jones stopped, searched or arrested.

Special Agent Royce Clayborne received a tip from a confidential informant that a drug deal would occur at a location where they had earlier seen Jones with Cruz-Ortiz. Jones arrived and met an individual identified as Cruz-Ortiz’s roommate. Jones gestured to him and both vehicles drove off together. No one was able to observe any exchange of items between Jones and the other driver.

Some of the officers followed Jones. When a deputy sheriff attempted to stop Jones for a traffic violation, he sped up and the officers lost sight of him. Eventually, Jones stopped and the officers arrested him and searched his truck; however, they found no drugs or firearms. Law enforcement officers searched both sides of the road where Jones had been driving and eventually found a pistol and a Ziploc bag containing 982 grams of methamphetamine. At trial, one of the officers testified that the gun and the methamphetamine were found in the area where the officers had lost sight of Jones as he fled.

Joseph was subsequently charged with possession with intent to distribute 500 grams or more of methamphetamine, conspiracy to possess with intent to distribute 500 grams or more of methamphetamine, possessing a firearm as a convicted felon, and possessing a firearm in furtherance of a drug trafficking offense. In the district court, Jones filed pretrial motions to compel the disclosure of the identity of the government’s confidential informant and to exclude testimony related to the confidential informant. United States District Judge Sam Sparks of the Western District of Texas denied these motions.

After a four-day jury trial, Jones was convicted and, later, sentenced to a term of 300 months’ imprisonment, the mandatory minimum for his offenses. At that same sentencing hearing, Judge Sparks found that Jones had violated his supervised release on a 2010 federal conviction and sentenced him to 18 months’ imprisonment on the revocation to run consecutively to his 300-month sentence. Jones appealed his convictions and the revocation of his supervised release. Judge Higginson’s opinion reads, in part, as follows:

Prior to and during trial, Jones made multiple objections to the government’s use of information from its confidential informant. We focus our Confrontation Clause analysis on the following series of exchanges with Agent Clayborne. The first occurred on direction examination:

Prosecutor: [B]ased on the information you’d received, Coy Jones had received a large amount of methamphetamine?

Defense: Objection. Hearsay [emphasis added by author].

Prosecutor: I’ll withdraw the question.

The Court: That objection is overruled.

Prosecutor: I’ll withdraw the question, your Honor.

The Court: All right.

Prosecutor: Why did you follow Coy Jones as opposed to the other guy?

Agent Clayborne: Well, we knew that Coy Jones had just received a large amount of methamphetamine.

Prosecutor: And once you knew that he had received that methamphetamine, what did you do?

Agent Clayborne: We were coordinating a traffic stop of the vehicle driven by Coy Jones, which is the white truck.

Prosecutor: And why did you want to stop that vehicle?

Agent Clayborne: Because it had methamphetamine, we wanted to seize it and arrest Coy Jones.

On cross-examination, defense counsel questioned Agent Clayborne regarding his asserted knowledge that Jones had received methamphetamine:

Defense: [Y]ou didn’t see any interaction between Mr. Jones and the silver truck, right?

Agent Clayborne: That’s correct.

Defense: But you testified that you knew Jones had received a large amount of methamphetamine.

Agent Clayborne: That’s correct.

Defense: But you didn’t know that, right? You hadn’t seen anything. You hadn’t seen an exchange of methamphetamine or money.

Agent Clayborne: But I knew it was.

Defense: You believed it, but you didn’t know it.

Agent Clayborne: I knew it. I mean, if you’re asking me, I knew it [emphasis added by author].

Defense counsel then moved on to other questions. On re-direct examination, the government returned to the subject of Agent Clayborne’s knowledge of Jones’s methamphetamine possession:

Prosecutor: [Defense counsel] also asked you, let me characterize this, sort of confronted you about when you said you knew a drug deal had gone down, but you had not seen anything. Do you recall that?

Agent Clayborne: That’s correct.

Prosecutor: How did you know that a drug deal had, in fact, occurred [emphasis added by author]?

Agent Clayborne: So once we saw or the other units saw what looked like a drug deal, I made a phone call to my confidential source, who then made some phone calls himself and got back to me that the deal had happened [emphasis added in the opinion].

Prosecutor: Based on that information, you decided to stop Coy Jones?

Agent Clayborne: That’s correct.

Defense counsel asked to approach the bench and renewed the motion for disclosure of the confidential informant. Counsel argued that Agent Clayborne testified about the content of what the informant said, and that Jones had the right to confront the witnesses against him. The district court stated that the testimony regarding the confidential informant came in response to defense questions on cross-examination, and that the defense opened the door to the testimony. The court also denied Jones’ renewed motion to turn over reports on the confidential informant.

[Implicating the Confrontation Clause]

“Police officers cannot, through their trial testimony, refer to the substance of statements given to them by nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant.” Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008). An officer’s testimony need not repeat the absent witness’ exact statement to implicate the Confrontation Clause. Rather, “[w]here an officer’s testimony leads to the clear and logical inference that out-of-court declarants believed and said that the defendant was guilty of the crime charged, Confrontation Clause protections are triggered.” Kizzee, 877 F.3d at 657 [quotation omitted].

        Agent Clayborne testified that he knew that Jones had received a large amount of methamphetamine because of what the confidential informant told him he heard from others. The jury was not required to make any logical inferences, clear or otherwise, to link the informant’s statement (double hearsay) to Jones’ guilt of the charged offense of methamphetamine possession. The government reinforced this connection during both opening and closing statements. In opening remarks, the prosecutor described the May 3, 2017, surveillance and stated: “Of course, the information the agents have at this point is that Coy Jones is now in possession of a large amount of methamphetamine, so they follow Coy Jones” [emphasis added in the opinion].

[The Government’s Closing Argument at Trial]

In closing arguments, the prosecutor told the jury:

And then, as you heard from Agent Clayborne when the defense asked him, how do you know the drug deal happened? Well, the informant told me. We called the informant and said, did the deal happen and he said, yep, it sure did. And that’s why they chose to follow Coy Jones because they knew he had the drugs [emphasis added by author].

[The Court Responds to His Argument at Trial]

In light of this testimony and argument, we differ with the government’s assertion that the informant’s statements did not directly identify Jones. Both Agent Clayborne and the prosecution “blatantly link[ed]” Jones to the drug deal and “eliminated all doubt” as to who the informant was referring to. Gray v. Maryland, 523 U.S. 185, 193–94 (1998).

[The Government’s Argument at the Fifth Circuit]

The government does not dispute that the confidential informant’s statements regarding the drug deal are inadmissible under the Confrontation Clause as substantive evidence of Jones’ guilt. It argues instead that the informant’s statements were not introduced for their truth, but simply to explain the actions of law enforcement officers.

[Judge Sparks’ Jury Instructions]

The district court instructed the jury that testimony regarding the confidential informant “was admitted only to explain why law enforcement was conducting various surveillance operations,” and could not be used “as evidence the defendant, or anyone else, actually engaged in a drug transaction.”

[The Court Tells Us What Officers May Testify To]

Testifying officers may refer to out-of-court statements to “provide context for their investigation or explain ‘background’ facts,” so long as the “out-of-court statements are not offered for the truth of the matter asserted therein, but instead for another purpose: to explain the officer’s actions.” Kizzee, 877 F.3d at 659. We have made clear that “[w]hen such evidence comes into play, the prosecution must be circumspect in its use, and the trial court must be vigilant in preventing its abuse.” United States v. Evans, 950 F.2d 187, 191 (5th Cir. 1991); see also United States v. Sosa, 897 F.3d 615, 623 (5th Cir. 2018) (“[C]ourts must be vigilant in ensuring that these attempts to ‘explain the officer’s actions’ with out-of-court statements do not allow the backdoor introduction of highly inculpatory statements that the jury may also consider for their truth.”) (quoting Kizzee, 877 F.3d at 659).

[The Confrontation Clause]

Such vigilance is necessary to preserve the core guarantees of the Confrontation Clause. A witness’ statement to police that the defendant is guilty of the crime charged is highly likely to influence the direction of a criminal investigation. But a police officer cannot repeat such out-of-court accusations at trial, even if helpful to explain why the defendant became a suspect or how the officer was able to obtain a search warrant. See Kizzee, 877 F.3d at 659–60 (holding that a detective’s testimony that he was able to obtain a search warrant for the defendant’s house after questioning a witness about drug purchases violated the Confrontation Clause); . . .

* * *

[The Testimony Violated the Confrontation Clause]

 ‘Statements exceeding the limited need to explain an officer’s actions can violate the Sixth Amendment—where a nontestifying witness specifically links a defendant to the crime, testimony becomes inadmissible hearsay.’ Kizzee, 877 F.3d at 659; see also United States v. Vitale, 596 F.2d 688, 689 (5th Cir. 1979) (explaining that testimony regarding a tip is permissible ‘provided that it is simply background information showing the police officers did not act without reason and, in addition, that it does not point specifically to the defendant’). Because Agent Clayborne’s testimony about his conversation with the confidential informant ‘point[ed] directly at the defendant and his guilt in the crime charged,’ it was not a permissible use of tipster evidence. Evans, 950 F.2d at 191. Thus, the introduction of this statement at trial violated the Confrontation Clause.

[The Government Unsuccessfully Argues “Invited Error”]

The government contends that, to the extent its use of the confidential informant’s statements exceeded permissible non-hearsay purposes, Jones invited the error. This argument falls short for two independent reasons. First, defense counsel did not ask Agent Clayborne how he knew that Jones had received the methamphetamine, and thus did not invite him to answer that question. Rather, the defense simply pointed out an inconsistency between Agent Clayborne’s testimony that he did not observe a drug transaction and his confident assertion that he knew Jones had received the drugs. “We narrowly construe counsel’s statements in applying the invited error doctrine.” United States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016). In this case it was the prosecution, not the defense, that elicited the hearsay testimony by asking Agent Clayborne how he knew that the drug deal had occurred. Cf. United States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007) (finding invited error when the challenged “testimony was first elicited by Contreras’ own attorney on cross-examination after he repeatedly asked Delauney to explain the basis for his suspicions about Contreras”). The government has pointed to no authority suggesting that the defense raising general doubts on cross-examination about the basis of an officer’s knowledge permits the prosecution to directly elicit incriminating hearsay testimony on re-direct examination.

        Second, it is undisputed that defense counsel was not informed before trial that the confidential informant provided law enforcement with after-the-fact information that the drug deal went through. For invited error to permit “waiver of the Sixth Amendment right to confrontation, a purposeful rather than inadvertent inquiry into the forbidden matter must be shown.” United States v. Taylor, 508 F.2d 761, 764 (5th Cir. 1975); see also United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (“Invited error applies, however, only where the error can be attributed to the actions of the defense.”). The Sixth Amendment guarantees defendants the right to confront all accusers, whether present or absent at trial. See Crawford, 541 U.S. at 50–51. A defendant may cross-examine the government’s witnesses and probe seeming inconsistencies without risking the unwitting admission of incriminating hearsay. See Taylor, 508 F.2d at 764 (finding no invited error when defense counsel “had no way to know that asking about the sawed-off rifle would lead the witness into the [challenged] statement”). To hold otherwise would eviscerate the protections of the Confrontation Clause by forcing defendants to choose between their right to vigorously cross-examine testifying witnesses and their right to confront out-of-court accusers.

[The Government Argues That the Error Is Harmless Beyond a Reasonable Doubt]

We may nonetheless affirm Jones’ conviction if the Confrontation Clause error was harmless beyond a reasonable doubt. See United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008); Chapman v. California, 386 U.S. 18, 24 (1967). To meet this standard, the government bears the burden to show that there was “no reasonable possibility that the tainted evidence might have contributed to the jury’s verdict of guilty.” Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir. 1993).

* * *

Our harmlessness inquiry focuses “on the evidence that violated [Jones’] confrontation right, not the sufficiency of the evidence remaining after excision of the tainted evidence.” Id.; see also United States v. Dominguez Benitez, 542 U.S. 74, 81 n.7 (2004).

* * *

Here, the inadmissible evidence was highly incriminating.

* * *

We have repeatedly found harmful error under similar circumstances.

* * *

[Conclusion]

The government has therefore failed to meet its burden to show harmless error . . . Under these circumstances, we cannot say that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction” for firearm possession. Chapman, 386 U.S. at 24. We thus vacate the judgment of conviction on all counts and remand for a new trial.

My Thoughts

  • Thanks to Ed Mallett, a past president of both NACDL and TDCLA, for alerting me to this case.
  • Confrontation issues have been with us forever and can be confusing. Forty-one years ago, I was an attorney of record for one of the defendants in a conspiracy case being tried in the court of Chief Judge Joe Fisher of the United States District Court for the Eastern District of Texas. When I made my second Confrontation Clause objection, he was heard to say to his law clerk, “Go check out this confrontation thing.” Unfortunately, the law clerk did; Judge Fisher ruled correctly; and we lost an appellate issue.

Shout Outs

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A big shout out to Richard Gladden of Denton for his recent appellate victory at the Second COA in Dowdy v. State, No. 02-18-00112-CR (Tex. App.—Fort Worth 7/30/19) (not designated for publication). The jury con­victed Appellant of POM, Class A, and sentenced him to 180 days in the county jail and fined him $4,000. Somehow, the jury left the verdict form completely blank, though. Although the COA didn’t reach Richard’s argument that a blank verdict form is not a legal verdict regardless of whether the jury verbally announces its decision to convict, the COA reversed and rendered a judgment of acquittal based on insufficient evidence. This is an interesting opinion worth a read. Perhaps tellingly, the COA highlighted, among other things, that the corporal “admitted that Appellant and the Impala’s driver did not look alike. But he asserted that the person he saw coming from around the wall near Apartment 12—who he could not identify as Appellant—matched the Impala’s driver ‘in certain ways’: Both were black men who happened to be wearing white t-shirts” (at p. 6). Really?! Way to go, Richard!

Kudos to Allison Clayton, chair of the Amicus Curiae Brief Committee, for her work through the Innocence Project of Texas—along with students of the Innocence Clinic at the TTU School of Law Clinical Programs—on the case of Ed Ates, chronicled for all to see in the Texas Monthly article “Crowdsourcing Justice” by Michael Hall (available here: https://bit.ly/2GYM0mj). Ed went to prison for 20 years for a murder he didn’t commit but paroled out through the work of Allison and friends—and the unlikely support of a podcast, as Allsion relates: “Thank you as always to the indelible Bob Ruff and his amazing Truth & Justice with Bob Ruff Army for insisting that IPTX Executive Director Michael Ware listen to a podcaster from middle-of-nowhere Michigan. Y’all are the army of change that our justice system so desperately needs. You deserve all the praise and more. Congratulations on such a well-deserved recognition!“ Allison and team have been working on exoneration for nearly 4 years and have no intention of stopping now. Y’all are an inspiration to everyone for the work you do.

Kudos also to Colin McFall of Palestine for an impressive win on a charge of Continuous Sexual Assault of a Child. Colin says the State abandoned the Continuous allegation just before they rested, but they still faced two counts of Aggravated Sexual Assault of a Child and four counts of Indecency with a Child by Contact. In addition, the State elected to include every lesser included offense of each of the six counts in the Jury Charge. But in the end, “the Judge read all of the jury’s 14 verdicts of ‘Not Guilty.’” Congratulations, Colin, on this big win.

Shout out to Ethics Chair/Editor Robert Pelton and an “HCCLA members defense team” for landing a plea for life when the prosecution sought death. Robert credits Terry Gaiser (who, he says, did most of the work), mitigator Amy Martin, and investigator Molli Steinly. D had been identified in the capital murder case by a Crimestoppers tip, a surveillance video, and witnesses. Sometimes you have to play the hand you’re dealt, and the Houston team did everything they could with those cards. Also of interest: Robert and fellow TCDLA members Jim Lavine, Earl Musick, and Jack Zimmermann appeared at a book signing because of their involvement in a case dramatized in a new true-crime book, Out Here in the Darkness by Abra Stevens. They’re our sort-of reality stars . . .

Kudos to DWI Committee Co-Chair Mark Thiessen of Houston for his latest wild win—a .342 blood test on a DWI 2nd in Harris #7. As he relates: “Car was pulled over doing 95 in a 60. In the almost 3 minutes that it took the officer to approach the driver’s window, my client and the driver switched seats. So my client was sitting in the driver’s seat drunk as a skunk when the officer came to the window. Client couldn’t even figure out how to open the door. Client told them the entire time that he switched seats and wasn’t the driver, but he wasn’t believed because of his prior 2004 DWI. Thank God for dash and body cams! The jury was able to see the brake lights and car movement while the officer was writing a ticket and not looking. The jury got all the evidence and got to hear how the real driver had warrants and a suspended license . . . Common sense prevailed the day, and the jury followed the law that the State did not prove client was driving beyond a reasonable doubt. I stipulated to everything but driving. Stipulated to all the evidence. Tried it solely on driving. Thank you to the jury for following the law and holding the State to their burden.” Way to keep it interesting, Mark.

A robust response from TCDLA and NACDL members to a vote at the ABA House of Delegates meeting in San Francisco saw ABA Resolution 114 postponed indefinitely, by a wide margin. You can read all about it in the ABA Journal: www.abajournal.com/news/article/resolution-114.

Note: In the print version of the July Shout Outs, a picture mistakenly identified Chuck Lanehart as the recipient of this year’s James G. Denton Distinguished Lawyer Award. In fact, Chuck, who won the award last year, presented it this year to Justice Phil Johnson, also shown. We regret this error. In traditional High Plains justice, the proofreader was pistol-whipped and turned out to pasture.