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Aug 13
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Fort Worth Illegal Search Lawyers

Equivocal Consent to Search is Still Consent

By | Search & Seizure

Search & Seizure Update | Fort Worth Illegal Search & Seizure Attorneys

Fort Worth Illegal Search LawyersLate in the evening, two San Antonio police officers saw a truck driven by Arthur Warren. The truck matched the description of a vehicle that was suspected of transporting a large shipment of narcotics. When the officers saw Warren’s truck, they observed that the license plate on the trailer was not illuminated, and they saw the truck swerve across the median and across the double white line.

The officers stopped Warren’s vehicle. Officer Dupee testified that he saw a can of beer inside the truck. Officer Galvan asked Warren to get out of the truck, and the officers performed a field sobriety test on Warren.

The officers asked Warren if they could search the truck and trailer. Officer Dupee testified that Warren said, “Yes, go right ahead.” Officer Galvan saw something peculiar as he searched the truck and signaled Officer Dupee to handcuff Warren. Officer Dupee told Warren that he was not under arrest, but he was just being detained. Officer Dupee testified that Warren’s demeanor changed from “nice and compliant” to “upset and depressed.” Warren gave the officers the keys to a compartment where they found marijuana.

Warren testified that he did not give consent to search the truck and trailer, but rather said, “Well, you’re going to anyway.” He further testified that the officers handcuffed him only after he became upset about how they were searching the car on the trailer.

In a pre-trial motion, Warren moved to suppress the evidence (the marijuana) as a violation of his Fourth Amendment protection against unreasonable search and seizure. The trial judge denied the motion. Warren made a plea agreement and received six years deferred adjudication.

On appeal, Warren claimed that the State had failed to prove that he voluntarily consented to the search of his truck and trailer and that any consent that might have been given was tainted because Warren was detained for an extended time.

As with any appellate review of a motion to suppress, the Court of Appeals gave almost total deference to the trial court’s determination of the facts and assessment of credibility of witnesses. The Court then reviewed the trial court’s application of the law to the facts.

An exception to the Fourth Amendment protection against warrantless searches is a search where voluntary, uncoerced consent is given. The State bears the burden of proving that the search was voluntary. Warren argued that the State did not meet this burden.

The trial judge determined Officer Dupee to be credible when he stated that Warren gave consent to the search voluntarily and not under duress. Warren’s claim that he felt he had no choice but to consent was considered, but the Court of Appeals noted that case law provides for a presumption that if someone’s constitutional rights are about to be violated, the individual will assert those rights.

The Court of Appeals gave deference to the trial court’s assessment of Officer Dupee’s and Warren’s credibility and upheld the conclusion that Warren’s consent was voluntary.

As for the length of the detention, the Court noted that police cannot use a traffic stop as a “fishing expedition” to discover unrelated criminal activity. Once the purpose of a traffic stop is satisfied, additional reasonable suspicion is required for further detention. The trial court had found that the detention was initially related to the tip that narcotics were being transported in a vehicle matching the description of Warren’s truck and that Warren’s erratic driving justified the officers investigating whether he was intoxicated.

Even if the officers had satisfied their investigation of Warren’s intoxication, they were justified in continued detention due to the traffic violations they had observed and their observation of Warren’s bloodshot eyes and the beer can in the cab of the truck. Based on the officers’ testimony that Warren had consented to the search of the vehicle, the trial court found that the detention was not extended illegally. The Court of Appeals agreed that the officers had probable cause to initiate the stop, that Warren consented to the search and that the length of the detention was not unreasonable.

This case highlights two principles of Fourth Amendment law. First, while the State is required to prove the voluntary nature of a consent to search, the court is not required to accept the defendant’s position on that issue if the circumstances indicate that consent was voluntary. Second, while police officers may not extend a traffic stop to search for other possible unrelated violations, as long as the officers have reasonable suspicion of illegal activity and are investigating that suspicion, the driver can be detained until the officers’ investigation is complete.

This case reinforces our advice in previous articles…DO NOT GIVE CONSENT TO SEARCH!  Make the officers get a warrant.  It’s their job and your right!

Jul 28
2
What is a 3g Offense

Texas 3G Offenses and the Impact on Sentencing and Parole

By | 3G Offenses

Article 42.12 Section 3(g), Texas Code of Criminal Procedure | 3G Offenses in Texas

What is a 3g OffenseA feature of the Texas Criminal Code that generates frequent questions is “3G offenses.” The offenses are called 3G offenses because they were codified in section (3)(g) of Article 42.12, Code of Criminal Procedure. The code has now been updated and the 3(g) offenses are listed in Texas Code of Criminal Procedure, Section 42A.054. As a practical matter, 3G offenses are generally considered more serious crimes. Many of the crimes are “aggravated” offenses, meaning that some circumstance makes the offense worse than the base offense.

The 3G offenses are:

  • Murder
  • Capital Murder
  • Murder in specific aggravating circumstances, such as murdering a victim under 10 years of age, murder while committing another felony, murdering more than one victim, murdering a law enforcement officer or fireman acting in their official capacity, murder for hire or retaliatory murder against a judge
  • Indecency with a child by contact
  • Aggravated kidnapping–Kidnapping with the intent to hold the victim for ransom or as a hostage or with the intent to sexually or physically abuse the victim
  • Aggravated sexual assault–Sexual assault in specific aggravating circumstances, such as a victim under 14 years of age, an elderly or disabled victim, using “date rape” drugs such as rohypnol or ketamine, causing serious bodily harm to the victim or another person, or attempting to kill the victim or another person in the course of the crime
  • Sexual Assault
  • Aggravated robbery–Robbery plus threat of bodily harm, exhibiting a deadly weapon or putting an elderly or disabled individual in fear of injury or death • Sexual assault
  • Injury to a child (if offense is first degree felony)
  • Sexual performance by a child under 18 years of age
  • Criminal solicitation for commission of a capital offense (if offense is first degree felony)
  • Compelling prostitution by force, threat, or fraud or, if the victim is less than 18 years of age, by any means
  • Trafficking of persons
  • Drug offenses committed within 1,000 feet of a school, youth center, or playground or on a school bus when the defendant has previously been convicted of a similar offense
  • Burglary with the intent to commit another felony
  • Any felony where a deadly weapon is used or exhibited during the commission of the crime or during the flight from the crime–Deadly weapon includes any firearm or other device designed to cause death or serious bodily injury or capable of doing so.

The important considerations for individuals convicted of a 3G offense are the implications for their sentencing and prospects for parole. Although the laws have changed over the years as various offenses have been added to the list, the current provisions apply to any crime committed on or after September 1, 2007.

 

Probation or Deferred Adjudication on 3G Offenses

Under the Code of Criminal Procedure, a judge cannot accept a plea bargain for straight probation (community supervision) on a 3G offense. A judge can, however, accept a plea bargain for deferred adjudication as long as the underlying sentence for the offense is 10 years or less. Deferred adjudication is similar to probation, except the judge defers a finding of guilt for the specified time of probation, and if the defendant successfully completes the probation, the charge is ultimately dismissed and no final conviction is entered on the defendant’s record.

If a defendant exercises his right to trial on a 3G offense and is found guilty, only the jury can give probation. When a jury gives probation at trial for a 3G offense, it is considered straight probation because a final conviction of guilt is entered on the defendant’s record.

Parole on 3G Offenses

Conviction for a 3G crime also affects an individual’s prospects for parole. For any other offense, parole eligibility occurs when time served plus time for good conduct equals the lesser of 15 years or one-fourth of the sentence. However, for a 3G offense, an individual is not eligible for parole until actual time served, with no allowance for good conduct credit, equals the lesser of 30 years or one-half of the original sentence. If the original sentence was for any period less than four years, the individual is not eligible for parole until actual time served of two years.

Free Consultation with an Experienced Fort Worth Criminal Defense Lawyer

If you have been charged with a 3G offense, you need to speak with a criminal defense attorney as soon as possible. Our attorneys have years of experience handling 3G offenses in Texas. Call our team today to set up a free consultation in our Fort Worth office. We will take the time to answer your questions and help you take the next steps to protect your liberty.

Jul 27
1

Court Rules Indigent Defendant Must Pay for Independent Drug Test

By | Drug Crimes

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.

Contact our Drug Crimes Defense Attorneys Today for a FREE Consultation of Your Case at (817) 993-9249

Our Fort Worth criminal defense attorneys are experienced in defending drug crimes cases, including possession, possession with intent to distribute, manufacture, and more. If you are under investigation or have a pending charge, don’t wait. Contact us today.