August, 2020 | Voice for the Defense Online

September 2020 SDR – Voice for the Defense Vol. 49, No. 7

Published on August 27, 2020

Voice for the Defense Volume 49, No. 7 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Editor’s note: the SCOTUS did not hand down any published criminal cases since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Alvear, 959 F.3d 185 (5th Cir. May 13, 2020) [Good cause to not allow confrontation during a revocation hearing; sufficient indicium of reliability of a declarant’s out-of-court statements]

Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated-was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant-the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation hearing is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events.
Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing.
A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.

Facts:

Alvear was convicted of drug crimes and was on supervised release.
Per the probation officer, Alvear violated the terms by: (1) choking his wife Alvarez, (2) failing to file a truthful and complete written report with his officer by falsely claiming he lived with his mom, and (3) failing to inform his officer that he moved in with Alvarez.
The probation officer alleged that Dallas officers responded to a call from Alvarez, who told them that Alvear had choked her the night before. An arrest warrant issued for Alvear for Assault of a family/household member by impeding breath/circulation, an F-3. Alvarez obtained a temporary protective order against Alvear, yet Alvear followed her home from her job for a few weeks, and repeatedly called and texted her.
At the revocation hearing, the court heard testimony from the probation officer and a police officer, which included out-of-court statements by Alvarez. Alvear objected, arguing that he had a right to cross-examine Alvarez. The government presented evidence that Alvarez had reached out to the probation officer multiple times with fears for her safety. The court overruled Alvear’s objection, finding good cause to not allow the cross-examination.
The court found that Alvear committed the supervised release violations by a preponderance of the evidence and sentenced him to 27 additional months in BOP.

The Government showed good cause to not allow the cross-examination

Because Alvear timely objected, review of the district court’s finding of good cause is de novo.
Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated – was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant – the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation haring is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events.
Still, the government concedes that Alvear’s right to cross-examine was implicated.
Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing.
A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.
No one testified that they saw Alvarez’s injuries, but her statements were corroborated by physical manifestations of trauma because the police officer saw her the day after the alleged altercation and testified to Alvarez’s mannerisms , nervousness, and crying. Alvear told the probation officer that he physically injured Alvarez-from “passionate touching” rather than alleged choking. Alvear points to no evidence suggesting that Alvarez was motivated to lie. Alvarez’s statements had sufficient indicia of reliability.
There was good cause to forgo cross-examination of Alvarez, and the judgment is affirmed.

Editor’s note: no cross-examination of the complaining witness allowed. How innovative.

United States v. Aparicio-Leon, No. 19-50813, 2020 U.S.App.LEXIS 20413 (5th Cir. June 29, 2020) (designated for publication) [Calculation of base offense level per U.S.S.G. § 2D1.1(a)(5) & (c); meth versus ice; computation of a sentence per 18 U.S.C. § 3585 is BOP’s responsibility]

Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c). For meth, the base offense level is determined by weight and purity. “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.

Facts:

Aparicio was arrested on December 13, 2018 and indicted in McLennan Co. for Possession of a Controlled Substance (meth) and Evading Arrest. Out of the same incident, he was indicted in federal court under 21 U.S.C. § 841(a) for Possession of a Controlled Substance with intent to distribute at least 500 grams of a mixture or substance containing a detectable amount of meth.
A writ of habeas corpus ad prosequendum issued, ordering the McLennan Co. Sheriff to transfer Aparicio to the U.S. Marshal.
On August 28, 2019, Aparicio was sentenced to 165 months in federal court. Defense counsel requested that the federal sentence run concurrent with any state sentence to be imposed, which was granted per U.S.S.G. § 5G1.3(c). No other objections were made.
Aparicio was returned to Texas custody but has not been sentenced on those charges.

The district court did not error in the calculation of the base offense level

Because Aparicio did not raise these issues in the district court, review is for plain error.

Editor’s note: This is the full relevant law on plain error:

To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error and; (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach.
When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b),Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olanofactors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.
Aparicio argues that the district court erred by relying on U.S.S.G. § 2D1.1-characterizing the meth as ice-to calculate the base offense level of 34, and if the calculation were based on the meth mixture, his offense level would have been 30.
Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c). For meth, the base offense level is determined by weight and purity. “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
The Table lists meth, meth (actual), and ice. At least 500 grams but less than 1.5 kg of ice equals a base offense level of 34. The meth seized was d-meth hydrochloride with a net weight of 989 grams and a purity of 97%, so it was appropriately classified as ice. The district court did not err-plainly or otherwise-in applying the undisputed pure meth weight to the Drug Quantity Table to determine Aparicio’s base offense level.
The district court did not err by failing to adjust his sentence to account for time he spent in custody prior to sentencing that he claims will not be credited to his federal sentence by BOP
Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.
Aparicio has not shown a clear or obvious error. Despite the colloquy about potential credit for time served, neither the oral pronouncement nor written judgment impermissibly attempted to award Aparicio credit for time served or to determine the commencement date. At most, the record suggests that the court imposed a nonbinding recommendation to BOP to account for time.
Aparicio’s sentence is AFFIRMED.

United States v. Burden, No. 19-30394, 2020 U.S.App.LEXIS 20802 (5th Cir. July 2, 2020) (designated for publication) [Severance under Fed. Rule Crim. Proc. 14; “knowingly” mens rea in 18 U.S.C. § 924(a)(2)]

The denial of severance under Fed. Rule Crim. Proc. 14 is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.

Facts:

Officer Barcelona was approaching an intersection when he saw two black males in white t-shirts and blue jean shorts exit an SUV and begin shooting into a Mercedes. When the driver of the SUV saw Barcelona, he fled, leaving the shooters running after it. The occupants of the Mercedes were uninjured.
Barcelona saw that one of the shooters was armed with an AK-47 rifle and all had masks covering their faces. They then ran into a residential block, around which Barcelona and other officers secured a perimeter while awaiting a canine unit.
An officer at the perimeter spotted two black males, fully clothed, come out from behind a residence and run back in. Less than a minute later, two black men came back out naked and were sweating profusely. With hands raised, the men shouted, “we just got robbed.” The officers took them into custody and placed them in the back of a police car.
Inside the perimeter and assisted by a dog tracker, officers recovered plastic masks, a Smith & Wesson 9mm pistol, a Century Arms 7.62x39mm rifle (“AK-47”), two cellphones, a pair of blue jean shorts, a pair of white Nike shoes.
Upon returning to the perimeter, Barcelona went to the police car where he saw Burden wearing only black or dark-colored underwear and socks, and Scott was wearing only blue jean-style shorts. Based on their physical appearance, Barcelona believed they were the ones shooting, though he had not seen their faces uncovered.
DNA and forensic examination linked Burden to one of the weapons and Scott to both phones and a mask. The 19 rounds discharged came from the firearms.
Burden and Scott were charged in an indictment alleging that under 18 U.S.C. § 922(g)(1), they were felons in possession of firearms. The indictment did not allege that they knew of their felon status at the time of possession though both stipulated at trial that they were felons when arrested.
Days after arrest, Burden admitted to the Louisiana Parole Board that he violated conditions parole by possessing a firearm. Scott filed a severance motion, which was denied. The court instructed the jury that it was not to consider Burden’s admission as evidence against Scott. Burden’s statement did not mention Scott.
At trial, evidence was presented establishing that the defendants had claimed that they had been robbed of their clothing. The jury failed to reach a verdict.
Before the second trial, the district court ordered that the parties obtain approval before mentioning or eliciting testimony regarding the supposed robbery. No party objected or sought such approval. The second jury heard nothing about it.
The jury instructions provided that the government must prove that the defendant knew that he possessed a firearm, but not that he knew that he was a qualifying felon.
The second jury found both guilty.
The PSRs recommended finding that the defendants used and possessed the firearms in an attempted first-degree murder.
Neither defendant objected to the PSRs, whose findings the district court adopted.

The district court did not abuse its discretion by denying the motion to sever

The denial of severance is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
The Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when the confession is redacted to eliminate the defendant’s name and reference to his existence. Burden’s statement did not mention Scott, and other evidence was indeed needed to show the linkage to Scott.

There was no error relating to the defendants’ knowledge that they were felons at the time of the incident

Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.
Burden’s arrest occurred days after he was released on parole for robbery. Scott had been paroled from a suspended prison sentence for burglary months earlier. Both stipulated at trial that they were felons. The notion that either was unaware that he had been convicted of a felony or that the government would have been unable to prove it, is unrealistic.
The judgments and sentences are AFFIRMED.

United States v. Gratkowski, No. 19-50492, 2020 U.S.App.LEXIS 20501 (5th Cir. June 30, 2020) (designated for publication) [no expectation of privacy in Bitcoin blockchain records]

There is no expectation of privacy in Bitcoin blockchain records.
Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey numbers to the phone company by placing a call.

Facts:

The FBI began investigating Gratkowski because of a child-porn website (“Website”). To download material, some like Gratkowski paid in Bitcoin, a virtual currency in which each user has at least one “address”-sort of like a bank account number-that is a string of letters and numbers. Users send Bitcoin to other users through addresses using a private key function that authorizes payments. Users download Bitcoin’s software or use a virtual currency exchange like Coinbase. When a user transfers Bitcoin to another address, he transmits a transaction announcement on Bitcoin’s public network-a blockchain. The blockchain contains only the addresses and amount of Bitcoin transferred. The owners of the addresses are anonymous on the blockchain, they can be uncovered by analyzing the blockchain. When an organization creates multiple Bitcoin addresses, it often combines them into a central address-a “cluster.” It is possible to identify a cluster of addresses held by one organization by analyzing the blockchain’s transaction history using open source tools and private software products.
Agents used an outside service to analyze the publicly viewable blockchain and identify a cluster of addresses controlled by the Website. Agents served a grand jury subpoena on Coinbase for information on the Coinbase customers whose accounts had sent Bitcoin to addresses in the Website’s cluster. Coinbase identified Gratkowski as a customer. Agents obtained a search warrant for Gratkowski’s house and found a hard drive containing child porn, and Gratkowski admitted to being a Website customer.
The Government charged Gratkowski with one count of receiving child porn and one count of accessing websites with intent to view child porn.
Gratkowski filed a MTS the warrant, arguing that the subpoena to Coinbase violated the Fourth Amendment. The district court denied the motion. Gratkowski entered a conditional guilty plea to both counts, reserving the right to appeal the denial of the MTS.

There is no expectation of privacy in Bitcoin blockchain records

A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey dialed numbers to the phone company by placing a call.
Under United States v. Miller, 425 U.S. 435, 439-440 (1976), bank records are not subject to Fourth Amendment protections because they are not confidential communications but negotiable instruments with information voluntarily conveyed to the banks.
An exception to the third-party doctrine exists with cellphones per Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018) because unlike call logs, which reveal little identifying information, and checks, which are not confidential communications but negotiable instruments used in commercial transactions, CSLI provides officers with an all-encompassing record of the holder’s whereabouts and provides an intimate window into a person’s life, revealing movements and through them their familial, political, professional, religious, and sexual associations. Cellphones have become almost a feature of human anatomy because they are carried all the time.
There is no expectation of privacy in Bitcoin blockchain records because they reveal only: (1) the amount of Bitcoin transferred, (2) the Bitcoin address of the sending party, and (3) the Bitcoin address of the receiving party. The information is limited. Transacting through Bitcoin is not a pervasive or insistent part of daily life and requires an affirmative act by the Bitcoin address holder. Bitcoin users are unlikely to expect that information published on the Bitcoin blockchain will be kept private. It is well known that Bitcoin transactions are recorded in a publicly available blockchain that is accessible to every Bitcoin user.
The district court’s denial of the MTS is affirmed.

United States v. Reyes, 960 F.3d 697 (5th Cir. June 5, 2020) [Reasonable suspicion to prolong a traffic stop to call a K9 unit; Miranda applies only to a formal arrest]

Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch doesnot create reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest.

Facts:

Officer Windham stopped Reyes, informed her she was speeding, and requested her driver’s license and registration. Reyes said that she was trying to get her kids to school. There were no passengers in her truck, which had a temporary Oklahoma tag. Reyes said the kids were in Abilene, 15 miles ahead.
Windham asked Reyes to accompany him to his patrol car while he looked her up. Reyes refused. Windham explained that he completes traffic stops in his patrol car for safety-to avoid being hit by vehicles and because he doesn’t know what may be inside the driver’s vehicle. And, it was very cold.
Reyes asked, “What about the truck”? Windham answered that it could stay parked where it was. As Reyes sat down in the passenger seat of the patrol car, she locked her truck. Windham-who had never seen anyone lock her vehicle during a traffic stop-suspected that Reyes was trying to hide something illegal.
Windham asked Reyes where she was heading, and she said “this address” as she scrolled through her phone to find it. Windham asked, “I thought you said you were taking the kids to school.” Reyes responded, “ Not my kids. My kids are in Grand Prairie. I’m helping a friend take her kids to school. She doesn’t have a car.” Reyes said that she started her trip in Grand Prairie, and Windham asked, “What time did you leave?” Reyes replied, “About three hours ago or so.” Because Reyes purported to travel three hours to take kids to school, Windham could tell something was “not right.”
Windham asked who owned the truck, and Reyes replied that it was her ex-husband’s. Based on his training, education, and experience, Windham knew that narcotics couriers often use vehicles registered to others to avoid forfeiture.
Windham asked Reyes if she had ever been arrested. She stated for DWI. Windham asked whether there was anything illegal in the truck. Reyes’s facial expressions changed dramatically, and her eyes shifted from Windham to the front windshield as she shook her head and said, “No. There shouldn’t be. It’s brand new.”
Windham asked, “you drove all the way from Prairie to take these kids to school for this lady?” Reyes replied that she previously had a relationship with the woman in prison and the woman’s husband was going to be at work. Windham told Reyes that she wasn’t going to make it in time to take the kids to school. Reyes changed her story again, claiming that she was going to Abilene just to see her.
Reyes refused to give consent to search the truck because it was not hers. Windham explained that she could grant consent because she had control of it. Reyes refused.
At that point-8:30 into the stop-Windham informed Reyes that he was going to call a K9 unit to perform a free-air sniff. If the dog detected, he would have probable cause to search inside. Windham asked Reyes whether she had weapons. She had only a wallet and pack of cigarettes in her pockets. She asked if she could smoke, and Windham agreed. Reyes said she didn’t have a lighter on her. He asked if she had one in the truck, and Reyes said she did not know. Windham found it odd that Reyes declined to retrieve her lighter because a smoker never turn down his offer to smoke.
Reyes admitted that in addition to the DWI, she had been arrested for warrants related to tickets, and for a pill found in her ex-girlfriend’s vehicle, a story that evolved into an arrest for meth.
Within minutes, a canine unit arrived and conducted the sniff. The dog alerted to a controlled substance. Windham searched and found 127.5 grams of meth and a loaded handgun.
A grand jury indicted Reyes. She filed a MTS, arguing that Windham did not have reasonable suspicion to extend the stop for the canine sniff, and that she was entitled to Miranda warnings when Windham directed her into his patrol car. The district court denied the MTS, finding that Windham had a reasonable suspicion to extend the traffic stop until a K-9 unit arrived, and that Reyes was not in custody for Miranda purposes.
Reyes pleaded guilty to Conspiracy to Distribute and Possess with Intent to Distribute 50 grams or more of meth in per 21 U.S.C. § 846 but reserved her right to appeal the denial of the MTS.

The officer had reasonable suspicion to extend the stop

A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch does notcreate reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
These specific and articulable facts support Windham’s suspicion: Reyes drove a truck registered in someone else’s name, with a temporary plate for a different state, and in Windham’s experience, couriers often drive vehicles registered to other people to avoid forfeiture; Reyes took unusual measures to protect the truck by first refusing to exit it and locking it even though an officer was immediately behind it; Reyes offered inconsistent and implausible stories about her travel; Reyes had a conviction for possession of meth; when Windham asked Reyes whether there was anything illegal in the truck-a “yes or no” question-her facial expressions changed dramatically and she said, “There shouldn’t be. It’s brand new.”; Windham drew on his training, education, and experience in narcotics interdiction to surmise his suspicion that Reyes was participating in a crime. These articulable facts combine to establish reasonable suspicion.

Reyes was not entitled to Miranda warnings

Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest.
Because the traffic stop did not have the quality of a formal arrest, Miranda does not apply.
The conviction and sentence are affirmed.

Texas Court of Criminal Appeals

Editor’s note: the TCCA did not hand down any published opinions since the last SDR.

Texas Courts of Appeals

State v. Colby, No. 03-19-00710-CR, 2020 Tex.App.-LEXIS 4890 (Tex.App.-Austin June 25, 2020) (DWI) [Warrantless traffic stops; stopping in an intersection under Tex. Transp. Code § 545.302]

Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic.

Facts:

The evidence at the MTS hearing showed that Officer Garza was on night patrol driving east on Blue Clearing Way towards the intersection with Highlands Boulevard, which had a stop sign. Highlands Boulevard is a four-lane road, with two northbound and two southbound lanes. Blue Clearing Way is a two-lane road, one eastbound and one westbound.
Garza did not come to a complete stop untilhe was beyond the stop sign and in the intersection because he claimed he wanted to get a better view of cross-traffic, which was obscured by foliage.
Garza observed a vehicle approaching the intersection from Highlands Boulevard, which did not have a stop sign. The vehicle came to a complete stop in the intersection and flashed his brights to signal to Garza that he can go ahead. When Garza did not, the driver proceeded through the intersection north on Highlands.
Garza turned onto Highlands Boulevard and initiated a traffic-stop. The basis was Tex. Transp. Code § 545.302(a)(3), which prohibits a driver from stopping in an intersection.
The trial court granted the MTS, concluding that Colby’s actions were reasonable under the circumstances since Colby attempted to yield to a marked police vehicle.

The trial court did not abuse its discretion in granting the MTS

Editor’s note: this is the relevant law on the standard of review for a MTS:

Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.
Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic.
Colby’s action was reasonable under the circumstances because Garza’s patrol car was stopped in the intersection and Colby was attempting to yield to Garza’s marked police vehicle. The totality of the circumstances and the record supports the trial court’s finding that Colby’s stopping inside the intersection was an attempt to yield to Garza’s patrol vehicle, which Garza should have realized was permitted under the Transportation Code to avoid “conflict with other traffic.”
The trial court did not abuse its discretion in granting the MTS, and the State’s sole issue is overruled.

State v. Dean, No. 14-19-00306-CR to 14-19-00313-CR, 2020 Tex.App.-LEXIS 4195 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication) [State’s right to appeal under Tex. Code Crim. Proc. Art. 44.01(a)(1)]

Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.

Facts:

Dean was charged in juvenile court with Aggravated Robbery and Assault of a Public Servant. The State filed a petition for discretionary transfer to a district court per Tex. Fam. Code § 54.02, alleging probable cause that Dean committed the offenses and asked the juvenile court to waive its jurisdiction.
After a hearing, the juvenile court waived its exclusive jurisdiction and transferred Dean to the district court. Dean waived his right to immediately appeal the waiver of jurisdiction and discretionary transfer. Dean was indicted in district court for Aggravated Robbery and Assault of a Public Servant.
On March 11, 2019, Dean filed a Motion in Bar of Prosecution for Lack of Jurisdiction, arguing: the juvenile court’s stated reasons for waiver were supported by insufficient evidence so it abused its discretion by waiving jurisdiction; the State failed to prove that it was not practicable to prosecute Dean as a juvenile; the juvenile court abused its discretion by certifying Dean as an adult because of the lack of evidence underlying the decision, including the State’s failure to provide the juvenile court with all of Dean’s school records; the expert’s conclusions did not support the decision with respect to Dean’s lack of maturity given the failure to consider all education records; and Dean’s right to trial by jury was violated by the transfer contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000) since the exposure to adult punishment greatly exceeds the maximum punishment as a juvenile.
The district court granted the motion in its entirety.
The State filed notices of appeal.

The court of appeals lacks jurisdiction over the appeal

Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.
The district court did not dismiss the indictments against Dean when it granted the Motion in Bar of Prosecution. It merely decided that the juvenile court abused its discretion by transferring the case to the district court. The State’s appeal is not permitted under Art. 44.01(a)(1). The appeal is dismissed for lack of jurisdiction.

Harvey v. State, No. 01-19-00032-CR, 2020 Tex.App.-LEXIS 4565 (Tex.App.-Houston [1st Dist.] June 18, 2020) (designated for publication) (Assault and Aggravated Sexual Assault) [Requirement of plea of “not guilty” or “guilty”; plea of guilty in open court per Tex. Code Crim. Proc. Arts. 27.13 & 27.17; presumption of regularity and truthfulness of final judgments per Tex. Rule App. Proc. 44.2(c)]

Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. If no plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument.

Facts:

Harvey was indicted for 3 counts of felony Assault by strangulation and 1 count of Aggravated Sexual Assault against C.D. (ex-girlfriend). Harvey sent letters to the trial court indicating that he was willing to admit he assaulted C.D. but denied committing Aggravated Sexual Assault.
Harvey signed a waiver of arraignment. Harvey sent two mor letters to the trial court stating that he admitted to assaulting C.D. but denied sexually assaulting her.
At the plea hearing, Harvey pleaded guilty to the Assault in exchange for 8 years in TDCJ and not guilty to the Aggravated Sexual Assault. Harvey signed a waiver of jury trial for the Aggravated Sexual Assault and was admonished by the trial court. The record is silent as to whether Harvey entered a plea to the Aggravated Sexual Assault.
After the TBC on the Aggravated Sexual Assault, the trial court found Harvey guilty and sentenced him to 15 years in TDCJ to run concurrent with the sentence for the Assault. The judgment of conviction shows that Harvey pleaded “not guilty.”

Harvey failed to overcome the presumption of regularity and truthfulness in the judgment

Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. Ifno plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument.
The record shows that Harvey did not intend to plead guilty to Aggravated Sexual Assault and wished to have a TBC. The court must presume that the trial court’s written recital in the judgment that Harvey pleaded “not guilty” to aggravated sexual assault is truthful. The record supports the presumption of regularity and truthfulness, and Harvey failed to carry his burden of proving that the trial court’s recital in the judgment was false.
The judgment of conviction is affirmed.

State v. Heredia, No. 03-19-00633-CR, 2020 Tex.App.-LEXIS 4177 (Tex.App.-Austin May 28, 2020) (designated for publication) (Pretrial Habeas Corpus, State’s appeal) [State’s preservation of a portion of a charging instrument; when jeopardy attaches; judicial estoppel]

Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.

Facts:

Heredia was indicated for Murder (Count I), Tampering with a Corpse (Count II), and Tampering with Physical Evidence (Counts III- VIII). The State proceeded to trial only on the Murder. The jury acquitted Heredia and convicted him of the lesser-included offense of Manslaughter and assessed punishment at 20 years in TDCJ.
The State then sought to try Heredia for the Tampering. Heredia filed an application for writ of habeas corpus, asserting that the prosecution is barred by Double Jeopardy because to prosecute the Tampering charges, the State had to have abandoned or dismissed them prior to jeopardy attaching in the Murder trial.
At the hearing, the ADA admitted that it “held” the other cases for a later trial and defense counsel had not agreed to the severance but argued that all counts be tried together. The district court granted the application.

The district court did not err in granting Heredia’s application for writ of habeas corpus

Under Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006), a ruling on a habeas-corpus application is reviewed for an abuse of discretion. The evidence is considered in the light most favorable to the ruling with deference to the trial court’s resolution of factual disputes. When the facts are undisputed and the resolution of the ultimate question turns on an application of legal standards, review is de novo.
Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
Here, nothing in the trial or habeas records show that the State took any affirmative action “on the record” to preserve the Tampering charges for a later prosecution. The discussion of the charges and the trial court’s informal grant of permission for the State to proceed only on the Murder charge took place off the record, in chambers, without the defendant present.
The district court did not err in granting Heredia’s application for writ of habeas corpus.

Judicial estoppel does not apply

Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.
During the Murder trial, the State presented extraneous-offense evidence related to the Tampering charges to prove Heredia’s state of mind during the alleged murder. Defense counsel responded by eliciting testimony and arguing that Heredia could be prosecuted for Tampering at a later trial, telling the jury that Tampering is not the case before it.
Defense counsel’s jury arguments cannot be said to have been successful or gave him an “unfair advantage” over the State. Nothing in the record suggests that the jury’s decision was influenced by arguments regarding the Tampering charges.

State v. Hunter, No. 03-18-00424-CR, 2020 Tex.App.-LEXIS 4420 (Tex.App.-Austin May 29, 2020) (designated for publication) (Solicitation to Commit Capital Murder) [Death of an unborn child under Tex. Penal Code § 19.06 is not an offense; motion to quash indictment, statutory construction]

Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder.
Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case.
Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history. Statutory construction is a question of law reviewed de novo.
Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.

Facts:

Hunter was indicted for Criminal Solicitation to commit Capital Murder per Tex. Penal Code § 15.03(a): with intent that a capital felony be committed (murder of the unborn child of [E.E.]), (Hunter) did request, command or attempt to induce [E.E.] to engage in conduct to cause the death by sending these texts to E.E.:
“I don’t have a kid motherfucker you have a kid try and give birth to it see what happens, so I will see you soon motherfucker…when you turn around one night when its really dark I’m going to be right there…Well [E.E.] like I said to you on the phone I’m going to enjoy doing it to you and you have no idea what I am. Anyway I sent your mother news of you and your text talking about the baby so she knows you’re pregnant have a nice evening bitch. And you and your family are not raising this kid guaranteed…if you had any clue does monsters under your fucking bed would look like fucking daisies if you knew what I’m capable of. [E.E.] you and never give birth I promise you”;
“I’ll cut that fucking baby i love you I’ll put in a fucking blender important your fucking throat if you fucking lied to me again you fucking piece of shit; Hey I told you not having that kid and I meant it bitch. You are not allowed to have my child it’s not going to happen get used to that fact now. I will go to the ends of this fucking earth to make sure you don’t”;
“I want to make this loud and clear your life is going to be miserable I do not want you raising that kid with his fucking nose turned up the way yours is it’s not going to happen in the only way that would be assure if you didn’t have that kid…Its my baby as well and yes you are going to kill it I promise you you won’t make it through a full term”;
“quit trying to buy time [E.E.]…And time is running out a lot quicker than you think it is…come one [E.E.] it’s just a little maggot inside of you. I know you are a sloth also but get up. While you’re sleeping I’ll be busy…You can go get it done or I will have you do it yourself you pick…Since you have chosen not to take me seriously the price for that will be paid shortly and this will be just a taste of what is to come”;
“It’s just a matter of a little pill right now not too much longer it’s a matter of putting a shop vac up your cunt and sucking the body parts out…Time is of the essence love; I assure you your family will not be raising our child…your own hand [E.E.] your own hand think about it…There’s not going to be a child [E.E.]…Cuz I’m going to spend a lot of time in jail for what I’m going to do; Oh you motherfuckers think you going to play me I will put every one of your fucking throats. You’re going to get it now bitch you’re dead…affecting what I’m not going to let you have the kid…It takes one half second to slash a throat didn’t f-k with me.”
Hunter filed a motion to quash, arguing that it does not appear from the indictment that an offense was committed, and no legislative intent or legal precedent exists for the State to interpret his words as criminal solicitation of capital murder.
The district court granted the motion to quash, finding that the indictment does not allege an offense.

The district court did not err by granting the motion to quash

Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case.
Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history. Statutory construction is a question of law reviewed de novo.
Under Diruzzo v. State, 581 S.W.3d 788, 798 (Tex.Crim.App. 2019), a motion to quash tests the facial validity of the indictment as a matter of law.
Under Tex. Code Crim. Proc. Art. 1.14(b), an exception to an indictment that fails to charge an offense must be raised pretrial. Under Tex. Code Crim. Proc. Art. 27.08(1), a court may quash an indictment if it does not appear that it charges an offense. A defendant may seek construction of the statute under which the prosecution is brought.
Under Penal Code § § 19.02(b)(1), Capital Murder is committed if a person intentionally or knowingly causes the death of an individual under 10 years of age. Under Tex. Penal Code § 15.03, Criminal Solicitation is committed if, with intent that a capital felony or felony of the first degree be committed, a person requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, constitutes the felony or make the other a party to its commission.
Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.
Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder.
Under the plain language of § 19.06(1), if an unborn child’s death is charged to conduct committed by the unborn child’s mother, the mother’s conduct does is not a criminal offense under Chapter 19. And one cannot criminally solicit an act that is not an offense.
The district court’s order quashing the indictment is affirmed.

Johnson v. State, No. 14-18-00361-CR, 2020 Tex.App.-LEXIS 4189 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication) (Possession of Marijuana) [Police/citizen interactions]

Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. No bright-line rule governs when a consensual encounter becomes a detention. Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter. Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, no Fourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs. The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request.
Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error.

Facts:

Johnson was charged with Possession of Marijuana 2 ounces or less, a Class B misdemeanor.
At the MTS hearing, Officer Cox testified he was on patrol around midnight when he noticed a “suspicious vehicle” in a parking lot. Cox shined his spotlight twice across the vehicle, saw movement inside, and could tell two people occupied it. The vehicle had no lights on. Cox stopped his patrol car about 10-15 feet of the vehicle and activated his overhead lights. He approached the driver’s side. When the window came down, Cox detected the odor of marijuana and noticed that Johnson’s shorts were unbuttoned and unzipped.
The State offered the video from Cox’s patrol car, but Johnson objected to relevance, which was sustained. No other exhibit was admitted into evidence, so Cox’s testimony was the only evidence before the trial court for the MTS.
The trial court denied Johnson’s MTS with these FFCL: Cox was on routine patrol around midnight. As part of his routine patrol, he regularly checks the parking lot and spotlights vehicles parked overnight to deter drug activity and burglaries. That lot is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness. Cox had made several arrests in the months prior to this offense for such offenses in that lot. Cox spotted Johnson’s vehicle parked and observed movement inside. Cox did not block the vehicle from leaving. Cox observed the defendant’s pants were undone and detected the smell of marijuana. Officers do not need reasonable suspicion to initiate a consensual encounter. Cox’s initial encounter with Johnson was a proper consensual encounter that later evolved into an investigative detention. The fact that Cox activated his overhead lights alone did not elevate the consensual encounter into an investigative detention. If the initial encounter was a detention, it was supported by reasonable suspicion of criminal activity to detain Johnson based on specific, articulable facts of presence in the lot and a high crime area.
Johnson pleaded guilty and was sentenced to three days in jail.

A Fourth Amendment seizure had occurred before the car window was lowered, so the denial of the MTS was error

Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. No bright-line rule governs when a consensual encounter becomes a detention. Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter. Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, noFourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
The question of whether the facts show that a consensual encounter evolved into a detention is a legal issue reviewed de novo.
Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs. The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request.
Officer Cox-through a show of authority-sufficiently conveyed the message that Johnson was not free to leave or to ignore a request to lower the car window.
The error violated Johnson’s federal constitutional rights.
Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error.
Because the evidence seized-marijuana-was inculpatory, the court presumes the trial court’s erroneous denial of the MTS influenced Johnson’s decision to plead guilty.
The error is reversible. The trial court’s judgment is reversed, and the case is remanded for further proceedings.

Johnson v. State, No. 01-18-00897-CR, 2020 Tex.App.-LEXIS 4102 (Tex.App.-Houston [1st Dist.] May 28, 2020) (designated for publication) (Theft $2,500-$30,000) [IAC; admission of business records under Tex. Rule Evid. 803(6)]

Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, 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 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 ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy.
Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does not have to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared.

Facts:

Veronica and her husband Jorge Gonzalez arrived at a tire store in Gonzalez’s brown Chevrolet truck, which had tinted windows.
Upon arrival, Gonzalez parked in the back of the store’s lot and exited. Veronica remained inside the truck in the front passenger seat with the engine running. Veronica saw Johnson riding toward the truck on a bike. Johnson opened the unlocked door and entered. He had a screwdriver in his hand. Johnson did not hit or stab Veronica with the screwdriver or point it at her. Veronica first saw the screwdriver in his hand when his hand was on the gearshift.
Johnson put the truck into gear. Veronica felt scared and feared for her life. She opened her door and hung onto it while Johnson accelerated the truck backward and forward. Veronica landed on her feet and was not in the truck when Gonzalez appeared and threw a wrench at the truck, which broke its windshield. Gonzalez called 9-1-1. Johnson drove away. The truck was returned later that day.
Johnson was homeless. While driving his 1997 Dodge, he ran out of gas on a bridge late. Johnson locked his truck with his keys in the ignition. Officers arrived and a tow truck towed it. The officers took Johnson to a hospital for a psychological evaluation. He was discharged hours later. He remained on the property and was arrested for trespassing. Following release from jail, Johnson began hitchhiking to look for his truck. Johnson saw Gonzalez’s truck. Although it was not the same color and had tinted windows, because it was similar in brand and body style, Johnson’s “mind told [him]” that it was his. Johnson believed it had been stolen and someone altered its appearance. Johnson did not see anyone inside the truck because of the tinted windows. Johnson was going to open the truck using a multipurpose tool but entered without using the tool since it was unlocked. Upon entering, he saw a woman inside, which surprised him. The keys were in the ignition and the engine was running. Johnson held the tool in his hand while shifting gears, but he did not point it at the woman or threaten her. When the woman opened her door, Johnson hit the brake so that she could get out because he did not want her hurt. Johnson saw three men approaching the truck quickly, so he put it in drive. Someone threw something long and solid at the windshield.
Throughout trial, defense counsel argued that Johnson lacked the intent to commit theft because he believed that the truck was his.
Johnson’s stepfather testified that shortly before the incident, Johnson was outside his home pulling grass and rubbing it on himself. When Johnson was called out, he “looked like he was not there” and did not answer; he just stared. Later, Johnson walked across a ditch in mud and water, went on railroad tracks, laid down on the tracks, and started throwing rocks. Other testimony about bizarre behavior by Johnson was presented.
During trial, trial counsel sought to have Johnson’s medical records admitted into evidence, which provided evidence of his schizophrenia, but did not have either the custodian of records or another qualified witness to testify that the records were made at or near the time of the events.

Johnson received ineffective assistance of counsel

Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, 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 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 ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy.
Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does nothave to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared.
Trial counsel’s misunderstanding of the predicate for the introduction of medical records was not legitimate trial strategy, particularly where the records directly related to whether Johnson formed the requisite intent to commit theft. There wasno plausible, professional reason for the failure of trial counsel to properly prepare and offer the medical records into evidence in admissible form. There is sufficient evidence in the record establishing that trial counsel’s performance fell below an objective standard of reasonableness.
The medical records reveal that Johnson was diagnosed with mental health disorders, including psychotic disorder with delusions, antisocial personality disorder, schizophrenia, paranoid schizophrenia, depression, and bipolar disorder, and has been prescribed many antipsychotic and antidepressant medications over the years. He has been committed numerous times. He suffered a head injury and low range of intellectual functioning. His issues are significant, severe, and chronic. The issues cause him to be unable to stay focused or recall why he is present at certain places, and to engage in inappropriate and bizarre behavior.
The medical records provide context for why Johnson-as trial counsel argued-would have believed that the truck was his. Because of trial counsel’s misunderstanding of the predicate for the introduction of the records, the jury did not get a full opportunity to consider the defensive argument at trial-that appellant did not form the requisite intent to commit theft.
Johnson has shown a reasonable probability-sufficient to undermine confidence in the outcome-that but-for trial counsel’s deficiency, the result of the proceeding would have been different.
The judgment is reversed, and the case is remanded for a new trial.

Practical Handgun Laws and Defenses in Texas

Published on August 26, 2020

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As a child, my parents blessed my sister and me by taking us all over the world. On a European vacation, I met some friendly people from France. As most Europeans do, they spoke some English. Like most Americans, I spoke no French. When they asked where I was from, I told them Texas. Upon this response, they put their hands in the air like guns and said, “Bang bang, cowboys, Texas.” I chuckled and agreed while saying, “Yes, Texas.”

My meeting with the French couple happened in the ‘80s, and things have changed quite a bit since then. I remember rifles and shotguns in back windows. I remember my mom teaching me how to use my first gun, a Browning Auto .22 rifle. My friends and I used to walk down the street with our .22s. Not only have opinions about firearms changed and advocates become more vocal, but the laws regarding possessing firearms have also changed around the country and in Texas.

The physical response by the French couple was not a rarity. Most people I meet throughout the U.S. and around the world think of Texas as a rambunctious state. They still think Texas is the Wild West full of cowboys, guns, and all the trappings of such thoughts and beliefs. Surprisingly, Texas, unlike numerous other states, has quite a few laws regarding weapons, firearms, and, more specifically, stricter laws when it comes to handguns.

A. Firearm v. Handgun – Basic Definitions

Most of us regularly get asked questions like:

“Can I have a gun in my car?”

“Can I have a gun if (this)?”

“Can I have a gun if (that)?”

“What happens if…?”

Possession of firearms is often fact-specific to what type of firearm, where, and how. Let’s start with the different types of firearms and how the law is fairly specific as applied to each.

What is a firearm? The Texas Penal Code defines a firearm as:

(3) Firearm means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition

This definition generally follows the federal definition found in 18 U.S.C. § 921(a)(3). However, the federal definition also includes a firearm to be the “frame or receiver, a silencer, or a destructive device.” The frame or receiver provides housing for the hammer, bolt or breechblock, and firing mechanism, and is usually threaded at its forward portion to receive the barrel.

Well, what is a handgun? Federal and state laws are very similar here, as well. The Texas Penal Code defines a handgun as any firearm designed, made, or adapted to be fired with one hand.

With these basic definitions, we can delve into some of the intricacies of Texas gun laws.

B. Law on Handguns

Through the years, I have seen a lot of bad advice on social media regarding handguns. Because of this, I wanted to break down handguns or pistols (collectively herein called “handguns”) and the laws controlling them.

Almost everyone can picture what the handgun looks like when they think of the movie scene when Dirty Harry asks, “Do you feel lucky?” It’s the nickel-plated Smith and Wesson .44 revolver. Or, some may always remember the role of the Colt .45 seen in almost every war movie, or the Beretta 92 seen in Die Hard, The Bourne Series, C.S.I., The Sopranos, and more. A handgun is the gun you shape your hand into when you say “Bang,” as the French couple did. The common misconception about Texas and guns is you can get a gun and carry wherever you want (as long as you’re not a felon). However, most lawyers and those who are familiar with firearms know that is wrong.

“Constitutional carry” means the United States Constitution says you can carry a handgun how you want and not need a permit. Even though many have argued for and attempted to sway the legislature, Texas is still not a constitutional-carry state.

In Texas, to carry a handgun on one’s person, one must obtain an “LTC” or license to carry. To be eligible for an LTC, a person cannot be: (1) under 21 years of age; (2) a convicted felon; (3) a fugitive; (4) delinquent on child support; (5) and a few other things. If eligible, a person has to: (1) provide fingerprints; (2) a passport picture; (3) undergo a background check; (4) complete an application; (5) take a class; (6) pass a written test; (7) and pass a practical shooting test. Although it sounds difficult, honestly, it is not.

C. Laws If You Do Not Have an LTC

First, let’s discuss laws for a handgun for someone without a valid LTC. If someone does not have an LTC, they can possess a handgun: (1) on or about their person; (2) on premises they own or control; and (3) in their motor vehicle or watercraft. They can also possess a handgun while headed to or from the premises, to their motor vehicle, or vice versa. However, since the person in this example does not have an LTC, any handgun must be concealed while doing so. This means the handgun cannot be recklessly or intentionally in plain sight. Also, there are no restrictions on the gun being loaded or where it has to be. The handgun can be on the front seat of the vehicle and covered by a handkerchief. The handgun can be in their pocket, the glove box, or any other place as long as it is concealed.

What are “premises” as referred to above? Under Texas law, it means real property. It also means a motor vehicle designed to live in or a trailer with temporary living quarters inside (both are recreational vehicles). Such items are travel trailers, motor homes, a horse trailer with living quarters, a camper, etc.

Are there times when someone without an LTC cannot have a handgun in their motor vehicle or watercraft? The short answer is yes. If someone does not have an LTC, they can only have a handgun in their motor vehicle or watercraft if it is concealed. They can still face criminal charges of unlawfully carrying a weapon (UCW) if: (1) they are engaged in any criminal activity other than a class-C traffic or boating violation; (2) are otherwise prohibited from possessing it; (3) or are a member of a criminal street gang. The offense usually occurs or accompanies an arrest for driving while intoxicated, possession of marijuana or other prohibited substance, and reckless driving.

D. Unlawfully Carrying a Weapon

UCW with a handgun in Texas is a class-A misdemeanor under Texas Penal Code §46.02 with a possible range of punishment up to one year in county jail and up to a $4,000 fine. This punishment is usually more significant than the range associated with the underlying offense. Additionally, if someone does not have an LTC and carries a handgun into an establishment with a permit to sell alcoholic beverages, it is a third-degree felony with a range of punishment up to 10 years in prison and up to a $10,000 fine.

E. LTC Laws

Once a person gets their LTC, they can carry their handgun in more places than just their motor vehicle and other “premises.” However, there are still limits to the LTC.

Let’s begin with the LTC in a motor vehicle. Remember, a person without an LTC can have a handgun in their motor vehicle or watercraft, but it must be concealed. If someone has an LTC, any handgun must still be concealed unless it is in a shoulder or belt holster. If the handgun is in a shoulder or belt holster, then the handgun can be in plain view.

When I was a prosecutor, and the open-carry law came out, the funny discussion at the TDCAA Legislative update was, “What is a holster?” Well, nowhere in the statute is holster defined. Some funny memes circulated, including a gun in a sandal stuck in someone’s belt. In essence, a holster can be anything a person would place a handgun in. And, as long as the handgun is in a “holster,” the handgun can be anywhere in the vehicle. The handgun can be in a “holster” on the dashboard, the seat, on your waist, anywhere. However, whether someone would get arrested or charged could vary depending on the jurisdiction, an overzealous prosecutor, or an exuberant officer. This is one of those can’t-beat-the-ride scenario. Will it stick? Who knows. Since there is no statutory definition of a “shoulder or belt holster,” a jury somewhere could decide a sandal is not a holster.

Even with an LTC, there are places a handgun can’t be brought unless the licensee falls into an excepted group. Also, there are statutes allowing businesses and other public or private entities to prohibit a licensee from coming on the premises with a handgun.

Texas Penal Code §30.06 addresses the offense of trespass by a licensee with a concealed handgun. This offense requires notice to a licensee when the entity wishes to prohibit their entry with concealed handguns. Commonly referred to as “30.06 signs,” these have to meet every requirement outlined in Texas Penal Code §30.06. This section has a lot of things to unpack and deals explicitly with a licensee trespassing on specific properties prohibiting carrying a handgun by licensees. Section 30.06 also lays out the defenses licensees have if they do go on prohibited premises. If an entity has communicated in written form with “30.06” signs they’re prohibiting a licensee carrying a concealed handgun, the licensee shall not enter with a concealed handgun. Texas Penal Code §30.07 has all the same language of Section 30.06, but Section 30.07 relates to a licensee openly carrying a handgun on an entity’s premises. All warnings must be explicitly posted and follow Section 30.07 guidelines. If a licensee comes on the property in violation of either Section 30.06 or 30.07, it is a class-C offense with up to a $200 fine; it is a class-A misdemeanor if the licensee is told to leave and refuses to leave.

As defense attorneys, it is imperative to know the defenses available. There are myriad defenses to both Section 30.06 and Section 30.07, the biggest being if the person is personally told to leave, and he promptly does. Other defenses include being an owner, tenant, or guest of either an owner or tenant of a condominium, a rental unit, a manufactured home lot, and the individual possesses the handgun in the respective premises or is directly in transit to or from their motor vehicle or premises. Another defense is if the licensee is a volunteer E.M.S.

F. LTC and College Campuses

If not prohibited by some other law, anytime a licensee is in a public place, and the licensee intentionally displays the handgun in plain view of another, it is a violation of the law if it is not in a holster. Texas Penal Code §46.035(a-1) through (a-3) specifically addresses a licensee’s possession on institutions of higher education. While on the premises of an institution of higher education or the public or private driveway, garage, or parking lot of an institution of higher education, a licensee isn’t supposed to “flash” the handgun in plain view of another person, even if the handgun is in a holster. If an institution of higher education has established rules regarding licensees where a school-sponsored activity is taking place, and the institution provides notice in compliance with §30.06, a licensee cannot carry a handgun, holstered or not, on the grounds or building or in a vehicle of the institution. Additionally, a licensee cannot carry a concealed handgun on a portion of premises located on a campus of an institution of higher education if the institution provides notice complying with §30.06.

All the offenses in the previous paragraph are punishable as a class-A misdemeanor, and they also share the same defense to prosecution. It is a defense if, at the time of the commission, the licensee displayed the handgun when the licensee would have been justified in using force or deadly force. Also, §46.035(a-1) through (a3) does not apply to a historical reenactment in compliance with the Texas Alcoholic Beverages Commission.

G. More Premise Limitations

There are quite a few other places a licensee is forbidden from carrying a handgun, whether concealed or not, even if it is in a holster. One of these places is a bar––not the bar part of a restaurant, but a full-fledged bar, which includes any establishment making 51 percent or more of its income from on-premises sale or service of alcoholic beverages for consumption. These locations usually have the big red “51%” signs posted at their entrance. Another prohibited place to carry while possessing a valid LTC is on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place unless the licensee is a participant in an event where the handgun is used. The prohibition also includes the premises of a correctional facility like a county or city jail or prison, a hospital or nursing facility (unless the carrier has written authorization), an amusement park, or the premises of a civil commitment facility. Licensees also cannot carry into an open meeting of a governmental entity subject to Chapter 551 of the Government Code, and the entity provided notice of the meeting. Of course, being intoxicated and carrying a handgun under the authority of being a licensed carrier is against the law, whether holstered or not. Most of these are a class-A misdemeanors unless the licensee is in a bar or correctional facility, in which case it is a third-degree felony.

Texas Penal Code §46.03, “Places Weapons Prohibited,” limits where both licensees and non-licensees can possess certain other weapons and firearms, including a handgun, unless the individual falls under a particular exception. One of these prohibited places is the (1) physical premises of a school or educational institution, any grounds or building where there is a school activity or a transportation vehicle unless the person has written authorization from the school or the person has a valid LTC and the premises are an institution of higher education. Prohibited places also include (2) polling places during an active election, (3) government court or office utilized by the court unless given written authorization, (4) a racetrack, (5) the secured area of an airport (more on this later), and (6) within 1,000 feet of a prison where an execution is happening and the person received notice of the prohibition. Under this statute, if the weapon possessed was a firearm, including a handgun, the offense is a third-degree felony.

H. Exceptions to the Law

Further defenses to Section 46.03 (1-4) are if the person were in the actual discharge of duties as a member of the armed forces, National Guard, or a guard employed by a penal institution or an officer of the court.

No one has a defense to carrying while intoxicated. The legislature sometimes passes two versions of a statute, and §46.035(h-1) is no different. However, the versions are not too dissimilar. A judicial officer, as defined in Texas Government Code §411.201, and his bailiff escorting him, have a defense to prosecution to all the offenses listed in the first paragraph of Section G above. Volunteer emergency service personnel also share this defense. The next group consists of a judge or justice of a federal court, active judicial officers as defined in Texas Government Code §411.201 (duplicated by both versions of (h-1), attorney general, United States attorney, district attorney, criminal district attorney, county attorney, or an assistant of one of those attorney categories. This select group has a defense to prosecution to enter or remain on any of the places listed in the first paragraph of Section G unless the premises is a correctional facility or commitment facility.

If a hospital, nursing facility, amusement park, or open meeting of a governmental entity fails to provide valid notice by placing signage meeting the requirements of Sections 30.06 or 30.07, then a licensee can carry a handgun into those establishments as there is no crime.

More defenses exist for those who are inside the secure area of an airport, as well. The first defense is for a person traveling while or discharging their duties as a member of the armed forces or National Guard or as a guard at a penal institution. This defense also includes someone traveling while or discharging their duty as a commissioned security guard who is either wearing a distinctive uniform and his weapon is in plain view or is not wearing a uniform, and his weapon is concealed.

There are also specific protections for individuals who check their firearms following federal guidelines before entering the secure area. Likewise, it is a defense if a licensee carrying a concealed handgun enters the screening checkpoint for a secured area and leaves immediately after completing the screening process after notification he possessed the handgun (think of a person who forgot about the handgun in their bag). An officer cannot arrest a licensee who enters the secure area unless the officer tells the person about the defenses, allows the licensee an opportunity to exit the screening area, and the person does not leave.

Conclusion

Many people still think Texas is the Wild West where everyone rides horses to work, and everyone carries a gun. However, this gun-loving state has plenty of rules. If you didn’t know before reading through this, now you do. There are even deeper and more specific caveats throughout the weapons code in Texas. Texas gun laws offer cross-sections between the Government Code, the Penal Code, and the Federal Code. So take your time when researching defenses to a particular gun charge. Whether representing a client in a gun case or owning one yourself, it is always best to know the law.

Chapter and Verse: A Deep Dive into the CCP

Published on August 26, 2020

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I have noticed that as I get busy and old, I tend to fall into bad habits. One of those habits, which I have also noticed in other attorneys (none in TCDLA, of course) I call “practicing law by word of mouth.” By this, I mean relying on what other attorneys or judges say the law is rather than actually looking it up and reading it oneself. At that point, we may as well be taking legal advice from our client’s cell mate’s cousin, who once took a criminal justice class, and has reported to most of the tank that they are all entitled to that famous and elusive provision, §12.44(a).

I thought recently of my Southern Baptist adolescence, spent desperately paging through daily devotionals, where one read a short chunklet of the Bible and then a brief explanation or illustration of what it said with the intention of eventually familiarizing oneself with the most important selections of that impenetrable tome. If one can get twelve-year-olds to solemnly read the Pentateuch, I feel strongly that us grown-ups with law degrees can muddle our way through our own books of the law in similar fashion.

So, in order to try and combat my own laziness and ineffectiveness, I am endeavoring to read the entire Texas Code of Criminal Procedure, start to finish, and I am inviting you, dear friend, to do it with me. Of course, it would not be effective or efficient to reproduce the Code in its entirety in this humble article, but I will focus on what I think is interesting and important as we move forward. C’mon, you’ve already gotten this far, let’s go.

Dust off your code book and let’s open together to TCCP Art. 1.03, The Objects of this Code.

Section 1.03 outlines the reasons the State wanted to write this code in the first place – namely, to prevent crime, ensure the secure confinement of prisoners, effectuate fair and speedy trials, to produce relevant evidence, and to make sure sentences actually get carried out when they’re pronounced. Section 1.03 proclaims that it “make[s] the rules of procedure […] intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.”

I’m unconvinced that the code actually achieves any of these quite aspirational goals, starting with intelligibility, but I suppose as we move forward in this endeavor, we shall see for ourselves. I like the idea, though, of putting us all on notice of the rights we are losing to the State. The 4,000 year-old code of Ur-Namu, the written law of an ancient Sumerian king, emphasizes how important the availability of the law to the public is in its prologue, “…so the orphan is not delivered up to the rich man, so the widow is not delivered up to the mighty man…” I like that. That’s what our CCP says it’s trying to do, too, in its own inelegant way.

Check out Parker v. State, 745 SW 2d 934, which is an interesting case. In Parker, the trial judge threatened both the State and Defense attorneys in a DWI case with contempt if they dare tell the jury they could review evidence during deliberations. It seems that this inordinate pique came from the judge’s ill humor and desire to get things over with. The record is silent as to why neither attorney objected to this or what came later. One would imagine that the video would probably be helpful to one side or the other or why on earth would it be relevant in the first place? But during closing arguments, no one mentioned the option to the jury.

The jury, acting on its own, requested to see the video during deliberations. The judge pulled the jury out into the courtroom and basically told them, “Look, that’s going to be a real pain. We don’t have a lot of VCRs down here, one of them eats tapes, and we’d have to wait for the court next door to be done with theirs, so, like, I don’t really want to go through all that since you already saw it once. Just make up your minds and let’s gooooooooo.” More or less.

Parker got convicted and appealed. The 14^th COA really felt strongly about the fact that this, in spite of being unpreserved by a lack of objection, was harmful and prevented a fair trial. They felt so strongly, in fact, they quoted a flowery old 1914 case, from back when judges wrote with a bit of a flourish:

“No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded, if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside.”

Dang. That’s beautiful.

Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying

Published on August 26, 2020

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The job of the Aviation Medical Examiner (AME) in the aviator “Fitness for Flight” medical examination process is to coordinate the flow of information to the Federal Aviation Agency (FAA) so it may make an informed and safe decision regarding the aviator’s flying status. When an aviator has their flight physical, and there is a Driving While Intoxicated (DWI) charge or conviction noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to FAA. A DWI type charge can have many different names such as DUI (Driving Under the Influence), OWI (Operating While Intoxicated), and OUI (Operating Under the Influence, but for FAA purposes, they are all treated the same and mean that a driver was charged with or convicted of being intoxicated or impaired while driving. If there is a driving type intoxication offense noted, the FAA does not distinguish between intoxication or impairment that is caused by alcohol, a legal or illegal drug, a controlled substance (even if prescribed by a physician), or a combination thereof.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? First, he or she can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI conviction and/or license suspension event, as the aviator has 60 days after the event to notify the SHMSO. Should that 60-day window be missed, it is still better to report the event late then not at all. Normally, if late but still reported, the FAA response is to keep a memo in your file about the failure to report, and thereafter expunge it. Second, the AME will remind the aviator to request their driving record from their Department of Motor Vehicles. The AME will further request the aviator to obtain from his DWI lawyer all records from the DWI and license suspension cases so that they, too, can be given to the AME for review. By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along. Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a Human Interventional Motivational Study (HIMS) qualified AME (These AME’s have additional training and certification relating to a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol. Such aviators will not let the matter rest with mere submission of the flight physical exam.) These AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. Note, this process is fluid, and there are no guarantees that it will be successful. Accordingly, it is often the case that the aviator will become frustrated with the process. Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, success may be achieved.

Focusing on whether there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from a breath test or blood test, a deferment is the default FAA position. Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem. Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol. In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive. If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring the licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions. Also, in almost all cases, the FAA will require that the aviator participate an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings. Here, it is important that the aviator have a log which can be signed by the individual running each meeting to prove their attendance. Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation. It is here, by gathering, organizing, and assembling your sobriety and low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is a applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved. (https://himsprogram.com/Pilot-Referrals/). Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision. That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator apply only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay—about a year or more. Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command. The pilot can still fly with a certified flight instructor.

So, what advice do Senior AMEs give to their pilot applicants? To be blunt, never drink and drive. Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career, and your future. While it is legal in some states to drink and drive while not intoxicated, it is far safer to use a designated driver, ride-share vendor or taxi. If none are available show good judgment, and simply don’t drive after drinking or don’t drink if you must drive. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. In the first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI. It took five years of sobriety proof for that aviator to be returned to a flying status. The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason. Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

From an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA. Having this knowledge, allows the AME to guide you and your sobriety team to the best path to have your flying privileges reinstated. In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive. However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and, a lawyer experienced in FAA matters!

Balancing the Scales: A Closer Look at Ake v. Oklahoma

Published on August 26, 2020

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In October of 1979, Glen Burton Ake quit his job as an oil field worker. He and a co-worker, Steven Keith Hatch, borrowed a car and drove to the home of Reverend and Mrs. Richard Douglass. Ake and Hatch held the Douglass’s and their two children, Brooks and Leslie, at gunpoint. They bound and gagged the mother, father, and son and attempted to rape twelve year old Leslie. They then shot all four of the Douglass family. Reverend and Mrs. Douglass died, but the children survived.

This horrible, life shattering evening was the predicate to the United States Supreme Court case that leveled the playing field in criminal law more than any cases since Gideon v. Wainwright. Prior to Ake v. Oklahoma in 1985, there was no constitutional guarantee of funding for indigent defendants to obtain experts to mount a defense. Ake, and its progeny, recognized that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” ¹

This paper is going to take a closer look at Ake, its background and the Supreme Court’s holding. Next, we’ll take a look at how the law developed to its current state and its application in Texas. Finally, we’re going to look at some practical application points for obtaining funding for your indigent, or sometimes even retained clients to be able to participate meaningfully when their liberty is at stake.

A Closer Look At Ake

From the introduction to this paper we can see that the facts of The State of Oklahoma vs. Glen Burton Ake are horrific. Two parents murdered and a family devastated. The judicial process afforded to Glenn Ake leading up to his Supreme Court appeal was almost as bad. During arraignment on two counts of murder in the first degree and two counts of shooting with the intent to kill, Ake’s behavior was so bizarre that the trial judge, sua sponte, ordered Ake examined for competency. ² Ake was diagnosed with paranoid schizophrenia, and transferred to a state hospital with respect to his “present sanity”. ³

Six weeks after his transfer to the state hospital, Ake was declared competent to stand trial: as long as he had three daily doses of 200 milligrams each of Thorzine. For comparison, the current recommended dosage according to drugs.com is about 1/10th of that amount for the most severe cases of psychosis in an outpatient setting. Even the Oklahoma Court of Criminal Appeals acknowledged that Ake “stared vacantly ahead through the trial.” ⁴

In June of 1980 at a pretrial conference, Ake’s attorney informed the trial court that he intended to raise insanity as a defense to the charges against Ake. Ake’s attorney requested that the court either arrange for a psychiatrist to examine Mr. Ake for trial, or provide the funds for the tests to be arranged. The request was denied. ⁵

At trial the defense called each of the psychiatrists who had examined Mr. Ake at the state hospital to address his sanity at the time of the offense. However, none of those doctors examined Ake in regards to his sanity at the time of the offense. The State hammered that point on cross examination. The jury was instructed that Ake was presumed sane at the time of the offense unless he provided sufficient evidence to raise a reasonable doubt about his sanity at the time. ⁶ Ake had no expert witness to testify to his sanity. The jury rejected Ake’s defense of insanity and found him guilty on all counts.

At the sentencing proceeding no new evidence was presented. The State relied heavily on the testimony of the psychiatrists who all testified during the guilt phase that Ake was dangerous. Ake had no expert to rebut that testimony. He was sentenced to death on each of the murder counts and five hundred years imprisonment on the two counts of shooting with intent to kill. ⁷

Ake appealed to the Oklahoma Court of Criminal Appeals. He argued, among other issues, that as an indigent defendant he should have been provided the services of a court-appointed psychiatrist. His argument was rejected. The Oklahoma Court of Criminal Appeals held that even when attempting to impose the death penalty, “the State does not have a responsibility of providing such services to indigents charged with capital crimes.” ⁸

The Supreme Court granted certiorari and ultimately reversed the convictions. Relying on the Fifth and Fourteenth Amendments of the United States’ Constitution the Court determined that “mere access to the courthouse doors does not by itself assure” a fair trial. ⁹ Defendants needed “access to the raw materials integral to the building of an effective defense.” ¹⁰ The court applied a three part balancing test to determine when additional protections validated providing those raw materials: 1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the addition or substitute procedural safeguards that are sought and the risk of deprivation of the interest if the safeguards are not provided. ¹¹

In Ake’s case, the first factor, the private interest, was clear: the State wanted to kill him. On the second factor, the State’s interest, the Supreme Court noted the minimal financial burden in providing expert assistance and that “a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cause a pall on the accuracy of the verdict obtained.” ¹² Finally, the court recognized the necessity of psychiatric assistance crucial to mounting a defense. The three factors weighed heavily in Ake’s favor and his convictions were reversed.

In 1986 Glen Burton Ake was retried on two counts of First Degree Murder and two counts of Shooting with Intent to Kill. He was found guilty and sentenced to life imprisonment for each of the First Degree Murder charges and two hundred years imprisonment for each of the Shooting with Intent to Kill. ¹³ He died in a prison hospital April 23, 2011, at age 55.

The Aftermath of Ake

Ake v. Oklahoma provided a new foundation for obtaining expert assistance for indigent defendants. The specific holding, though, was narrow. The Supreme Court only ruled that “when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if a defendant cannot otherwise afford one.” ¹⁴

How is this applicable in non-capital cases? Can we obtain funds for experts for non-psychiatric issues? Does this type of assistance apply to pre-trial hearings? Is it a neutral expert, or one specifically provided for the defense? How can this standard affect other grounds for which a defendant should be entitled to expert assistance? Can this apply to a non-criminal case? We will address each of these critical questions in turn.

The Scope of Ake

As noted above, the holding in Ake was fairly limited. One of the first questions was if the right to expert assistance goes beyond psychiatric assistance. There were some early attempts by various States to limit Ake’s holding to psychiatric assistance only. ¹⁵

However, the general consensus among the states, including Texas, is that upon a showing of need, the court must provide an indigent defendant an expert, “regardless of the field.” ¹⁶ ¹⁷ (“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.”). The same conclusion was reached on whether Ake applied to non-capital cases, and is accepted by most courts. ¹⁸ (“We [do not] draw a decisive line for due process purposes between capital and noncapital cases.”) ¹⁹

What about a non-criminal or quasi-criminal proceeding? Interestingly, a case pre Ake established the scope of expert assistance beyond that of only the criminal defendant. Little v. Streater was a paternity action that the Supreme Court labeled as “quasi-criminal”. ²⁰ There an indigent defendant in a paternity suit had a right to a blood grouping test to determine paternity. ²¹

For non-criminal proceedings where indigent individuals are seeking court funded assistance, the Due Process analysis used in Ake is the same; weigh the private right balanced against the State’s interest and the probable value of the additional safeguard. Due process protections have been found to apply in a number of non-criminal proceedings. ²²

Whose Expert Is It?

Ake was vague on the question of what role the expert to be appointed would have in the case. It was not clear if a ‘neutral’ expert reporting to the court would satisfy due process protections, or if a Defendant was entitled to their own expert. Justice Rehnquist’s dissent in Ake even noted in the opinion that “I see no reason why the defendant should be entitled to an opposing view, or to a ‘defense’ advocate” ²³

Courts are split on the question. The Fifth Circuit has held that “a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies [the accused’s] rights” ²⁴

The Texas Court of Criminal Appeals, however, has ruled that a ‘disinterested’ expert witness does not satisfy the due process protections of Ake. ²⁵ The court recognized that a neutral examination could not provide technical assistance, evaluate strengths of a defense, identify weaknesses in the State’s case or witnesses, or be able to testify at trial for the defense if favorable. ²⁶ A defendant requires their own expert to help prepare and present their defense.

This does not mean that a defendant is entitled to an expert of their choosing. ²⁷ ³⁰ Simply put, if you cannot afford to hire the expert you love, love the expert you can afford.

Implications to Effective Representation

Now that our clients have the right to the assistance of an expert, what is our duty as attorneys to ask for that assistance? Does the failure to obtain an expert equate to a finding of ineffective assistance of counsel?

It may. If an attorney’s performance falls below “an objective standard of reasonableness under prevailing professional norms” that representation is ineffective.” ³¹

Briggs is a great case to review for appointed and retained attorneys alike. Ms. Briggs attorney was retained, and recognized that an expert was necessary to review medical records in a case involving the death of his client’s child. However she could not afford to retain experts. Ms. Briggs ultimately plead guilty to a lesser charge of injury to a child and was sentenced to seventeen years in prison. Her case was overturned on a writ of actual innocence and ineffective assistance of counsel. The court found that her attorney was ineffective in not procuring the necessary experts to investigate and assist in the case. ³² The court, quoting Wiggins and Strickland remind us that while “strategic choices… are virtually unchallengeable” we, as attorneys, “have a duty to make reasonable investigations” to make those strategic choices possible. ³³

What is an objective standard of reasonableness when it comes to seeking out and obtaining expert assistance? “Prevailing norms of practice as reflected in the American Bar Association standards and the like…are guides to determining what is reasonable.” ³⁴

The State Bar of Texas has adopted “Performance Guidelines for Non–Capital Criminal Defense Representation.” ³⁵ Specifically:

“Counsel should consider whether expert of investigative assistance, including consultation and testimony, is necessary and appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of expert when it is necessary or appropriate to:

The preparation of the defense;
Adequate understanding of the prosecution’s case;
Rebut the prosecution’s case or provide evidence to establish any defense;
Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”

³⁶

The test for effectiveness is the thoroughness of counsel’s investigation. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…” ³⁷ If an expert is consulted, and not used, or a theory investigated and not pursued, that is not ineffective. It’s when we don’t look or we don’t ask that our representation falls short.

Practical Applications

With the boundaries of Ake better defined, where does the rubber meet the road? How do we get the expert assistance we need to defend our clients? What if my client can pay me, but cannot afford to hire the expert we need? What can I do when the Judge says “no”?

The Motion

There is no specific format that any motion must be in. There are however some central points to include in your motion, as well as times where requests for assistance have failed because these things were not there.

Ex Parte

The first thing to note is that your motion for assistance should be ex parte. The foundation for this application comes from Ake itself. ³⁸ Texas courts, following the due process principles that Ake used reached the same conclusion. ³⁹

If, however the State wants to stick its nose in your request for assistance do not limit your argument for the ex parte aspect of your motion just to due process analysis. An attorney’s ability to retain an expert without the State’s input or even knowledge triggers equal protection, effective assistance of counsel, and due course constitutional arguments as well.

Statement of Indigence

The central issues in Ake are that you need some expert assistance, and your client cannot afford it. Your motion must include some showing that your client is indigent and the reasons why you are asking the court to pay, i.e. why is the expert necessary.

Standards to determine indigence are found in the Texas Code of Criminal Procedure section 26.04(m). In determining indigence a court may consider: a defendant’s income; sources of income; assets; property owned; outstanding obligations; necessary expenses; number and ages of dependents; and spousal income that is available to the defendant. ⁴⁰ The code specifically excludes a defendant’s ability to make bond, except that it reflects on their financial circumstances. ⁴¹

Additionally, Texas courts have held that it is the financial condition of the client, “not his parents or other relatives” that is relevant. ⁴² Indigence cannot be denied just because a defendant’s counsel is retained. ⁴³ The question of indigence is at the time of the application, not the arrest or even based on previous findings of indigence. ⁴⁴ Your motion does not have to lay out all of the arguments for indigence, but it must at least make the suggestion.

Centrality, Importance, and Complexity of the Issue to the Case

Just because you can get an expert does not mean that you will get an expert. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” ⁴⁵ “The burden is on the defendant to provide concrete reasons for why the expert should be appointed.” ⁴⁶

In Ehrke, an indigent defendant wanted an expert appointed to retest the methamphetamines he was charged with. The Court of Criminal Appeals held that the application was appropriately denied because his motion failed to make a preliminary showing of significance, or why there was any reason to doubt the first analysis. ⁴⁷ The court noted that motions which are denied tend to lack support for the request, such as affidavits or other evidence in support of the defensive theory, explanation of the defensive theory, or how an expert will help establish that theory. ⁴⁸

This doesn’t mean not to request the help to challenge what has been accepted as established expert or scientific evidence. Eyewitness ID, bite mark evidence, arson investigation, and even finger print analysis have been called into question and even debunked. Just make sure to give the court the reason why you need the help.

State all of your legal grounds

If you want to make your appellate counsel happy remember this one phrase: if you haven’t raised it, you’ve waived it.

Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. ⁴⁹ This means too that if you’re only ever making a due process argument your appellate counsel will never be able to argue your equal protection, right to counsel, due course of law, confrontation clause and due course of law arguments on appeal. An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. ⁵⁰

Some judges may grant your Ake motion without any real analysis or argument. Some may fight you tooth and nail to open the purse strings and you’re going to need to develop your record with affidavits and potentially even testimony to show what you need and why. At the very least, your motion should have in it every conceivable constitutional ground as a foundation for your request for assistance. Ake was decided on due process, but it is not the only leg the argument has to stand on.

What can you do when the Judge says “No”?

You’ve filed your motion and argued ex parte. You’ve shown a need and the centrality to your defensive theory, and supplemented with affidavits. You’ve urged and re-urged for your client and every time you hear “Denied counsel.” Or even better the judge gives you $250 for the DNA analysis central to your defense. Thanks…

What do you do? First you come to a hard realization: there is nothing we can do to make a judge do the right thing. They are not the judge because they are always right, they are always right because they are the judge… until they get overturned on appeal.

Most of the practical tips for what to do when you’re told “no” have already been addressed above. File your motion. Supplement and make your record. Make sure you’ve given your appellate counsel everything they need to develop a great argument on appeal if it’s needed. But also do all you can do. In Ex parte Briggs, discussed above, the Court of Criminal Appeals points out that if Ms. Briggs’ attorney had been denied the expert assistance he never sought he should have subpoenaed every doctor that ever made a note on the child’s health, introduce the medical records, and elicit their expert testimony. ⁵¹ If you’re denied the tools you need, use the tools you have.

Fighting the good fight does not hurt your client on appeal. In De Freece, the Court of Appeals attempted to explain away any harm of denying an expert because of defense counsel’s “admirable” cross-examination of the state’s psychological witness that succeeded in impeaching her without the benefit of expert assistance. ⁵² In response, the Court of Criminal Appeals pointed out that it “does not mean that he could not have done an even more effective job with the aid of an expert…” ⁵³

That is the point; to do a better job for our clients. Before 1984 our scales of justice had a notable tip. Indigent Defendant’s had no right to the very basic of resources for their defense. Unless they were independently wealthy they didn’t have the vast resources which are available to the State. Often those with significant resources got a better shake than those without. It goes without saying that the State will almost always possess significantly more resources than the accused. Ake v. Oklahoma put a thumb on that scale to help balance out the scales of justice. It’s up to you to use the tools that the Supreme Court has now provided.

Rethinking Article 38.23(a) Jury Instructions

Published on August 26, 2020

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No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, 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 this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a)

Defense counsel have struggled with the question of how a jury views an Article 38.23(a) jury instruction. Will the jury be able to provide the necessary system of checks and balances on a denial by a trial judge of a motion to suppress? Will the jury use their life experiences, including their history of encounters with law enforcement, while considering a 38.23(a) jury instruction? The frustrating reality is, we rarely hear of a jury agreeing with a 38.23(a) instruction. With juries rarely acting favorably on 38.23(a) instructions, the frequency of requests for such instructions tends to diminish over time.

The case law regarding obtaining these types of jury instructions is not exactly friendly toward defense counsel. In Serrano v. State, 464 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d), the officer claimed the defendant was speeding, conducted a traffic stop, claimed he smelled the odor of alcohol from the car, and suspected the defendant was intoxicated given the defendant’s bloodshot eyes and slurred speech. At the police station, the officer met with the breath test operator (BTO). The officer agreed with defense counsel that the BTO first came in contact with the defendant when they entered the intoxilyzer room where breath testing is conducted. In the intoxilyzer room, the BTO turned on a video recording device, read the defendant the statutory warning, and requested a breath sample. The video recorded for approximately six minutes before the BTO turned it off to conduct the breath test. The officer testified that there was no time lapse from when the video ended until the time the defendant provided his breath sample. The BTO testified that the BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The defense claimed the 15-minute period was not met so the breath test was inadmissible. The trial judge admitted the breath test into evidence, and the defense requested a 38.23(a) instruction which the trial judge denied. The defense claimed it raised the factual issue of whether the BTO waited 15 minutes before taking the breath sample. The court of appeals held that the defendant “failed to raise a fact issue about whether [the BTO] complied with Texas Administrative Code section 19.4(c)(1) and that Serrano therefore was not entitled to the submission of an article 38.23 instruction.”

In Villalobos v. State, 550 S.W.3d 364 (Tex. App. – Houston [14th Dist.] 2018, pet. ref’d), the court of appeals found that the trial judge reasonably concluded that the defendant was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and the area where the defendant was found was a suspicious place. The defendant requested a 38.23(a) instruction on the issue of “suspicious place” which was denied by the trial judge. The court of appeals found no authority for the claim that a defendant is entitled to a jury question regarding the legality of an arrest based on whether the defendant was found in a suspicious place. The court of appeals held that Article 38.23 applies only to illegally obtained evidence and does not address the legality of warrantless arrests.

In the recent published case of Sanchez v. State, No. 04-18-00302-CR (Tex. App. – San Antonio, April 17, 2019), an officer saw a defendant allegedly commit two distinct traffic violations: (1) failure to drive on the right side of the road in violation of Tex. Transp. Code Ann. § 545.051(a)(2); and (2) failure to signal a lane change in violation of Tex. Transp. Code Ann. § 545.104(a). Defense counsel requested a 38.23(a) instruction on these two issues which was denied by the trial judge. In affirming, the court of appeals began by stating Article 38.23(a) provides that illegally obtained evidence is inadmissible. The court of appeals stated that a 38.23(a) jury instruction is limited to disputed issues of fact material to a defendant’s claim that a constitutional or statutory violation renders certain evidence inadmissible. Three requirements must be met before a defendant is entitled to a 38.23(a) instruction: (1) evidence before the jury must raise an issue of fact; (2) evidence on that issue of fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Merely raising the contested factual issue during cross-examination is insufficient to create a factual dispute warranting a 38.23(a) instruction. Defense counsel must dispute the contested factual issue, otherwise the legality of the conduct is determined by the trial judge alone, as a question of law. Defense counsel must further dispute all other facts which are sufficient to support the lawfulness of the challenged conduct. Absent such contesting of all factual issues by defense counsel, “the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The court of appeals held that defense counsel failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the defendant turned left without signaling. Without such evidence, the defendant was not entitled to a 38.23(a) instruction.

In the recent published case of Olsen v. State, No. 01-18-00281-CR (Tex. App. – Houston [1st Dist.], April 14, 2020, no pet. h.), the defendant was convicted of felony DWI with a child passenger. The defendant requested a 38.23(a) instruction which was denied by the trial judge. The court of appeals affirmed and concluded that the defense did not contest the fact that the defendant allegedly exhibited clues on the SFST’s that were consistent with intoxication. The court of appeals stated that the defendant’s results on the HGN, WAT, and OLS were consistent with intoxication. The court of appeals noted that the officer’s subjective perception of the defendant’s physical and mental faculties was not a fact supporting probable cause, but the defendant’s performance on the SFST’s was a material fact supporting probable cause for the defendant’s arrest. The defense, however, did not contest this at trial. Because the defendant “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” The court of appeals then concluded that because the defendant “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [the defendant] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [the defendant’s] request to submit an Article 38.23 instruction to the jury.”

If you plan on seeking a 38.23(a) instruction in your case, be sure to adhere to the rationale of the foregoing case law, such that you are able to convince the trial judge to give you a 38.23(a) instruction. Additionally, during voir dire be sure to address 38.23(a) instructions with the venire panel. If argue and follow the rationale of the above case law and properly dispute the contested factual issue and obtain a 38.23(a) instruction, will the jury be sympathetic to your argument? You should voir dire the panel about their thoughts and feelings on your contested factual issue in general, before you decide which panel members would be acceptable jurors for your case. We all know you cannot talk about the facts of your case during voir dire and that you cannot commit a potential juror. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). You may, however, inquire into the venire member’s philosophical thoughts about the criminal justice system. Davis v. State, 349 S.W.3d 517 (Tex. Crim. App. 2011). Also, you may voir dire on the different standards of proof. Contreras v. State, 440 S.W.3d 85 (Tex. App. – Waco 2012, pet. dism’d). These are two powerful tools of inquiry, which can help you better determine which potential jurors may be receptive to your contested factual issue.

During the current period of acute awareness of social inequality, potential jurors should be open to express their views regarding such key issues as reasonable suspicion to detain a person and probable cause to arrest a person. We know that these standards of proof are covered during voir dire to help distinguish between the highest standard of beyond a reasonable doubt with the lesser known standards of proof. A potential juror with certain views on these issues may be, depending on the issues in your case, an excellent juror on the particular contested factual issue, in your case.

A reading of the 2020 article “The Supreme Court Built America’s Broken Policing System And It’s Working Just As Intended” by Paul Blumenthal in Huffpost provides particularly good thoughts on these issues for use by defense counsel during voir dire. As of July 26, 2020, this article may be found at https://www.huffpost.com/entry/police-george-floyd-supreme-court_n_5f175371c5b6cac5b7330b29?ncid=APPLENEWS00001. Mr. Blumenthal reminds us that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved two Black men repeatedly looking into a store window during the daytime and an officer finding that suspicious but the officer was unable to articulate why he found that suspicious. The two Black men refused to provide their names to the officer which further aroused the officer’s suspicion, so the officer grabbed the men, pushed them against a wall, and searched their bodies and pockets. This case involved the highly contentious stop-and-frisk of suspicious persons (mostly minorities) by police based upon reasonable suspicion and how stop-and-frisk is condoned by the courts. Mr. Blumenthal reminds us to hear again the prophetic warnings by the lone Terry dissenter, Justice William Douglas:

We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action . . . To give the police greater power than a magistrate is to take a long step down the totalitarian path . . . Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry v. Ohio, supra (Douglas, J., dissenting).

It has always been extremely difficult to find venire members who care about any of these issues, let alone someone on the trial or appellate bench who would voice the warnings voiced by Justice Douglas in Terry. Today, with the heightened concerns regarding social inequality, and specifically that of racial inequality, raise the question of what would your venire panel think, when asked about how much evidence an officer needs, before that officer could grab two Black men while they were repeatedly looking into a store window during the daytime, shove them against a wall, and search them? What should we brothers and sisters of the criminal defense bar think about this situation? I suggest that these issues should cause us to rethink Article 38.23(a) jury instructions and how we attempt to ensure that the people who are sworn in as jurors in our cases are best suited to be open to consider the contested factual issues which are present and argued. These issues should also cause us to rethink how our profession and the criminal justice system is viewed by venire and by the public at large. Good luck on your cases.

Current Issue: September 2020

Published on August 26, 2020

Columns/Current Issue

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Features

17 | Practical Handgun Laws and Defenses in Texas – By Ronnie Yeates
21 | Chapter and Verse: A Deep Dive into the CCP – By Allison Mathis
23 | Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying – By Dr. Arthur T. Hadley & J. Gary Trichter
25 | Balancing the Scales: A Closer Look at Ake vs. Oklahoma – By Clifford Duke
29 | Rethinking Article 38.23(a) Jury Instructions – By Michael C. Gross

Columns

Departments

5 | CLE Seminars and Meetings
32 | Significant Decisions Report

President’s Message: A Slippery Slope Usually Begins with a Delicate First Step

Published on August 26, 2020

Columns/President's Message

On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

Chief Executive Officer’s Perspective: The Value of Friendship

Published on August 26, 2020

Columns/Executive Officer's Perspective

“Make new friends but keep the old. One is silver and the other is gold.”

–Joseph Parry

We often have friends that we don’t see every day, yet when we do, we are able to pick up right where we left off – as if it was only yesterday. Friends like that are treasures, more valuable and precious than gold.

With all the stress, tragedy, and uncertainty of our world (which are only compounded by the nature of our profession), it is at times a real struggle to maintain a sense of normalcy. Sometimes it is all we can do to maintain our sanity. Then you throw the pandemic into the mix… We need those dear old friends now more than ever.

Now is the time for us to band together and rely on each other for support and tools to make it through this unprecedented time. While you are at it, why don’t you try to expand your sphere of close friends. TCDLA is the perfect place to both stay connected with old friends, as well as being fertile grounds to reach out and develop new relationships.

With an upcoming election, a seemingly unending pandemic, and the uncertainty of what the new normal will be in our practices, there will be many opportunities for us to share our positions and thoughts. We all have biases no matter what race, religion, or gender you are – these are facts. I encourage everyone to make new friends and take a moment to remind ourselves that it is OK to think differently. Share your thoughts, explain to someone while starting a healthy conversation where you both listen and hear each other – respectful debates are okay. This last month, I have learned so many things and realized I have biases and am learning how to acknowledge them to strip them away. I am also focusing on my personal growth and understanding the effects the pandemic is having on my mental health and taking stress to another level.

I recently talked with my mother about everything that was going on, and she made several comments that made me take a step back and process what she said. Mom has always had a narrow view of how things should be. The responses and opinions she gave surprised me because I never thought she would be open to change, or open to considering the positions of people who think differently than her. It was not only encouraging, it was heartwarming: We could have a discussion that would not end in an argument or hurt feelings.

At the end of the day, especially during these times, we all need friendship and a place we can go to talk, vent, and commiserate – especially with people who should understand us like nobody else can. We are all struggling with the lack of interaction and the challenges of today’s new norm. More than ever, we need to be kinder, hear the pleas for attention, and reach out to a friend, family member, or colleague. I challenge you to check in with someone each day, start your morning off by doing something for somebody else. Surround yourself with positivity, and those will be the gold and silver of old and new TCDLA provides!

Editor’s Comment: Agree to Disagree

Published on August 26, 2020

Columns/Editor's Comment

As criminal defense attorneys, each day we strive to advocate for and protect the rights of the accused, one citizen at a time. We do not punch a timeclock or have an eight-to-five job, and our work does not slow down or stop, even in the middle of a worldwide pandemic. We worry, obsess, and overcompensate while advocating for and defending our clients, often sacrificing time with family, friends, and loved ones. It is our belief and mission that we stand between the government and our clients, defending their liberty and protecting their rights, regardless of the circumstances. We are united in our belief that every defendant has a right to be heard and their constitutional rights protected at any cost. It is this belief system, which is engrained in us as defense lawyers, which has its origin and roots in the actions and deeds of our founding fathers, that we use as our mantra every day to protect those who cannot protect themselves.

Between all our members, we obviously have differences in our opinions regarding politics, social and economic policy, and other personally held beliefs and convictions. We all have a right to express those personal opinions and beliefs, but we should be tolerant and mindful of those who disagree with us. It is a healthy debate for our democracy, to agree to disagree on issues of social and cultural policy, politics, or other personal beliefs and convictions, which we hold as individuals in a democratic society. However, from time to time, we should be reminded that, as criminal defense attorneys, there is more that binds us than divides us, as we fight the common enemy to protect and advocate on behalf of the accused.

When we rang in the New Year, welcoming in 2020 on January 1st of this year, I don’t know that any of us would have thought this is where we would find ourselves in September, amid the worst worldwide pandemic since the Spanish Flu. The ability to practice law, specifically criminal defense work, has changed dramatically in the last six months and morphed into something no one could have imagined such a short time ago. It has taken the resiliency of our criminal defense bar statewide to ensure that the rights of the accused have been and continue to be protected as we adjust to this new normal.

Then George Floyd died, and those who are alleged to have been responsible for his death have been charged and arrested. As we had commented on previously, those individuals are entitled to and will have their day in court, as should all who stand accused of criminal conduct, however detestable or abhorrent it may be. Civil unrest grew and festered as it does, but this time the result was an outpouring of protests nationwide calling for police reform and social change, which has been long overdue.

I am sure everyone has a different opinion on how and why these protests occurred, and to what degree they were peaceful or ended up being non-peaceful. However, what has happened as these events have unfolded is the issues have become polarized, both politically and socially, and when we can’t agree, we sometimes label those we disagree with on the very issues and social change we are fighting for. Labels are a dangerous thing and far too easy to throw around, especially in our new digital age where a tweet or a Facebook post can be seen and ultimately heard instantaneously. As criminal defense attorneys, we fight every day in courts throughout the nation and this state, to prevent our clients from being labeled and discarded because of that label. Just because we do not agree with one another about certain issues does not mean we cannot have a civil disagreement regarding those issues, and at no time should our disagreements result in name-calling and labeling of those who oppose our beliefs or viewpoint.

John Lewis, in his last speech to America, stated, “Ordinary people with extraordinary vision can redeem the soul of America by getting in what I call good, necessary trouble.” Ladies and gentlemen, he is speaking to us. As criminal defense attorneys, we are at the forefront of getting into good and necessary trouble and fighting for the rights of the accused, which all too frequently are threatened, often involving components of racial injustice. We are on the same team, and we can agree to disagree, but should always be courteous to our fellow brothers and sisters who are in this fight with us, and always conduct ourselves as professionals.

Given the current state of the practice of law, specifically as it concerns the criminal defense bar, it is now more important than ever that we stay TCDLA Strong, and we fight for those who cannot fight for themselves. The pandemic has not yet run its course. Racism, sexism, hatred, and bigotry are unfortunately alive and well. There are constant attacks upon our freedoms and liberty, and continuous attempts to erode the very underpinnings of our constitution and the rule of law. Rest assured there will be other hurdles ahead, but, as the largest and strongest statewide criminal defense organization in the nation, we will and must face these together.

We draw upon and from each other, and it is our collective life experiences, diverse as they are, that enable us to grow and shape our lives and careers. It is this collective experience and diversity that makes us better advocates and stronger as an organization. Let us remember who we are, and what our mission statement is, by conducting ourselves with the dignity deserving of our life’s work while being respectful of each member’s beliefs and their right to hold those beliefs. Be safe, be strong, and always fight the good fight.

This editorial column is dedicated to Sarah Roland, who has given so much time and personal sacrifice in making the Voice the great resource and publication that it is today.

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August 2020

Supreme Court of the United States

United States Court of Appeals for the Fifth Circuit

Texas Court of Criminal Appeals

Texas Courts of Appeals

A. Firearm v. Handgun – Basic Definitions

B. Law on Handguns

C. Laws If You Do Not Have an LTC

D. Unlawfully Carrying a Weapon

E. LTC Laws

F. LTC and College Campuses

G. More Premise Limitations

A Closer Look At Ake

The Aftermath of Ake

The Scope of Ake

Whose Expert Is It?

Implications to Effective Representation

Practical Applications

The Motion

Ex Parte

Statement of Indigence

Centrality, Importance, and Complexity of the Issue to the Case

State all of your legal grounds

What can you do when the Judge says “No”?