May 2017

Is "Unconfirmed" Insurance Enough to Justify a Traffic Stop?

While conducting surveillance on an illegal immigration investigation, Homeland Security agents saw a vehicle leave a residence suspected of harboring undocumented immigrants. The agents notified local police officers to be-on-the-lookout for the vehicle. While on patrol, an officer began to follow the defendant’s vehicle because it matched the description of the vehicle from Homeland Security. While following the vehicle, the local officer entered its license plate number into a computer database designed to return vehicle information such as insurance status. The computer indicated the insurance status was “unconfirmed.” Based on his experience using this system, the officer reasoned that the vehicle was most likely uninsured, which is, of course, a violation of Texas law. The officer then conducted a traffic stop of the vehicle and learned that the defendant was in the United States illegally. The officer issued the defendant citations for violating the insurance requirement and driving without a license while he waited for the Homeland Security agents to arrive.

Defendant Challenges the Stop, Arguing that the Officer Lacked Reasonable Suspicion.

The United States government charged the defendant with conspiracy to harbor illegal aliens. The defendant argued that the “unconfirmed” insurance status obtained from the state computer database did not provide the officer reasonable suspicion to stop the defendant. The trial court was unconvinced by this argument.

The 5th Circuit Court of Appeals recognized that it had not yet addressed whether a state computer database indication of insurance status establishes reasonable suspicion as a matter of law. However, the court commented that the Sixth, Seventh, Eighth, and Tenth Circuits have found that such information may give rise to reasonable suspicion as long as there is either some evidence suggesting the database is reliable or at least an absence of evidence that it is unreliable. In this case, the court followed the other circuits that have decided this issue and held that a state computer database indication of insurance status may establish reasonable suspicion when the officer is familiar with the database and the system itself is reliable.

5th Circuit Upholds the Stop, Finding that "Unconfirmed" Insurance Creates Reasonable Suspicion.

Here, the court found that the officer’s testimony established the reliability of the database. First, the officer explained the process for inputting license plate information. Second, the officer described how records in the database are kept and stated that he was familiar with these records. Finally, the officer testified that based on his knowledge and experience as a police officer, he knows a suspect vehicle is uninsured when an “unconfirmed” status appears because the computer system will either return an “insurance confirmed,” or “unconfirmed” response. As a result, the court held that the officer had reasonable suspicion to stop the defendant.

Read the court’s full opinion in UNITED STATES V. BROCA-MARTINEZ, 2017 U.S. App. LEXIS 7612 (5th Cir. Tex. Apr. 28, 2017)

“Buyer’s Remorse”—Rolling the Dice on Plea Deals

The Court of Criminal Appeals recently handed down an opinion concerning a motion for a new trial based on evidence obtained from a co-defendant’s motion to suppress hearing. The issues facing the Court were whether the defendant, who had recently entered into a plea deal, satisfied the requirements for granting a new trial on the basis of such evidence; and, whether the defendant’s ineffective assistance of counsel claim was properly brought before the court.

State of Texas v. Arizmendi (Court of Criminal Appeals, 2017)

The Facts — Trial Court Granted Defendant’s Motion for New Trial in the “Interest of Justice.”

Rosa Arizmendi, Defendant, was convicted (after pleading guilty) for being in possession of more than 400 grams of methamphetamine with intent to deliver after officers stopped her co-defendant’s vehicle, of which she was a passenger. Both Defendant and Co-defendant were arrested as a result of the stop. On April 28, 2015, Defendant entered into a plea deal, receiving twenty-five years confinement and a $5,000 fine. Additionally, Defendant voluntarily waived her right to appeal.

Six days later, a hearing for a motion to suppress was held regarding Co-defendant’s case. The video of the stop was introduced into evidence, and the arresting officer testified, noting that he initially noticed the vehicle because it looked clean and subsequently stopped the vehicle for crossing over the while line delineating the roadway from the improved shoulder. However, the trial court concluded that Co-defendant’s vehicle was not in any violation of Texas law. The Court explained that the vehicle only came in close proximity of and possibly touched the inside portion of the white line, which is not a violation of Texas law. Thus, granting Co-defendant’s motion. See, State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016).

Based on this information, Defendant filed a motion for new trial, “in the interest of justice,” alleging the verdict in her case was contrary to the law and evidence. Defendant’s motion referred to Co-defendant’s hearing alleging a lack of probable cause or other lawful reasons for the stop. Furthermore, Defendant asserted the officer’s testimony was new evidence not available at the time of Defendant’s guilty plea. Defendant’s counsel further asserted that because she failed to tell Defendant that a motion to suppress was an option, Defendant received ineffective assistance.

The State argued that Defendant waived her right to appeal as a result of the plea deal and had not presented any new evidence likely to result in a different ruling. Noting, all evidence could have been discovered had Defendant been diligent. The State further asserted that Defendant was merely suffering from “buyers remorse.” Moreover, the State contended Defendant’s ineffective assistance claim was not apart of the original motion for new trial and, therefore, was untimely. However, the trial court rejected these arguments and granted Defendant’s motion for new trial “in the interest of justice,” and the State appealed.

The Court of Appeals Affirmed the Trial Court’s Decision — Holding Defendant Satisfied the Requirements for Granting a New Trial Based on Newly Discovered Evidence.

On appeal the State contended that the trial court abused its discretion in granting Defendant’s motion and further reiterated its previous assertions.

The Court of Appeals, however, rejected the State’s arguments. The Court held Defendant’s motion was not barred because the trial court implicitly granted Defendant permission to appeal when it set Defendant’s motion for hearing. The Court also determined Defendant did, in fact, present new evidence. The video of the stop did not contain audio and, therefore, the testimony was new because it was not available at the time of Defendant’s plea. Accordingly, since the Court found there was new evidence they declined to rule on the ineffective assistance claim and affirmed the trial court’s ruling.

The Court of Criminal Appeals Reversed and Remanded — Holding Defendant did not Satisfy the Requirements for Relief.

The State appealed again and the Court of Criminal Appeals reversed the lower courts’ decisions. Here, Defendant pled guilty pursuant to a plea deal and after learning of her co-defendant’s favorable outcome Defendant filed a motion for new trial. The Court concluded that Defendant’s assertions were without merit because her failure to discover “new evidence” was a result of her own lack of due diligence. Furthermore, the “new evidence” Defendant asserts was either cumulative, collateral, or would not have brought about a different result.

To obtain relief the Court noted Defendant must satisfy the following four-prong test:
• The newly discovered evidence was unknown or unavailable to Defendant at the time of trial;
• Defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
• The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and,
• The new evidence is probably true and will probably bring about a different result in a new trial.

Defendant asserted the following as newly discovered evidence:
• The trial court’s ruling on Co-defendant’s motion to suppress;
• The testimony of the arresting officer at Co-defendant’s suppression hearing; and,
• The arresting officer’s statement about Defendant’s vehicle being a clean vehicle.

First, the Court explained that the trial court’s ruling on the motion to suppress was not evidence; it was only a legal determination. And, furthermore, even if it was considered evidence Defendant’s failure to discover was due to her own lack of due diligence. Second, the officer’s testimony was evidence, but aside from the testimony regarding the clean vehicle, it was merely cumulative and Defendant had access to the video, which conveyed the very same facts as the testimony. Furthermore, the Court determined the officer’s testimony regarding the clean vehicle was collateral, at best. The Court explained that the officer’s subjective intent was irrelevant to the ruling. Moreover, Defendant could have sought a police report or even filed her own motion to suppress to obtain such evidence—just as her co-defendant did. Finally, the Court concluded that Defendant’s ineffective assistance claim was not properly before the court because it was not made within thirty days of the judgment and, therefore, was untimely.

Thus, all evidence Defendant asserts as “new” was either cumulative, collateral, or would not have brought about a different result. As such, the Court reversed the lower courts’ decisions and remanded with instructions to reinstate Defendant’s judgment and sentence.

This case prompted two concurring opinions and a dissent. See below.

Arizmendi Hervey Concurrence
Arizmendi Newell Concurrence
Arizmendi Alcala Dissent

Takeaways

It is paramount that defense attorneys review all evidence and timely seek any additional evidence that may be relevant to a client’s case. Moreover, it is crucial for attorneys to provide clients with all possible options and outcomes before entering into a plea deal. Here, Defendant had all the same options as her co-defendant; however, Defendant was not properly counseled and, consequently, Defendant will spend twenty-five years in prison while her co-defendant remains free.

Misapplication of Fiduciary Property—What is it?

Misapplication of fiduciary property is a charge that is aimed at protecting beneficiaries of trusts, estates, receiverships and the like. Pursuant to Section 32.45 of the Texas Penal Code, a person commits the offense of misapplication of fiduciary property by intentionally, knowingly, or recklessly misapplying property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property. Tex. Penal Code Ann. § 32.45(b). “Substantial risk of loss” means a real possibility of loss. Casillas v. State, 733 S.W.2d 158, 163¬–64 (Tex. Crim. App. 1986). However, the possibility need not rise to the level of a substantial certainty (which is required for theft)—the risk of loss need only be more likely than not. Id.

Who is a “Fiduciary” Under Texas Law?

The penal code sets out four distinct groups that are considered fiduciaries pursuant to Section 32.45. These include:

• A trustee, guardian, administrator, executor, conservator, and receiver;
• An attorney in fact or agent appointed under a durable power of attorney;
• An officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary; or,
• Any other person acting in a fiduciary capacity.

Id. at § 32.45(a)(1).

“Acting in a fiduciary capacity” is not defined in the penal code. However, the Texas Court of Criminal Appeals determined that because “fiduciary” has such a common meaning it should be construed according to its plain meaning. Berry v. State, 424 S.W.3d 579 (Tex. Crim. App. 2014).

The plain meaning of fiduciary means, “holding, held, or founded in trust or confidence.” More notably, a person who acts as a fiduciary is one “who has a duty, created by his own undertaking, to act primarily for another person's benefit in matters connected with such undertaking.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.). For example, courts have held that a person acts in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his or for his own benefit, but for the benefit of another person as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no writ).

Additionally, a person acting in a fiduciary capacity embraces any fiduciary, including a joint adventurer or partner. Coplin v. State, 585 S.W.2d 734 (Tex. Crim. App. 1979). This does not, however, include everyday business dealings. Berry, 424 S.W.3d at 584. The Court of Criminal appeals assume such transactions are entered into for a mutual benefit and, therefore, neither party is expected to act solely for the benefit of the other. Id.

What does it mean to “Misapply” Property?

The definition of “misapply” is fairly broad under the penal code. Pursuant to Section 32.45, a person who is a fiduciary misapplies property held as a fiduciary if the person deals property contrary to:

• An agreement under which the fiduciary holds the property; or
• A law prescribing the custody or disposition of the property.

Evidence that a defendant aided another person in misapplying property is sufficient, pursuant to the law of parties, to convict a defendant of misapplication of fiduciary property—even if the defendant did not personally handle the misapplied funds. Head v. State, 299 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Furthermore, a defendant need not receive a benefit in order to misapply property. Talamantez v. State, 790 S.W.2d 33,37 (Tex. App.—San Antonio 1990, pet. Ref’d). Nor does it matter if a defendant donated the property to charity. Little v. State, 699 S.W.2d 316, 318 (Tex. App.—San Antonio 1985, no pet.).

Therefore, misapplication can occur by an omission or failure to act where a duty to act exists. Coleman v. State, 131 S.W.3d 303, 309-10 (Tex. App.—Corpus Christi 2004, pet. ref'd).

What does it take to Prove up an Agreement?

The government must prove the defendant knew of the agreement for misapplication to occur. Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986). But, similar to “fiduciary,” Section 32.45 does not define “agreement.” Thus, the Court of Criminal Appeals construes agreement according to its plain meaning. Bynum v. State, 711 S.W.2d 321, 323 (Tex. App.—Amarillo 1986), aff’d, 767 S.W.2d 769 (Tex. Crim. App. 1989). To prove up an agreement, the State must be able to demonstrate a harmonious understanding or an arrangement, between two or more parties, as to a course of action. Id. Additionally, there is nothing in Section 32.45 that requires the agreement to be in writing or proved directly. Id.

Possible Defenses?

An effective defense to a charge of misapplication of fiduciary property is mistake of fact—otherwise negating the culpability required for the commission of the offense. Section 32.45 is designed to punish intentional, knowing or reckless misapplication of property. Thus, if it can be proved that the improper use or application of the property was the result of mere negligence, by mistake of fact, the statute will not apply. Other defense vary depending on the facts of the case.

What are the Penalties?

Texas has broad laws governing the use of property by a fiduciary. The charges can range from a Class C misdemeanor to a first-degree felony, based on the amount or value of property that is “misapplied.”

According to the Texas value ladder, an offense under this section is a:

• Class C misdemeanor if the value of the property misapplied is less than $100;
• Class B misdemeanor if the value of the property misapplied is $100 or more but less than $750;
• Class A misdemeanor if the value of the property misapplied is $750 or more but less than $2,500;
• State Jail Felony if the value of the property misapplied is $2,500 or more but less than $30,000;
• Felony of the third degree if the value of the property misapplied is $30,000 or more but less than $150,000;
• Felony of the second degree if the value of the property misapplied is $150,000 or more but less than $300,000; or
• Felony of the first degree if the value of the property misapplied is $300,000 or more.

Id. at § 32.45(c).

Moreover, there is also an additional enhancement (to the next higher category) if it can be shown that the beneficiary was a person 65 years or older. § 32.45(d).

When Does Misapplication of Fiduciary Property Usually Occur?

This charge can arise in several different contexts. To name a few, misapplication of fiduciary property can occur:

• When trustees misapply trust property;
• When the holder of power of attorney makes a gift to herself;
• When a business partner improperly diverts funds for personal use; or,
• When an attorney misapplies a client’s funds.

These examples demonstrate that Section 32.45 covers many situations and may result in serious consequences. Thus, if you are under investigation or have been charged with the offense of misapplication of fiduciary property, it is necessary you seek help.

Misapplication of Fiduciary Property Defense Attorneys

Our criminal defense team handles Misapplication of Fiduciary Property cases in Tarrant County, Texas and surrounding areas. If you are under investigation for w financial crime or white collar offense, contact our firm today for a free case evaluation.

Texas is home to many animal owners. Whether residents own household pets, like cats and dogs, or livestock, most animal owners are responsible and ensure that their “fur babies” are provided with proper care. However, there are times when cases arise involving individuals who abuse or neglect their animal or someone else’s. If this occurs, there may be grounds for a police investigation and serious criminal charges. So, what conduct falls under animal cruelty laws in Texas and what are the potential criminal consequences?

What Constitutes Animal Cruelty?

Animal cruelty laws in Texas apply to domesticated animals, which are further divided into two categories:

• Livestock animals
• Non-livestock animals

Cruelty to non-livestock animals accounts for a majority of animal cruelty cases and, therefore, a proper understanding of Section 42.092 of the Texas Penal Code, governing animal cruelty to non-livestock animals, is essential.

Non-livestock animals are generally what most people would consider “household pets.” Section 42.092 defines a non-livestock animal as a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. This would include dogs, cats, rodents and reptiles. Generally speaking though, animal cruelty laws do not apply to wild animals that are not captured—such as deer, wild hogs, mountain lions, etc.

Section 42.092 encompasses an array of behavior that is considered animal cruelty to non-livestock animals. To be charged with animal cruelty under this section, a person must have performed these “cruel acts” intentionally, recklessly or knowingly. The types of cruel behavior the statute covers include:

• Torturing an animal (causing unjustifiable pain or suffering);
• Killing an animal in a way that is considered cruel or leads to serious bodily injury of the animal;
• Administering poison to an animal;
• Failing to provide a reasonable amount of food, water, care and shelter to an animal;
• Abandoning an animal;
• Transporting or confining an animal in an unreasonable or cruel way;
• Causing an animal to engage in a fight with another animal (if the animal is not a dog—dog fighting has its own Section in the penal code);
• Without the owner’s consent, causing bodily injury to an animal;
• Using a live animal as a lure in a dog race; or,
• Seriously overworking an animal.

Some of these definitions are broad and can potentially cover a wide range of abuse.

Potential Consequences

Misdemeanor Animal Abuse

A person who intentionally, knowingly or recklessly fails to provide a reasonable amount of food, water, care and shelter; abandons an animal; transports or confines an animal in a cruel manner; causes bodily injury to an animal; or seriously overworks an animal will be punished with a Class A misdemeanor.

An individual convicted of a Class A misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000. Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced to a state jail felony. (see below for definition)

Felony Animal Abuse

3rd Degree Felony: A person who intentionally, knowingly or recklessly tortures; kills; administers poison to or causes serious bodily injury of an animal may be guilty of a Third Degree Felony. An individual convicted of a Third Degree Felony may be sentenced from 2 years to 10 years in prison and a fine up to $10,000.

A person who intentionally, knowingly or recklessly causes one animal to fight with another; or, uses a live animal as a lure could be punished with a State Jail Felony. A State Jail Felony may be sentenced from 180 days and up to two years in a state jail facility and a fine up to $10,000.

Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced by one felony degree.

Defenses

Section 49.092 of the Texas Penal Code provides several defenses to prosecution of animal cruelty of non-livestock animals. For example, it is a defense if:

• The animal is killed in self-defense;
• The animal is killed or injured upon discovering the animal injuring or killing the person’s livestock or damaging the person’s crops;
• The conduct occurs for legal hunting or agriculture practices; or
• The conduct occurs for true scientific research.

While there are many potential defenses, a conviction for animal cruelty can be extremely serious and it may jeopardize a person’s future animal ownership rights. Thus, it is essential to seek help if you have or may be charged with animal cruelty.  Contact our team of criminal defense attorneys for a free consultation about your animal cruelty allegation.

You may hear on the news that a case is going to the Grand Jury and wonder, What exactly is a Grand Jury? Is a grand jury to same thing as a regular jury? Can does a grand jury have special powers that a regular jury doesn't have? Where does a grand jury fit into my case? This article seeks to answer those questions and clear up some of the myths about grand juries in Texas.

What is a Grand Jury?

A grand jury is group of 12 citizens that review felony criminal charges to determines whether probable cause exists for the case to continue forward. This is NOT the same type of jury that hears the case at trial.  The Grand Jury does not decide guilt or innocence, only probable cause. If the grand jurors determine that there is probable cause, then they vote to indict the case. An indictment is an essential part of every criminal case. If the grand jurors determine that there is not probable cause to believe an offense has been committed by the named defendant, then they vote to issue a no-bill. A no-bill typically means the case is dismissed and the District Attorney will not proceed with prosecution of the case.

How are the Grand Jurors Selected to Serve?

Prior to 2015, grand juries were chosen by "jury commissioner" appointed by district court judges. This process was known as the "pick-a-pal" system. The law changed in September 2015 and now grand jurors are selected in a random fashion, akin to the trial jury selection system. The jury pool is taken from registered voters in the county in which the court presides. Prospective jurors cannot have been convicted of any felony offense or a misdemeanor involving moral turpitude (like theft). They must also not have any criminal charges pending against them.

What is an Indictment?

An indictment is the formal accusation of a crime, issued by a grand jury. Prior to an indictment, the district attorney typically makes an allegation through a complaint. A complaint can become an indictment only after the grand jury votes to issue the indictment.  Only an indicted felony case can proceed to trial (where the real jurors decide whether a defendant is guilty or not guilty).

What is a No-Bill?

If a grand jury decides that a felony charge is not supported by probable cause, then it votes to return a no-bill on the case. This literally means that there was "no bill of indictment" issued. Sometimes, instead of a complete no-bill, a grand jury will indict a lesser-included charge, taking the felony to a misdemeanor.

The Mechanics of the Grand Jury Process in Texas

It is important to understand that the grand jury process is a secret proceeding. The defendant and his attorney do not have a right to be present in the hearing room or to present evidence unless the district attorney permits them to make a presentation. It is discretionary for the DA to allow either a paper submission or live testimony offered by the defense. During the grand jury hearing for a particular case an Assistant DA will explain the charge and the legal elements that the state is required to prove. The ADA will then run down the evidence from the police report and other video/audio recordings, giving the grand jurors a brief synopsis of the facts. The jurors can ask questions of the ADA and request further evidence if needed. In some cases, the ADA will call witnesses like police officers or victims to give testimony regarding the alleged offense. Most cases can be completed with the grand jury in a matter of hours, but the occasional complex case might take longer.

How is a Grand Jury Difference from a Regular Jury?

The grand jurors serve a term (approximately three months), usually coming to the courthouse a couple of day each week. A regular jury comes for jury service and will only hear one case. A grand jury only hears a brief version of the facts from the side of the state while the regular trial jury will hear the full version of the facts from both sides as well as cross-examination of the witnesses. Grand jurors can only vote to indict or no-bill. They cannot find a person guilty or not guilty - only a trial jury can do that. So, in a sense, the trial jury actually has the "grand" power.

Should the Defense Make a Grand Jury Presentation?

In our experience, it can be incredibly helpful to make a defense presentation to the grand jury. This can mean the difference between a felony indictment, a misdemeanor lesser charge, or a complete dismissal. Sometimes the best presentation is a written presentation and other times the defense would be better served to address the grand jurors in person. It really depends on the case and the overall strategy of the defense team. Grand jurors like to ask questions, so being there to answer them is usually a good thing (if you have good explanations).