News and Insights

I know this post has nothing to do with Fort Worth Criminal Defense or Texas Criminal Law, but as a Marine officer and Reserve Military Judge, I am often asked about the threats facing our Marines and our nation.  As I was watching President Obama tonight talk about the terrorist attack in San Bernardino and the terror group ISIL, a friend of mine asked, "Why is he saying ISIL? Doesn't he mean ISIS?"

Is there a difference between ISIS and ISIL?

The answer is yes (kind of).  The President knew exactly what he was saying.  ISIL stands for the "Islamic State of Iraq and the Levant."  ISIS stands for the "Islamic State of Iraq and Syria."  ISIL is really the next (and bigger) iteration of ISIS.  The Levant is a large area in the middle east that is being held by ISIL.  However, since ISIS has become a household name, most news agencies continue to say ISIS, when ISIL is the correct name.

Want to Learn More About ISIL's Ideology and How ISIL Grew to Power?

Check out the video below of a Marine Corps briefing by Dr. Sebastion Gorka, one of the nation's leading experts on Islamic terrorism. This is an actual brief that was provided to high ranking Marine officers. I will warn you, this video is long. One hour long, to be exact. But as Dr. Gorka points out at the beginning of the video, he teaches a 16-week course on this topic, so one hour is really only the wavetops.  If you are the type who likes to post your opinions about this topic on social media, you should really take the time to watch this video.  Enjoy.

"Run, Baby, Run!" Girlfriend’s Warnings, Personal Tattoos, and Attempts to Flee From US Marshals, Do Not Rise to the Level of “Felony Hindering Apprehension” Says the CCA

Keiona Nowlin and her boyfriend, Demarcus Degrate, were riding in a car when a United States Marshal, executing a sealed, federal warrant on the boyfriend, pulled up behind them. After the Marshal activated the siren and lights, the couple pulled over and Degrate fled on foot. The Marshal chased Degrate. Moments later, as two Marshals arrived at the scene, they observed Nowlin screaming, “Run baby run…get away” while she also fled on foot. The Marshals detained Nowlin “to find out why she was running.” At that point, Nowlin fled the Marshals’ car. Nowlin was placed under arrest for escape.

See the CCA Opinion in Nowlin v. State.

After the arrest, Nowlin said she “knew the cars the Marshals drove…and…did not want Degrate to be arrested…[because] he was out on bond for state charges.” The Marshal noted that Nowlin had Degrate’s name tattooed near her collarbone; the trial court inferred the tattoo as indicative of an intimate relationship. The trial court found Nowlin guilty of third-degree felony hindering apprehension, sentencing her to four years imprisonment.

Nowlin appealed to the court of appeals, arguing that she was not warning Degrate of impending apprehension because “he was already aware of the [Marshal’s] presence.” Nowlin contended that because she did not know the contents of the sealed federal warrant, she could not have known Degrate was charged with a felony. The court of appeals disagreed, holding that her statement at the scene, “run baby run…get away,” provided sufficient evidence of providing a warning to Degrate. The court of appeals pointed to statements made at the scene that she knew “he was out on bond for state charges…and…she did not want her man to get arrested.” The court of appeals added that her tattoo was proof of her close relationship with Degrate, and that she likely knew of the felony-level charges he was facing.

Nowlin appealed to the Court of Criminal Appeals, arguing that because the federal indictment was sealed and secret, she could not have known about the indictment itself; that no evidence exists that she knew of the felony-level charges Degrate faced; and, that her tattoo was not proof of a close relationship where she would have had knowledge of the charges. The State argues that the evidence was sufficient: that the tattoo is evidence of a close relationship that implies she knew intimate details of Degrate’s life; that she knew Degrate faced serious state-level charges, and that her attempt to flee from the US Marshal is evidence of her knowledge of the “serious nature of Degrate’s crimes.” In an interesting turn of events, the State offered an alternative to acquittal--that an alternative charge could be misdemeanor-level hindering apprehension, and the sentence could be amended to reflect a lesser charge.

“In order to show that the evidence presented was legally sufficient to support a conviction of felony hindering apprehension, the State must prove:

1. the defendant warned another person of impending discovery or apprehension;
2. the defendant had the intent to hinder that individual’s arrest; and,
3. the defendant had knowledge that the individual was under arrest for, charged with, or convicted of a felony.

Tex.Penal Code § 38.05(a), (d).

An individual acts with knowledge when he is aware that the circumstances exist. Tex. Penal Code § 6.03(b). In a nutshell, the State must show Nowlin was aware that her boyfriend was under arrest for, charged with, or convicted of a felony. The Court of Criminal Appeals (“CCA”) now decides whether the evidence is sufficient to show that Nowlin knew Degrate was charged with a felony offense.

Here, the CCA does not agree with the trial court and court of appeals. “The state offense that Degrate was on bond for cannot serve as the basis for [Nowlin’s] conviction.” The CCA notes that there was no evidence at trial that named the type and level of the state offense, therefore, the trial court had no way of knowing if the offense was a felony or not. Also, there was no mention of whether Nowlin knew what type of charge her boyfriend was facing. Therefore, because there was insufficient evidence regarding the state offense, the state offense cannot serve as the basis for Nowlin’s conviction.

Further, Degrate’s federal indictment was sealed. There was no way for Nowlin and Degrate to know about the charges before their arrests. “With this mandated secrecy and the lack of evidence that he was told about the indictment during the attempt to arrest him, Degrate could not have known that he was under indictment for felon in possession of a firearm.” It would have been impossible for Degrate to have told Nowlin about the felony charge because he would not have known about it.

Lastly, the inferences made about Nowlin’s close relationship with Degrate—including the tattoo on her collarbone and her attempt to escape the Marshall—do not apply here. “While the inferences that the court of appeals makes would likely be reasonable ones had there been any evidence of Degrate himself having knowledge of the indictment, no such evidence was ever presented.”

The CCA found that the evidence was insufficient to support a felony-level hindering apprehension charge. The CCA reforms Nowlin’s convictions to a misdemeanor hindering apprehension charge, instructing the trial court to conduct a new punishment hearing to reflect the lesser charge.

Criminal law disfavors the testimony of an accomplice, for good reason.  The policy behind this is clear - factfinders should be leary of trusting those who have a substantial stake in the litigation, especially those with a direct liberty interest.  A few years back, the 2nd District Court of Appeals (Fort Worth) provided a good synopsis of the Accomplice Witness Rule, which I felt was worth sharing.  The following excerpt is taken from Clark v. State (June 17, 2010).

What is the Accomplice Witness Rule in Texas criminal law?

The accomplice-witness rule is a statutorily imposed sufficiency review andis not derived from federal or state constitutional principles that define the legal andfactual sufficiency standards.  An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense.  Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of anaccomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidencethat tends to connect the accused with the commission of the crime.”  The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself.  Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Rather, the evidence must simply link the accused insome way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to theoffense.”  Additionally, “[p]roof that the accused was at or near the scene of the crime at orabout the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”

I omitted the citations, so you should click on the link above and go to page 15 of the opinion if you wants the various cites for the law above.

Appellate Court Raises a Constitutional Eyebrow at Texas' Sex Trafficking Statute

Robert Francis Ritz met a young girl on an online dating website. She was fourteen years old at the time while Ritz was Forty-four. The two began to meet up in person and began to have a sexual relationship. Ritz would pick the girl up from her parents’ house, drive her back to his house, have sex, and then drop her back off at her house. For this conduct, a jury found appellant Ritz guilty of continuous sex trafficking and assessed punishment at life in prison. Ritz appealed to the 3rd District Court of Appeals in Austin.

See the court's opinion in Ritz v. State

How Does the Texas Penal Code Define Sex Trafficking?

The Texas Penal Code provides that a person commits continuous trafficking of persons “if, during a period that is 30 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Section 20A.02 [trafficking of persons] against one or more victims.” Tex. Penal Code § 20A.03(a). A person commits trafficking of persons “if the person knowingly . . . traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by” an enumerated section of the Penal Code. Id. § 20A.02(a)(7). The Penal Code also provides that “‘[t]raffic’ means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.” Id. § 20A.01(4).

Under this broad language, Ritz falls into this category. Ritz argues, however, that he did not traffic this girl and should not be found guilty of human sex trafficking. He argues that the legislature surely did not intend this anti-human-trafficking statute to apply to cases like this where there is no “illegal trade of human beings for profit or for sex trafficking.” Further, he argues that this outcome would lead to “absurd consequences” and increase the punishment range for all sexual offenses involving a minor.

Essentially, Ritz is argued on appeal that this statute was intended for people trading other humans, not for a person driving a girl around so they can have sex together. The Court of Appeals concedes that although this act is “reprehensible,” it is not what is normally thought of as human trafficking because there was no organized crime, prostitution, or forced labor. The court also concedes that the language in the statute may be so broad that nearly every adult who has sex with a minor will be considered a human trafficker.

Nonetheless, the court concludes that as long as this statute is constitutional, then they must enforce it as it was written and not how it should have been written. The court also offers that it could have been possible that the legislature did want to increase the penalties for persons who commit sexual crimes with minors under the “trafficking” umbrella.

Effectively after this case, most every person who has committed a sexual crime with a minor will be eligible to be punished under the trafficking umbrella which faces harsh penalties as seen here. The court noted that Ritz did not challenge the constitutionality of the statute so the court did not look into it. Attorneys facing this same dilemma might raise this constitutional argument to have a better chance on appeal.

CCA Says “No Relief” for Defendant Who Accepted Plea Deal, even though the Court Infers Defendant’s Lab Reports Were Falsified

Setting the Stage: The Houston Crime Lab Scandal

In January of 2012, the Texas Rangers investigated a Department of Public Safety (“DPS”) Crime Laboratory technician, Jonathan Salvador, for allegedly tampering with crime lab evidence. The Rangers questioned DPS technicians and reviewed evidence records, bringing information that pointed to Salvador’s mishandling of lab results to Harris County’s District Attorney’s office. However, after an extensive investigation, the grand jury did not indict the technician. Subsequently, the DPS Office of Inspector General issued a report, stating that Salvador “failed to properly follow laboratory protocols…misidentified substances, and dry-labbed [falsified] samples.” Following the report, Salvador was terminated from his position at the Houston Crime Lab.

The fallout from Salvador’s actions, “call…into question the veracity and reliability of many cases handled by Salvador…[and as a result courts have] granted relief on several writs of habeas corpus, finding that each case involved a presumptive violation of due process.” Ex Parte Turner, 394 S.W.3d 513 (Tex. Crim. App. 2013) (per curiam); Ex Parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013) (per curiam). The Texas Court of Criminal Appeals (“CCA”) has since “retreated from a presumption that due process was violated in every Salvador case, [instead] requir[ing] a showing of falsity and materiality.” Ex Parte Coty, 418 S.W.3d 597, 605.

How to Demonstrate a Due Process Violation from the Houston Crime Lab Scandal

In order for a defendant to prove that due process has been violated, the defendant must show (1) falsity—that his evidence from the lab or lab report was falsified; and, (2) materiality—that such falsifications/false reports were material to the outcome of the guilty verdict. Ex Parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014).

Falsity

The defendant bears the initial burden of showing falsity; the CCA “has implemented a five-part protocol to be used when a [defendant] raises an inference of falsity.” Coty, 418 S.W.3d at 605.
A defendant shows falsity when:

1. The technician in question is a state actor
2. The technician has committed multiple instances of intentional misconduct in another case or cases;
3. The technician is the same technician that worked on the [defendant’s] case;
4. The misconduct is the type of misconduct that would have affected the evidence in the [defendant’s case]; and,
5. The technician handled and processed the evidence in the [defendant’s] case within roughly the same period of time as the other misconduct.

Materiality

A defendant bears the burden of persuasion with regard to materiality. Id. at 606. Materiality of false evidence is measured by the impact it had on the defendant’s decision to plead guilty. Id. In cases involving plea agreements, the court examines the voluntariness of the plea—whether there is a reasonable likelihood that [the plea] affected the defendant’s decision to plead guilty, [but] not whether it affected the conviction or sentence. Id. The Court ponders questions like, “if the defendant had known that the lab reports were falsified, would he have plead guilty, or would he have gone to trial?” A plea, however, is not involuntary simply because a defendant does not correctly assess every relevant factor entering into his decision [to take the plea]. Ex Parte Evans, 690 S.W.2d 274, 277 (Tex. Crim. App. 1985); Brady v United States, 397 U.S. 742, 757 (1970). The CCA implies that the decision to “go to trial” is an indicator that the false evidence is indeed material; the decision to “take a plea deal” is a soft indicator that the false evidence is not material.

Applying this to Ex Parte Barnaby

On March 13, 2009, Kemos Marque Barnaby was stopped for a traffic offense. During the traffic stop, police smelled an odor of marijuana coming from inside the car. Barnaby was asked to exit the vehicle, and he consented to a pat-down search. With dashboard cameras rolling, a small plastic bag with white rocks, which tested positive for cocaine during a rapid field test, was found in Barnaby’s pants. The bag was delivered to the Houston Crime Lab, where Jonathan Salvador issued a drug analysis report, identifying the white rocks as cocaine. Instead of going to trial, Barnaby plead guilty to four separate offenses of possession of a controlled substance with intent to deliver in exchange for four concurrent fifty-year sentences. Barnaby appeals to the Court of Criminal Appeals, arguing that because of Salvador’s false report, his guilty plea was involuntary, and had an impact on his decision to take the plea deal.

Here, the Court examines falsity to determine whether due process was violated. Using the five-part falsity protocol, the Court says, (1) Salvador was a state actor; (2) Salvador had multiple instances of misconduct; (3) Salvador worked on Barnaby’s case; (4) Salvador’s misconduct is the type of misconduct that would have affected the evidence in Barnaby’s case; and, (5) Salvador handled Barnaby’s evidence in the same time period as the other misconduct at the Houston Crime Lab. The State conceded that Barnaby was able to raise the inference of falsity, and accordingly the Court infers that Salavador’s report in this case is false, carefully noting that an ‘inference of falsity’ is not an affirmative finding of a negative cocaine test result.

Next, the Court examines materiality to determine whether the false lab report was material to the decision to take a plea bargain and whether the value of the undisclosed information was outweighed by the benefit of accepting the plea offer. Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006). Here, the Court says that Barnaby, a habitual offender, was faced with four drug charges, on top of having two prior felony convictions, thus, enhancing sentencing guidelines ranging from 25 to 99 years imprisonment for each charge. On top of that, Barnaby was also charged with three additional charges of possession with intent to deliver in a drug-free zone, all of which were also enhanced to the habitual-offender statute. The plea resolved all four of those charges in exchange for four concurrent fifty-year sentences; “even if the falsity of the laboratory report had come to light…the State could have still prosecuted [Barnaby] for the three other [drug-free zone] cases. “[Barnaby’s] assertion that he would not have plead guilty had he known of the falsity of the laboratory report is unpersuasive in light of the benefit he received from the plea bargain.”

Even though the Court infers “that the laboratory report in [Barnaby’s] case was falsified, [the Court] finds that [such] falsity was not material to [Barnaby’s] decision to plead guilty,” adding that he received a benefit of a lighter prison sentence by choosing to take the plea deal. Accordingly, the Court of Criminal Appeals denies relief to Barnaby.

We've recently seen experienced drug lab problems in Fort Worth as well.  The problems have impacted countless drug and DWI cases in Tarrant County.  Any case that involves an outside crime lab must be scrutinized carefully by the criminal defense attorney.  While bad lab techniques (or technicians) might not mean an acquittal, but it could mean considerable relief for the defendant.