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

Voice for the Defense Volume 47, No. 4 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

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

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

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

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

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

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

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

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

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

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

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

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

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

United States Court of Appeals for the Fifth Circuit

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dissenting opinion

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

Editor’s Note:

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

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

Texas Courts of Appeals

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Michael Mowla
Michael Mowla
Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

Previous Story

April 2018 SDR – Voice for the Defense Vol. 47, No. 3

Next Story

June 2018 SDR – Voice for the Defense Vol. 47, No. 5

Latest from SDR