August 2011

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

As I was perusing my typical news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to "friend" the defendant in the case on Facebook.  That's the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.  It is probably prudent to have a standard Facebook jury instruction.

Here's our weekly review of obscure Texas laws.  Although enacted in 1989, this harkens back to the era when SMU football was a powerhouse (before they received the death penalty).  I don't know whether they have a similar law in Florida, but from the looks of things the Miami Hurricanes may be finding out real soon.

Section 32.441 - Illegal Recruitment of an Athlete

Under this law, "[a] person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics."

Of course there is an exception if the person providing the benefit is related to the athlete.

Violations of this law are broken down as follows:
(1) Class C misdemeanor if the value of the benefit is less than $20;
(2) Class B misdemeanor if the value of the benefit is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the benefit is $500 or more but less than $1,500;
(4) state jail felony if the value of the benefit is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the benefit is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the benefit is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the benefit is $200,000 or more.

This is one of those laws, however, in which you might see a lot of prosecutorial discretion.  After all, the elected district attorney might not position himself well for reelection if he goes around prosecuting the local cattle barons and oil tycoons.

I love technology - from tablet computers to smartphones to flat-screen televisions.  If it's shiny and new and guaranteed to make me the envy of my friends and family, I'll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we've lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother's truck to track its movements.  Hernandez was arrested while driving his brother's truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother's vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents' use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80's and 90's.  Accordingly, the Court upheld the trial court's denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.

Before my wife and I had children, I was used to running quick errands to the store in a matter of minutes.  When the rugrats arrived, the quick errands required carseats, strollers, diaper bags, etc.  While I am now somewhat of a pro at running errands with children, I didn't adapt all that quickly.  The first time I took my son to the store with me it was dark outside and he was asleep in his car seat.  I pulled up to Best Buy and completely forgot that I had him with me.  About 5 minutes after walking through the aisles I realized what I had done.  I'm sure I resembled the mother from the movie Home Alone as I darted out of the store to get my baby and bring him back in with me.  I can only imagine what the employees that guard the doors must have thought.  Well, Texas doesn't take kindly to idiot parents like me (correction: like I used to be).

Section 22.10 - Leaving a Child in a Vehicle

Under this law, it is a class C misdemeanor for intentionally or knowingly leaving a child in a vehicle for longer than five minutes if that the child is younger than seven years of age; and not attended by an individual in the vehicle who is 14 years of age or older.

Okay, so I might not have been in trouble because (a) I did not intentionally leave my child in the car and (b) there is a decent argument that as a stupid new parent I also did not knowingly leave him in there, and (c) I didn't leave him in there for more than 5 minutes, but others may not be so lucky.  In all seriousness, however, if you ever see a small child locked in a vehicle (especially in the Texas summer heat), call the authorities immediately.  This law exists because children have died from the heat or cold of being locked in a car.