CCA

As Fort Worth criminal defense attorneys, we often encounter confrontation issues during trial. The Confrontation Clause of the Sixth Amendment gives a defendant the right to confront witnesses against him. This provision prevents admission of a "testimonial" statement--a formal statement similar to trial testimony--unless the person who made the statement can be cross-examined or is unavailable but was previously cross-examined (in a deposition, for example). In the absence of cross-examination, a criminal defense attorney in Fort Worth would object to admission of the statement as evidence.

In Paredes v. State, the Court of Criminal Appeals considered how the Confrontation Clause applies to DNA testimony based on computer-generated data obtained through batch DNA testing. During a robbery, two victims were shot and killed. Jovany Paredes asked Jessica Perez to wash the shirt he was wearing during the robbery. Instead, Perez gave the shirt to police, who sent it to a lab for DNA testing. DNA from blood on Paredes's shirt matched one of the victims.

At trial, Robin Freeman, the lab director, explained that DNA testing involves four analysts. The fourth analyst interprets raw data from a computer to determine whether there is a DNA match. In Paredes's case, Freeman herself compared the DNA profile from the blood stain to Paredes's DNA profile. Freeman testified that she did not personally observe each of the analysts performing the first three steps but that any problem in the analysis would have been obvious. Freeman testified that the ultimate opinion was hers and that she was testifying regarding her opinion.

Paredes's defense attorney objected, arguing that he was entitled to cross-examine the other analysts. The State said those analysts just took "physical stuff," placed it into instruments and applied chemicals. Freeman, the State said, was the one who did the interpretation that was presented to the jury. The judge agreed with the State, and Paredes was convicted of capital murder.

The Court of Appeals affirmed, holding that Freeman's testimony did not violate the Confrontation Clause. After the Court of Appeals decision, the CCA decided in Burch v. State that admission of a drug test lab report did violate the Confrontation Clause because the testifying witness stated that the report was a "surrogate" for the technician who performed the test. Paredes appealed based on Burch. The CCA vacated the Court of Appeals decision and remanded the case to consider whether Burch affected the decision in Paredes.

The Court of Appeals made the same decision the second time, distinguishing Paredes, where the lab director had knowledge of the tests used and conducted the crucial analysis, from Burch, where the testifying lab supervisor had not observed or performed any part of the drug test or its analysis. Because Paredes' attorney had the opportunity to cross-examine the person who conducted the actual analysis that linked him to the crime, Paredes' Confrontation Clause rights had not been violated.

Paredes appealed to the CCA again. The Court reviewed three U.S. Supreme Court cases involving forensic reports. In the first two cases, the Supreme Court had found the forensic reports inadmissible because only a "certificate of analysis" was presented as evidence and a testifying witness had not actually performed the test.

In the third case, a DNA case, an outside forensics specialist testified that the lab-created DNA profile matched the defendant's DNA profile. The Supreme Court held that this evidence did not violate the Confrontation Clause.

Based on the Supreme Court cases (Melendez-Diaz and Bullcoming) and the decision in Burch, the CCA ruled against Paredes. The CCA relied on the fact that Freeman, the testifying witness, had actually performed the crucial analysis and had testified to her own conclusions. Further, the lab director had testified regarding the quality assurance system at the lab that would alert the director if the test were done improperly. The CCA also distinguished this case because Freeman had relied on raw, computer-generated data in reaching her conclusions, rather than relying on another analyst's report. Because Paredes was given the opportunity to question Freeman regarding her opinion, the CCA held that his Confrontation Clause rights were not violated.

A Fort Worth criminal defense attorney whose client is facing forensic expert testimony will carefully consider Paredes. Challenges to DNA evidence may be more difficult, particularly if the testifying witness is the individual who actually translated the raw data into a conclusion regarding a DNA match. A criminal defense attorney in Fort Worth will carefully monitor the application of Paredes to cases with similar, yet different, facts.

Can I be Arrested for DWI for Sleeping in My Car?

One of the requirements for a DWI in Fort Worth is straightforward--the intoxicated individual must be "operating" a vehicle while intoxicated. Any DWI attorney in Fort Worth would tell you that basic requirement. The Texas Court of Criminal Appeals recently considered the question of whether an individual who is passed out in a running, yet stationary, vehicle is "operating" the vehicle for DWI purposes. In Murray v. State, the court answered in the affirmative.

Chad Murray was passed out in his running truck in the early hours of the morning. Deputy James McClanahan observed Murray's truck with its lights on, parked partially on the shoulder of Highway 22 and partially in a driveway near a fireworks stand. Deputy McClanahan observed exhaust coming from the truck but could not see anyone inside. The Deputy approached the truck and saw Murray asleep in the driver's seat. The truck was indeed running. The transmission was in "park," and the radio was on high volume. Deputy McClanahan finally succeeded in waking Murray up and, after Murray's bungled attempts failed, in obtaining Murray's ID. The deputy reported that he immediately smelled alcohol in the truck when Murray opened the window and that Murray appeared very intoxicated. Murray failed a field sobriety test and was charged with DWI.

At trial, Murray was found guilty and sentenced to one year in jail and a $1,000 fine. The jail sentence was suspended, and Murray was placed on two years of community supervision. Murray appealed his conviction to the Seventh Court of Appeals, arguing that there was insufficient evidence at trial to prove that he was actually operating his truck and that he was, therefore, not guilty of DWI. The court of appeals agreed and reversed Murray's conviction, holding that, although it was possible to infer from the circumstances that someone drove Murray's truck to the location where it was found, there was no evidence as to when that occurred or whether the driver was intoxicated at the time. The Prosecuting Attorney appealed to the Court of Criminal Appeals based on the question of whether Murray could have been found guilty of DWI without direct evidence that he was operating a vehicle while intoxicated.

The CCA took exception to the lower court's conclusion, pointing to evidence that the vehicle was running, that Murray was in the driver's seat, that Murray was the only one in the vehicle and that he was the only person in the vicinity. The court also pointed to the fact that there were no alcoholic beverages or containers in the vicinity and that the Deputy's conclusion that Murray was very intoxicated was reasonable; Murray even admitted to the Deputy that he had been drinking. Because Murray was intoxicated, no one else was around, and there was no alcohol in the area, the court found it reasonable for the jury to infer that Murray had driven his truck to the location on Highway 22 and had done so while intoxicated.

Justice Meyers disagreed and in a dissenting opinion argued that allowing Murray's DWI conviction to stand was comparable to convicting someone for possession of marijuana based solely on the individual being high and smelling of marijuana. Justice Meyers believed that being passed out behind the wheel of a running vehicle is not enough to be considered "operating" the vehicle; operation of a vehicle requires some action to enable the use of the vehicle, even something as simple as turning the key in the ignition. For DWI purposes, there must be evidence that the action was taken while the individual was intoxicated. For Justice Meyers, inferring these facts from the evidence presented was a leap too big for a jury to make.

The case is instructive for anyone charged with DWI in Fort Worth. A trial jury will have wide latitude in drawing conclusions regarding whether you were operating the vehicle while intoxicated, even if an officer does not directly observe you doing so. If you find yourself in this predicament, you should consult a DWI attorney in Fort Worth. Do not assume that you will get off on a technicality. Chad Murray didn't.

Under Texas Penal Code § 20.04(d), a kidnapper who voluntarily frees his victim in a safe place reduces his or her punishment level for aggravated kidnapping from a first-degree to a second-degree felony. In construing a "safe place," Texas courts consider seven factors:

1. the remoteness of the location,
2. the proximity of help,
3. the time of day,
4. the climate,
5. the condition of the victim,
6. the character of the location and surrounding neighborhood, and
7. the victim's familiarity with the location or neighborhood.

However, these factors are merely aids in defining what constitutes a "safe place," which is made on a case-by-case basis, bearing in mind the totality of the circumstances.

In Butcher v. State, the appellant kidnapped the nine year-old complainant at knife point while the complainant was walking to school. After putting the complainant in his car, the appellant drove her to his apartment, bound her hands, and put her in his closet. After eight hours, the appellant decided to release the complainant and dropped her back off at the site of the kidnapping.

The appellant argued that because he returned the complainant back to the site of abduction during day-time, he released her in a safe place since the complainant's mother allowed her "to walk to and from the school bus stop by herself before this incident, [the complainant] did not ask a passing mailman for help after she was released, and that [the complainant's] mother described [the complainant] as independent."

Applying the factors to Butcher, the Texas Criminal Court of Appeals held, nonetheless, that because the site of the kidnapping was "desolate," the complainant was released in the middle of the road, the appellant kept the complainant's cell phone, and the complainant's family did not have a home phone, the site of the kidnapping was not a safe place.

Moreover, the Texas Court of Criminal appeals distinguished Butcher with Storr v. State. In Storr, the appellant had kidnapped the complainant, but, similarly, released him back at the site of the abduction. The Court held that the area was a safe place because the complainant was college-aged, released at a post office during business hours near his university, and he had available transportation. However, the complainant in Butcher was nine years old, released in the middle of a desolate road, did not have available transportation or a phone, and returned home with nobody there, thus rendering the site of the kidnapping unsafe.

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.

DWI Conviction Overturned | Passing on the Shoulder Permitted in Certain Circumstances

In many ways, Texas Court of Criminal Appeals also acts the State's highest traffic court. What follows is a synopsis of Lothrop v. State, wherein the CCA opines on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop, the police stopped Appellant after observing him use the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated (DWI). At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop. Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI. The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that "driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial."

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely. Merely driving on an improved shoulder is not prima facie evidence of an offense. Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred.

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.   So there you have it - your traffic lesson for today from the CCA. You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.