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Murder under Section 19.02(b)(2) of the Texas Penal Code provides:

A person commits and offense if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

Because there is no clear mens rea (i.e. culpable state of mind, such as intentionally or knowingly) required under 19.02(b)(2), Texas courts have not allowed a lesser-included instruction on the offense of Manslaughter (which required a mens rea of recklessness).

Not any more.

In Cavazos v. State, the Texas Court of Criminal Appeals held that Manslaughter is an LIO of Murder under 19.02(b)(2).  While the CCA could not look to the specific elements of the offenses to come to a conclusion, it used a functional equivalence test, holding that the culpable mental state for Murder under 19.02(b)(2) is the intent to cause serious bodily injury, which can be substituted for recklessness under a Manslaughter theory.

Of course, Mr. Cavazos did not benefit from this holding, because the CCA also held that his particular case did not qualify for the LIO instruction.  So while new law emerges, his conviction stands.

You can't believe anything he says. He tries to sound intelligent and reliable, but falls far short. Did you think I was writing about a political candidate? Nope. A police officer.

The Second District Court of Appeals (Fort Worth) just released State v. Houghton, a Driving While Intoxicated (DWI) case that centered around the testimony of the arresting officer.  In this case, the defendant moved to suppress the DWI stop for lack of reasonable suspicion.  At the suppression hearing, the police officer testified that he couldn't remember why the car initially caught his attention. Perhaps it was for speeding, but he couldn't say for sure.  He further testified that the car was driving left of center in a lane, but that it never actually crossed over the line.

Granting the motion to suppress, the trial court commented that the officer lacked any credibility. Affirming the trial court's suppression ruling, the Court of Appeals, held:

To establish reasonable suspicion, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion.  Terry, 392 U.S. at 21-22, 88 S. Ct. 1868, 1880... Generally, law enforcement action can only be supported by facts the officer was "actually aware of at the time of that action." State v. Ruelas, 327 S.W.3d 321, 326-27 (Tex. App.―El Paso 2010, pet. ref'd). As stated by the court in Ruelas, "The preference for objective standards, however, does not apply to the facts on which officers act." Id. at 326 (holding officer lacked reasonable suspicion where it was not until suppression hearing when state was questioning motorist defendant that officer learned of facts suggesting he violated traffic code by making left turn into right-hand lane).

Here, because the officer failed to offer any justifiable reason for the traffic stop (a reason that was in his mind at the time of the stop, vice at the suppression hearing), the Court of Appeals affirmed the trial court's suppression of the traffic stop.  A police officer can't just follow the prosecutor's lead to justify the stop.  He has to be able to articulate what was going through his mind at the time of the stop.  If is doesn't amount to reasonable suspicion, the case needs to get kicked.

Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:

United States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)

A Border Patrol Agent conducted a traffic stop on appellant's van and eventually arrested him for harboring illegal aliens.  The court held the agent did not violate the Fourth Amendment's prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.

First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times.  Second, various characteristics of the van and its passengers added to the agent's suspicions.  The van was a fifteen-passenger model of the kind often used in transporting illegal aliens.  There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company.  The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company.  Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit.  Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens.  The agent's 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.

United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012 

Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer's patrol cars too closely.  One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it.  After the dog alerted to the presence of drugs, the officers searched appellant's car and found cocaine and two loaded firearms.

The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant's rate of speed was credible.  The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer's patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers' probable cause to stop appellant for speeding.

The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation.  First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers.  Second, during the stop, he kept his foot on the car's brake pedal instead of shifting the transmission into park.  Third, he could not provide details as to his destination or the family member he was going to visit.  Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract.  All of these circumstances supported the officers' decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant's car.

"I want a hamburger...no, a cheeseburger."

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant's best interest to plead guilty to receive a lesser sentence or probation.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.

However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant's choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant's choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State's consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they'll have to see what a jury thinks of the case.

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson v. State.  The Attack By Dog statute provides, in relevant part:

(a) A person commits an offense if the person is the owner of a dog and the person: (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner's real property or in or on the owner's motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;

After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms "unprovoked" and "attack" are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms "unprovoked" and "attack" are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:

Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.

The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners' failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will be charged with a crime.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.