February 2015

Mosquitoes are pesky little things. They land on you, insert a sharp needle-like nose into your arm and suck your blood without even asking for permission. Well, like the hard slap of a hand on top of one of these pests, Texas courts are finally falling in line behind the Supreme Court's ruling in Missouri v. McNeely (133 S. Ct. 1551 (2013)) striking down warrantless blood draws of a driver's blood in DWI cases.

Last month, the Second District Court of Appeals in Burks v. State held that a warrantless, nonconsensual blood draw - even conducted pursuant to the mandatory-blood-draw and implied-consent provisions of the Texas Transportation Code violates the Fourth Amendment to the United State's Constitution.

The defendant in the Burks case was pulled over for changing lanes without signaling. A North Richland Hills police officer pulled him over and developed probable cause to arrest him for DWI. Because the defendant had been convicted twice before for DWI, the officer relied on Texas Transportation Code 724.012 to take the defendant's blood without consent and without a warrant. Texas Transportation Code 724.012 provides that an officer may obtain a blood sample from a defendant without consent and without a warrant if the defendant on two or more occasions had been previously convicted or placed on community supervision for Driving While Intoxicated.

The Second Court of Appeals specifically held that this type of blood draw, despite being authorized by a state statute, still violates the Fourth Amendment's protection from unreasonable searches and seizures. In addition to the Supreme Court's ruling in McNeely, the court here relied on the Texas Court of Criminal Appeals decision in State v. Villarreal (No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), which held also that a warrantless, nonconsensual draw of a DWI suspect's blood does not categorically fall within any recognized exception to the Fourth Amendment's warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.

What does all this mean? As we've said in the past, the demise of warrantless blood draws for drivers in Texas continues to remain imminent and cases like Burks continue to reinforce the fact that the teeth of the United State's Constitution bite much harder than the needle of an unreasonable search and seizure.

If you're reading this, odds are that you've been ticketed for one or more traffic offenses at some point in your life.  Among the ticket-receiving public, misconceptions and misunderstandings abound regarding whether you should "fight" a ticket. Below is some advice from a former municipal prosecutor in the Dallas Fort Worth metroplex...

1) It is unlikely that you can just "talk to a prosecutor" and get your ticket dismissed.
Two to three times a week, most courts hold conferences between the prosecutor and citizens who have violated traffic offenses. During these conferences, most people go to the prosecutor immediately to ask for a dismissal on their citation. I would venture to say that in a metropolitan area, a municipal prosecutor gets asked for a dismissal between 25-50 times per week. Starting your conversation off with a prosecutor by asking for a dismissal is the least effective approach for negotiating a favorable result. The concept of a dismissal is WIDELY misunderstood and the bottom line is that dismissals are rare.

2) Instead of demanding your dismissal, start by pointing out legitimate issues with your ticket.
There are legitimate issues with citations. Those issues can result in dismissals. But for every one legitimate issue, there are one-hundred ridiculous excuses. A municipal prosecutor has heard them all and there is a really good chance that the prosecutor has heard your specific excuse many, many times. Most of the time, people come go to court with an assumption about the law and they hang on to it with everything they are worth. Do some research before coming to court to determine whether you have a "legitimate issue" or just "another excuse". Whether that means consulting with an attorney or jumping onto Google, come to court with a little research and you may actually put the prosecutor in a better mood.

3) Document your defense.
If you have documentation (especially on vehicle equipment issues, inspections, registrations, licenses, and insurance), bring it to court and have it ORGANIZED and ready for the prosecutor to look at. If there is some legitimate discrepancy between the status of your vehicle or license (on the date of the citation) and the citation you received you might actually get that all-elusive dismissal, but you had better have documentation to support your defense.

4) "Fine, I'll take it to trial."
It's got a nice ring to it, but the reality of a trial is that most cases will come down to the officer's testimony versus the defendant's testimony. More than likely, the officer will testify that he's been an officer for multiple years, been through training and education specifically for observing and enforcing traffic violations. He'll also testify that he spends 90% of his 8-10 hour shift in and amongst traffic observing traffic and that he was focused solely on looking for your vehicle violating a traffic law. Meanwhile, you'll testify (if you choose to testify) that you're number one priority was not following the traffic laws (I dare you to say that it was), but that you were on the way to work, dropping kids off at school, going to the grocery store or had some other objective in mind. The bottom line with trial: The officer will testify that he observed you commit a traffic violation and you'll testify you didn't and the judge or jury will decide who they believe.

5) If you really want a chance...
..hire an attorney. He or she will analyze your citation based on current law and the rules of evidence and procedure and not just based on what you heard from your neighbor's friend's ex boyfriend. Ultimately, you may decide that hiring an attorney would cost more than it is worth, but it you really want a fighting chance, you should hire an attorney.

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of "mental retardation," in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine "that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty." 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

• Did those who knew the person best during the developmental stage - his family, friends, teachers, employers, and authorities - think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
• Has the person formulated plans and carried them through, or is his conduct impulsive?
• Does his conduct show leadership, or does it show that he is led around by others?
• Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
• Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
• Can the person hide facts or lie effectively in his own or others' interests?
• Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Domestic Violence Case Law Update.  Continuous Family Violence.

Except for the military context, you've always heard that a jury verdict must be unanimous, right?  Well, not exactly.

Recently, the Sixth Court of Appeals (Texarkana) held that a jury does not have to unanimously agree upon which assaults occurred in order to convict a defendant for Continuous Family Violence, as long as the jury agrees that the defendant committed at least two assaults within the time allotted by statute. Under section 25.11 of the Texas Penal Code, a person who assaults a family member two or more times within twelve months commits Continuous Family Violence. The relevant statutes provides:

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

In Hill v. State, the appellant was charged with Continuous Family Violence after the State alleged that the appellant assaulted his girlfriend three times on two different dates within a twelve-month period. The jury returned a guilty verdict, and on appeal, the appellant contended that the trial court erred when it did not instruct the jury that in order to convict, the jury must unanimously agree upon which assaults transpired. Thus, of the possible assaults that may have happened, the appellant argued that some of the jurors cannot find sufficient evidence for one assault and the other jurors find sufficient evidence for another because "it is axiomatic that Texas law requires a unanimous verdict in a felony case."

Nevertheless, the Court rejected this reasoning. The State advocated following the way of the Continuous Sexual Abuse statute and allow jurors to not unanimously agree on which assaults occurred, so long as the jury agrees beyond a reasonable doubt that at least two assaults did occur within twelve months of each other. Adopting this rationale, the Court ultimately held, "In the circumstances of construing the statute under examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and agree that a defendant committed two of them without the concomitant requirement that the jurors be shown to all concur as to which of the acts did occur."

As such, as long as a jury unanimously agrees that a defendant assaulted a family member at least twice within twelve months, it does not need to agree upon which assaults actually occurred.  (Note: this same logic applies to continuous sexual abuse cases as well.)