CCA

"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.

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

See the CCA opinion in Ex Parte Barnaby 

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.

When I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does "Impersonating a Public Servant" mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent...[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what "Impersonating" means (and doesn't mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

1. that the impersonation happened and
2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Jaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Contrary to television portrayals, most criminal cases never reach trial. While it is difficult to put a number of it, I would say that 90 to 95% of criminal cases are resolved by dismissal or plea bargain. Our Fort Worth criminal defense attorneys put the interests of the client first and will always pursue a dismissal and sometimes attempt to reach a favorable plea deal with the prosecutor as an alternative to the uncertainty of trial.  But in some occasions, a trial is the only way to go. What follows is a recent case opinion from the Texas Court of Criminal Appeals regarding a plea bargain situation gone wrong.

Rodriguez v. State (Texas Court of Criminal Appeals 2015)

On advice from counsel, Israel Rodriguez rejected a ten-year sentence plea bargain. Rodriguez was convicted and received eight life sentences.

Rodriguez filed for a new trial based on ineffective assistance of counsel; he believed his attorney's advice regarding the plea offer was wrong. Rodriguez asked that the State be required to re-offer the ten-year deal.

The judge granted a new trial and ordered the State to re-offer the deal. The judge proceeded to reject the deal.

After denying the ten-year deal, the judge informed Rodriguez he could withdraw his guilty plea and go to trial or accept a 25-year sentence. Rodriguez rejected the 25-year sentence and filed a recusal motion, arguing that the judge had demonstrated prejudice. The judge recused, and a new judge was assigned.

Rodriguez filed a motion to require the State to re-offer the ten-year deal. The new judge said the original judge's recusal had "wiped the slate clean," including the ten-year plea offer, but he would accept a new agreement if one were presented. The state offered a plea deal of 25 years, which Rodriguez accepted. The judge accepted the plea agreement and executed the judgments of conviction.

Rodriguez argued on appeal that he was entitled to the original ten-year offer and the court was required to accept it. The court of appeals considered three factors: (1) whether Rodriguez would have accepted the original offer; (2) whether the State would have been likely to withdraw the offer; and (3) whether the judge would have likely accepted the agreement.

The court of appeals concluded Rodriguez had suffered inadequate representation. The court's solution was for the State to re-offer the ten-year deal and have a judge who had not recused herself accept or reject the deal. The court did not agree that the judge was required to accept the ten-year deal. The case was remanded for the State to re-offer the deal.

The State filed for review of the court of appeals' decision, alleging four errors:

(1) The voluntarily recusal should not have been considered.

(2) Nothing in the record supported the possibility of the original judge accepting the ten-year deal.

(3) The second judge should not have been required to order the State to re-offer the ten-year deal.

(4) The judgment of conviction should not have been reversed.

The CCA considered the same three factors considered by the court of appeals. Although Rodriguez's convictions were vacated, he was still entitled to a determination of whether he had received effective counsel. The CCA agreed with the court of appeals that Rodriguez had been harmed by following his attorney's advice in rejecting the offer. No evidence suggested Rodriguez would have rejected the deal. The State was not likely to withdraw the offer because the passage of time had made the victims' testimony at trial unreliable.

The CCA said the only question was whether the first judge would have likely accepted the ten-year deal. No intervening circumstances would have given the judge a basis to reject the deal. However, Rodriguez did have an extensive criminal history, and the police reports for his charges were particularly damning. But nothing in the record indicated the judge would have rejected the ten-year deal if it had been presented to her prior to the trial. The CCA thus rejected the State's second allegation of error.

The State agreed the first judge would have likely accepted the ten-year deal prior to trial, but it argued the voluntary recusal was irrelevant. No evidence indicated any prejudice against Rodriguez. Requiring the State to re-offer the ten-year deal and then rejecting it were proper rulings and did not require recusal. On the State's first allegation, the CCA said, the court of appeals had erred.

The CCA sided with the State on its third allegation, finding Rodriguez had received exactly what he requested--a new trial with a clean slate and a decision on a plea agreement by a judge. The second judge was not obligated to give Rodriguez what the first judge had already given—consideration of the ten-year deal. Therefore, there was no requirement that the State re-offer the ten-year deal. The CCA did not consider the fourth allegation because its decisions on the first three allegations made the fourth issue moot. The CCA reinstated the 25-year sentence offered by the State, agreed to by Rodriguez, and accepted by the second judge.

An individual facing criminal charges will be advised by his Fort Worth criminal defense attorney regarding whether to accept the deal. Although the decision is ultimately up to the defendant, bad advice that ultimately leads to a worse outcome than the deal offered may present an opportunity for a new trial based on ineffective assistance of counsel.

What does it mean to cause someone to fraudulently execute a document?

Roger and Aaron Liverman filed separate mechanic's lien affidavits with the Denton County clerk, claiming that they had worked on Katheryn Payne's home and had not been paid. The county clerk filed and recorded the liens, which is the customary practice. The mechanic's liens were determined to be fraudulent, and the Livermans were charged with securing the execution of documents by deception. The Livermans were convicted and placed on community supervision.

On appeal, the court of appeals reversed the Livermans' convictions. The State appealed to the Court of Criminal Appeals. Because the case turned on an interpretation of statutory language, the CCA reviewed the case de novo; in other words, rather than reviewing the reasonableness of the lower court's decision, the CCA made its own independent decision based on the facts and the statute.

Opinion: Liverman v. State, Texas Court of Criminal Appeals 2015

The language of the statute under which the Livermans were convicted states that a person commits a crime if, "with intent to defraud or harm any person, he, by deception causes another to sign or execute any document affecting property or service . . . ." The case before the CCA boiled down to three questions: (1) What does the term "execute" mean in the statute? If nothing was executed, there was no offense. (2) Did the Livermans' action of filing the fraudulent liens meet the definition of execution? (3) Who actually executes a mechanic's lien when it is filed? The offense involves deceptively causing "another" to sign or execute a document. If the clerk's actions constituted execution, the Livermans might be guilty. If the Livermans executed the affidavits themselves by filing them, then they could not be convicted under the statute.

Arguments against Fraudulent Execution of a Document

The State and the Livermans put forward a number of arguments for their respective positions. The arguments involved comparing the "sign and execute" language of the statute with a related provision that uses the phrase "file and record;" consideration of the legislative intent and history when the statute was enacted; and which action actually perfected the liens. After reviewing the arguments and performing its own analysis, the CCA concluded:

(1) The term "execute" means more than just to sign a document and involves the broader act of bringing a document to its final, legally enforceable form.

(2) When the Livermans filed the affidavits with the clerk, the affidavits accomplished their role in perfecting the mechanic's lien. Therefore, the act of filing the affidavits was equivalent to execution.

(3) Because Texas law requires the person claiming a mechanic's lien to "file" the affidavit, then the Livermans did execute the affidavits by filing them. However, the CCA considered whether the clerk's actions might also constitute execution. Although the county clerk is required by law to record or index a filed affidavit, the clerk's failure to do so does not invalidate the lien. If the clerk's action of recording or indexing can be omitted and the affidavit still be valid, then the clerk's actions clearly did not "execute" the affidavits.

But, asked the Court, did the clerk "execute" the affidavits by accepting them when the Livermans filed them? The CCA answered in the negative. The statutory requirement to file the affidavit "with the county clerk" means that the clerk is simply the recipient of the filing and plays no role in its execution.

Because no action of the clerk executed the affidavits, the CCA held, the Livermans did not cause "another" to "execute" the documents as required for the offense of which they were convicted. The CCA agreed with the court of appeals, with the result of setting aside the Livermans' conviction.

Many people will recall President Bill Clinton's grand jury testimony in the Monica Lewinsky case. When asked why he wasn't lying when the told his aides that there was nothing going on between him and Miss Lewinsky, the President said "[i]t depends on what the meaning of the word 'is' is."

While many will find the President's response amusing, a Criminal Defense Attorney in Fort Worth may see an opportunity. Although not nearly so salacious as the Monica Lewinsky affair, the Livermans' case truly turned on what the meaning of the word "execute" is.

A Criminal Defense Attorney in Fort Worth will understand and appreciate the nuances of the statutory language and may succeed in acquittal by arguing that the law does (or does not) say what it seems to say.

Drug Crimes Can Come With Added Costs | Fort Worth Drug Crimes Defense Attorneys

Robert Ehrke was convicted of a drug crimes case - possession of between one and four grams of methamphetamine in a drug-free zone - and sentenced to seventy-five years in prison. The weight (1.6 grams) and composition of the substance were determined by a Department of Public Safety chemist.

In a pre-trial motion, Ehrke requested the trial court to provide for independent testing of the substance. Ehrke's attorney argued that, because 1.6 grams was so close to the 0.99 gram for a lighter sentence, independent testing was justified.

The trial court agreed it was required to allow Ehrke's counsel to inspect and examine the substance. However, because Ehrke did not demonstrate the need for the test or any reason why a second test would have different results, the judge denied the motion for independent testing. Ehrke's counsel's offer to secure payment for the testing did not change the judge's decision.

The Court of Appeals agreed with the trial court. The court based its decision on Ehrke's failure to show a particular need for independent testing or how an independent chemist would arrive at a different result.

On appeal to the Court of Criminal Appeals, the CCA identified two issues: (1) whether Ehrke had a right to inspection of the substance by an independent expert and (2) whether the state was required to pay for such an inspection.

The Court noted the Code of Criminal Procedure provided for a defendant to inspect evidence material to the state's case, but only if the defendant showed good cause for a request to inspect evidence. However, courts had found inspection mandatory if the evidence is material to the defendant's case.

The CCA said that in a controlled substance case, if the defendant asks to inspect the substance, the court must allow inspection because the substance will necessarily be material to the defense--no showing of good cause is required.

The CCA addressed the question of what an "inspection" entails. Obviously, simply looking at the substance, which is apparently all the trial court offered Ehrke's counsel, would not determine either its substance or its weight. The Court stated that in a controlled substance case, the right to pay for an independent chemist to analyze the substance is absolute.

On the second issue, the CCA acknowledged an indigent defendant's right to a court-appointed (read "court-paid") expert but said the defendant has the burden to provide specific justification for appointment of the expert. In Ehrke's case, the CCA said, no specific justification had been provided. Even though Ehrke's counsel explained the rationale for his request, he did not provide any evidence to question the original analysis by the DPS chemist, did not explain how independent testing was required for his defense and did not provide information regarding the complexity of the testing. According to the CCA, an absolute right to state-funded independent testing would be too great a financial burden to the County; therefore, appointment of an expert is required only if there is some preliminary evidence of a significant issue of fact to justify the appointment.

The Court remanded the case to the trial court for proceedings on the first issue.

The bifurcated decision in this case is perplexing. The Court said chemical analysis of an alleged controlled substance will always be material to a defendant's case and discarded the Code's requirement of a showing of good cause, making the right to independent testing absolute.

However, in the second issue, the Court seems to have abandoned its notion of materiality for a standard of affordability. On the part of the defendant, the Court cited case law that the state is not required to provide an indigent defendant with everything a wealthier defendant might be able to afford. More importantly, the Court concluded the financial burden to the County of paying for independent chemical testing in all controlled substance cases would be too great.

Examples abound of wealthy defendants procuring a better defense than an indigent defendant.  However, if an issue is always material to an indigent defendant's case to the point of making the right to independent testing absolute, it seems odd that the indigent defendant's right can be defeated by fiscal concerns of the County, which is in a much better position to pay for testing.

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DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

The Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual--intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person "by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another."  Felony DWI occurs when a person "is intoxicated while operating a motor vehicle in a public place" and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an "elements" analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI's requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them "specific attendant circumstances" that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word "intoxicate" in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson's argument (same offense). However, the court considered the factors supporting the state's position (separate offenses) as "more substantial." In the court's view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson's right to protection from double jeopardy.

The Sixth Amendment guarantees a criminal defendant's right to a "public" trial. The Texas Court of Criminal Appeals recently confronted the question of whether and under what circumstances a criminal defendant may lose that right.

Bobby Joe Peyronel was convicted of a criminal offense. During a break in the punishment phase of Peyronel's trial, an unidentified female supporter approached a juror and asked how it felt to convict an innocent man.

Fearing juror intimidation and apparently unable to identify the woman, the prosecutor asked the judge to exclude all female members of Peyronel's family from the courtroom. Peyronel objected, arguing that granting the request would exclude Peyronel's wife and daughter and give the jury the impression Peyronel had no supporters. (The CCA's decision did not explain why the judge did not just question the juror, identify the woman who made the comment, and exclude her from the courtroom.)

In a possible overreaction, the judge ordered all witnesses and observers out of the courtroom. The punishment phase of the trial proceeded with witnesses waiting outside the courtroom until time to testify.

Peyronel appealed, arguing a violation of his constitutional right to a public trial. No one disputed that right. However, the State argued that because Peyronel did not ask the trial judge to do anything and did not inform the judge that he planned to appeal based on an alleged Sixth Amendment violation, Peyronel had forfeited his public-trial right.

The Court first considered whether the right to a public trial is mandatory (must be enforced no matter what a defendant says or does), waivable (can be knowingly and intentionally relinquished by a defendant), or forfeitable (can be given up if a defendant does not insist on enforcement). The court briefly reviewed cases from other jurisdictions and concluded the public-trial right could be forfeited.

The Court then considered whether Peyronel had forfeited his public-trial right. Although Peyronel objected to the trial judge's order to clear the courtroom, the CCA did not consider that to be the equivalent of asserting a violation of his constitutional right. The court said there was no "magic language" Peyronel needed to use to assert the violation, but he at least had to specifically state what he wanted the trial judge to do and upon what grounds his request was based. The CCA determined Peyronel did not meet that standard and, as a result, forfeited his right to a public trial.

Read the full opinion: Peyronel

In a strong dissent, Justice Johnson noted that the prosecutor's request was just to exclude female family members from the courtroom and Peyronel objected, arguing that such a broad action would remove his wife and daughter. Justice Johnson said that objection was sufficient on its own and it also implied Peyronel's objection to a complete exclusion.

Justice Johnson compared the situation to buying an appliance. If a customer has a two-foot-wide space for an appliance and a seller tries to sell an appliance that is two inches wider, the customer will object. By objecting to that appliance, Justice Johnson said, the customer is also making it clear that he would object to the seller substituting an appliance even wider than two feet, two inches. According to Justice Johnston, when Peyronel objected to the exclusion of female members of his family because it was too broad to accomplish the intended purpose, that also constituted an objection to the exclusion of even more people and made it clear to the trial judge that his order to clear the courtroom was too broad as well.

Peyronel v. Texas is interesting in at least two respects. Anecdotally, it seems odd that neither the majority nor the dissenters were troubled at all by the fact that the trial judge went beyond the prosecutor's request and ordered everyone from the courtroom rather than trying to identify the woman who was the object of concern and removing her.

More fundamentally, the principle that some constitutional rights can be waived is well established; for example, Miranda rights are frequently waived. But, the court's opinion suggests that a defendant can lose his constitutionally protected public-trial right by not speaking up, or, presumably, by speaking up but not speaking loudly or eloquently enough.

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.