Brandon W. Barnett | Criminal Defense Attorney | Barnett Howard & Williams PLLC

Jan 25

3

Murder Case Hinges on the Privacy of Cell Tower Records

By Brandon Barnett | Murder

Was it an Unlawful Warrantless Search Under the 4th Amendment for the DA to Obtain Cell Tower Records From a Third Party and Use Them Against a Defendant Charged with Murder?

Ford v. State (2015) | San Antonio Murder Mystery

J Cell Tower Records Criminal Defense on Ford and Dana Edwards dated off and on for two years in the small town of Alamo Heights, Texas. After a long break-up, the former couple saw each other at a friend’s New Year’s Eve party. The group of friends drank heavily and played “Apples to Apples,” an interactive game that required the participants to reveal their thoughts on personal topics. During the game, the subject of marriage came up and Ford was singled out about his on-again-off-again relationship with Edwards. Angry, Ford left the party before everyone else.

The next day, Edwards’s parents were expecting her in Fredericksburg, but she never showed. Worried, her parents drove to her condo, where they found her dead. Because she sustained lacerations and trauma to her head, the police opened up a murder investigation.

The State Gathers Evidence

On January 2nd, Ford volunteered to give a statement. In his statement, Ford said he left the party around 11:30 pm, went home, and fell asleep. Ford said that his new cell phone had been in his possession the entire night.

The investigators obtained video footage of the streets bordering Edwards’s condo, footage that conflicted with Ford’s official statement. At 11:24 pm, the camera captured a white SUV, similar to Ford’s vehicle, turn into the victim’s condo complex. At 1:00 am, Edwards’s car entered the complex. At 3:16 am, with the headlamps turned off, the white SUV exited the complex. No one could definitively say the white SUV belonged to Ford, as the license plate and registration stickers could not be determined because of the quality of the video.

A week later, the San Antonio District Attorney’s Office filed an application under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure, and in compliance with Communications Act, to obtain Ford’s historical cell-site-location records from AT&T Wireless.

Ford’s Case Goes to Trial

At trial, a radio network engineer from AT&T Wireless testified about the records. The engineer said that AT&T can tell where a cell phone is located by examining the sector information. He explained, “when a person sets up a call, receives a call, or sends a text, the person does so in communication with…sectors in the cell-phone network…[which] enables [AT&T] to look up the records for a particular phone number…determin[ing] [the] cell phone’s proximity to a cell…tower.” Ford v. State, 444 S.W.3d 171, 190 (Tex. App.—San Antonio 2014). This is also true when the phone is not being actively used, as “unanswered texts and calls…automatic downloads….cause the [phone] to…ping the network to alert the network that the [phone] is in a particular…area.” Id.

According to AT&T, Ford’s cell records indicate that the numerous pings place Ford at the party, then at the victim’s condo complex and finally, at his home. The “ping” time frame also matches the timestamps from the camera footage for the unknown white SUV. Id.

The jury found Ford guilty of murder, sentencing him to forty years in prison. Ford appealed, and the court of appeals affirmed the verdict and sentence, relying upon the third party doctrine. Justice Chapa dissented in the court of appeals case, stating, in a nutshell, that Ford retained a reasonable expectation of privacy in his physical movements and location; he did not voluntarily surrender his expectation of privacy; and because the State did not secure a warrant before obtaining the records, Ford’s Fourth Amendment rights were violated. Ford appealed to the Criminal Court of Appeals (“CCA”).

The Big Issue | Privacy of Cell Tower Records

Did the State of Texas’ warrantless acquisition of historical cell-site-location information—recorded by a 3rd party cell-phone service provider—violate the Fourth Amendment? Did Ford have a reasonable expectation of privacy in his movements and location?

What does the law say about the expectation of privacy in cell phone records? What is the Third Party Doctrine?

The Fourth Amendment Guarantees , “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. A person may appeal a verdict under a privacy theory if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society…recognize[s] that expectation as reasonable. State v. Granville, 423 S.W.3d, 399, 405 (Tex. Crim. App. 2014).

The Third Party Doctrine allows for acquisition of information revealed to a third party (such as a cell phone company or a bank). Case law reflecting this doctrine suggests that information that must be disclosed [in the normal course of business] for the phone company to provide the requested service, is not off-limits to law enforcement and is not a violation of the Fourth Amendment. However, courts across the United States remain divided on this issue.

The Texas Court of Criminal Appeals Weighs in on Cell Phone Records and the Third Party Doctrine

Here, the CCA says that the DA’s office did not violate Ford’s Fourth Amendment rights because Ford had no legitimate expectation of privacy in records held by AT&T, records kept in the normal course of business, pointing to his location and movements in the past. AT&T uses the records for its own business purposes to improve network functionality. Moreover, phone service providers are required, by the FCC to locate a cell phone when a 911 call is placed. In re Application (Fifth Circuit), 724 F.3d at 611-12. Therefore, “The type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to defendant[s], even if it concerns [a defendant].” United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) . Acknowledging that Fourth Amendment claims may survive with in the case of GPS devices, or in long-term monitoring of individuals, the CCA affirms, holding, “In the circumstances [of this case], we do not see a jurisprudential reason to stray from the third-party doctrine.”

What could Ford v. State mean for you?

Generally speaking, your cell phone records, by way of the third-party doctrine, are subject to review by law enforcement and could be used against you in criminal proceedings in Texas. The CCA is saying that a reasonable person does not have a reasonable expectation of privacy in his or her cell tower records.

Jan 24

4

Child Erotica Defense Attorney Fort Worth

Child Erotica is Not Probable Cause for Possession of Child Pornography

By Brandon Barnett | Computer Crimes

10th Circuit Holds that Possession of Child Erotica Does Not Give Rise to the Likelihood of Possession of Child Pornography

Child Erotica Defense Attorney Fort Worth Paul Edwards was charged with possession of child pornography (which is illegal) after officers executed a search warrant based on his possession of child erotica (which is not illegal). The search of Edwards’s home resulted in the discovery of thousands of images and videos of child pornography. Edwards filed a motion to suppress the images on the grounds that the affidavit failed to prove his possession of child erotica amounted to probable cause to believe that he also possessed child pornography. The court denied this motion and Edwards entered a conditional guilty plea, reserving his right to appeal the denial, and was sentenced to 63 months in jail followed by 7 years of supervised release.

Full Court Opinion: United States v. Edwards (USCA 10th Circuit, 2015)

The Probable Cause Affidavit that Led to the Search and Arrest

Edwards was identified by agents that were investigating a website for individuals suspected of child exploitation as an internet user that had shared 715 images of the same prepubescent girl, approximately 10 years old. In some of the photos the girl was clothed and in others she was “scantily clad.” The government acknowledged that the agents did not observe Edwards posting or viewing child pornography. Instead, the affidavit described the photos as child erotica and only provided evidence that Edwards possessed legal child erotica. The officer explained in the affidavit that those who collect child pornography are likely to collect child erotica but made no distinction that a possessor of child erotica is highly likely to also possess child porn. This opinion was used by the magistrate in issuing the warrant and again by the trial court in denying Edwards’s motion to suppress.

The Legal Significance: Child Erotica vs. Child Pornography

While it is legal to possess child erotica, it is illegal to possess child pornography. Here, child erotica is defined in the affidavit as “materials or items that are sexually arousing to persons having a sexual interest in minors but that are not, in and of themselves, obscene or that do not necessarily depict minors in sexually explicit poses or positions.” The affidavit further explains that child erotica “includes things such as fantasy writings, letters, diaries, books, sexual aids, souvenirs, toys, costumes, drawings, cartoons and non-sexually explicit visual images.”

Child pornography is any visual depiction, whether authentic or computer generated, of a minor engaging in sexually explicit conduct. 18 U.S.C. §2256(8). To cross the line from legal child erotica to prohibited child pornography, there must be nudity that displays the genital area of the child and that display must also be lascivious. United States v. Horn, 187 F.3d 781. A photo is lascivious if it focuses on the genital area of a child and the apparent purpose of the photo is to arouse sexual desire. United States v. Kemmerling, 285 F3d 644.

Participation in Legal Conduct Does Not Prove Participation in Criminal Conduct

In many situations courts are hesitant to presume that defendants are more likely to engage in certain illegal activities based on their participation in a certain legal activity, as they should be. Similarly, here, the appellate court found that there is no sufficient connection between the posting of child erotica, a legal activity, and the possession of child porn that establishes probable cause to believe that child porn will be found in the home of the person who posted child erotica.

While some courts have found that the possession of child erotica is one factor that can be used to support probable cause of the possession of child porn, no court has found that one factor to be probative in making a probable cause determination. Instead, the courts look to the totality of the circumstances surrounding defendant’s said possession of child erotica to prove that such circumstances amount to the high probability that defendant is also in possession of child pornography.

The appellate court found that the affidavit lacked information based on the officer’s experience about the type of materials possessors of child erotica are highly likely to maintain and lacks any evidence to show that Edwards was a collector of child pornography. Further, the court determined that the information in the affidavit failed to provide a “substantial basis” to find probable cause that child porn would be found in Edward’s home.

Ultimately, this case is the perfect example that mere possession of child erotica cannot be used to prove that a defendant has committed the offense of possession of child pornography.

Jan 15

2

Justice of the Peace Convicted of Theft By Deception for Use of Airline Voucher

By Brandon Barnett | Theft

Theft By Deception? County Official Uses Airline Flight Voucher (Purchased with Government Charge Card) to Buy a Plane Ticket for his Son.

Theft By Deception Texas In Fernandez v. State, the Texas Court of Criminal Appeals considered the case of a Val Verde County Justice of the Peace who used an airline voucher for a flight that was unrelated to a government purpose. The CCA discusses the offense of Theft by Deception in Texas, explaining what it means and what it doesn’t mean. It is an interesting case because it seems so petty – the amount was only 300 dollars and some change. Why didn’t the JP simply purchase a new ticket for his son? Read more.

Travel Plans Arranged

James Fernandez was charged with “theft by deception” in 2012. Fernandez, serving as a Justice of the Peace in Val Verde County, wanted to travel to Orlando, Florida for a work-related conference in June of that year. After obtaining permission to travel to the conference and to use his government-issued credit card for airfare, Fernandez asked his office clerk to book the flight. The clerk made flight arrangements with Southwest Airlines.

Travel Plans Cancelled

Just before the conference, Fernandez became ill and cancelled his flight itinerary. Per Southwest Airlines’ refund policy, the airline issued a “refund-voucher” to Fernandez, in his name, valid for travel until February 2013. The refund-voucher was valued at $381.60, a dollar-for-dollar match to the amount originally paid for the ticket to Orlando.

In August, Fernandez asked his office clerk for the flight information from the cancelled Orlando trip. Once the clerk located the information, Fernandez told the clerk to give the flight reservation number to his son, Fernandez Jr.. The clerk complied.

Routine Audit Leads to an Investigation

During a routine review of the County’s flight budget, the County Auditor contacted Southwest, attempting to get a full refund of the flight. At that time the Auditor learned that the refund-voucher from the Orlando ticket had been used by Fernandez for a flight to Phoenix, Arizona in August. The auditor also learned that Phoenix flight incurred additional fees, fees that were not paid for by the county. Relying on Val Verde County’s policy that prohibits the use of county property for personal use, the auditor reported the transaction, triggering an investigation by the Attorney General.

Too Late to Repay, Fernandez Goes to Court

Soon after, Fernandez tried to pay for the airline voucher, but the auditor refused to accept his payment. Fernandez was charged with “theft by a public servant by way of deception.” At trial, Fernandez Jr. testified that his father had intended to repay the county, nevertheless, Fernandez was convicted—a conviction upheld by the Fourth Court of Appeals. Fernandez appealed to the Court of Criminal Appeals (“CCA”) for relief, arguing that State failed to prove he induced consent by way of deception at the time he misappropriated the government’s refund-voucher. The CCA must determine whether Fernandez committed “theft by deception” when he purchased online airfare for government-related travel with a government credit card, but canceled, using the refund-voucher for personal travel without “correcting the impression” that the refund-voucher would be used for future government-related travel.

What is Theft by Deception Under Texas Law?

Texas law defines theft as, “the unlawful appropriation of property with the intent to deprive the owner of the property.” Tex. Penal Code § 31.03(a). “Appropriation is unlawful if it is without the owner [of the property’s] effective consent.” Id. § 31.03(b)(1). Consent is defined as, “assent in fact, whether express or apparent,” and is “not effective if it is induced by deception or coercion.” Id. § 1.07(a)(11); §31.01(3)(A). Deception means, “failing to correct a false impression…fact that is likely to affect the judgment of another in the transaction, that the actor previously created…by words or conduct, and that the actor does not now believe to be true.” Id. § 31.01(1)(B). The burden of proof is on the State to prove “that the owner of the misappropriated property was induced to consent to its transfer because of a deceptive act of the defendant.” Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011); Daugherty v. State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013).

The CCA Decides

Here, the CCA explains that “consent” is a key issue—that the initial consent Fernandez received from his office to use the government credit card to make the flight reservation was not the consent that is the basis of the conviction. Rather, it was the consent Fernandez obtained when he asked his clerk to send the information to his son, “because without the voucher number, Fernandez would have been unable to access the [information]” to book the flight to Phoenix. Further, the county, by way of its agent [the clerk], assented to the refund-voucher’s use because the agent gave the cancelled flight information to Fernandez and his son in August.

Moreover, the CCA says that the consent was obtained through deception. Fernandez established with his office that he would be attending a work-related conference in June, thus creating the impression that county funds were being used for a work-related purpose. Once the flight was cancelled, the refund-voucher that was issued is to be considered the county’s property, “just as the ticket to Orlando had been [considered county property].” Fernandez failed to correct the impression that he was using the ticket/refund-voucher for work-related travel, instead using the refund-voucher for personal travel without telling anyone in the Val Verde County’s business office. “By remaining silent, [Fernandez] left intact the impression he created…that the [refund-voucher] would be used for county-approved travel.” The CCA affirmed the decisions rendered by the trial and appeals courts.

Judge Johnson filed a concurring opinion that simplified the majority’s opinion. “When [Fernandez] failed to…tell the county….that he had not used the original ticket…and [did not] surrender the voucher, [Fernandez] failed to correct the impression of appropriate travel on county business that he had previously created.” This alone was the deception that is required to support the conviction.

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Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas. Our criminal defense attorneys handle all felony and misdemeanor offenses in Tarrant County and surrounding areas. For more information about our attorneys, visit our Firm Profile page.

Jan 05

3

5 Things I Wish Defense Attorneys Knew in Federal Criminal Cases

By Brandon Barnett | Criminal Defense

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas. The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

Read up on the U.S. Attorneys’ Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA’s mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

Get out ahead of the government’s case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it’s an opportunity for you to shape the case before it even gets started. Don’t be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and “pretrial diversion” (Section 9-22.000) in lieu of indictment.

Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn’t rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and “acceptance of responsibility.” See section 3E1.1. Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

“The squeaky wheel gets the grease”/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client’s case and hearing from you, it’s more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I’ll start preparing to do so.

The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don’t have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

Glen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues. See his past article at Task & Purpose.

Dec 22

1

Possible Punishment Scenarios for Ethan Couch Once He is Apprehended

By Brandon Barnett | Juvenile

What will happen to Ethan Couch?

We’ve recently been asked about fugitive Ethan Couch, the Texas teenager that was adjudicated of intoxication manslaughter, and the potential consequences for the “affluenza” teen once he’s caught. Juvenile determinate sentencing in Texas is an area of law with which most people are unfamiliar. In this post, attorney Luke Williams explains some of the possible punishment scenarios for Ethan Couch under the juvenile justice and adult criminal justice systems.

Has Ethan Couch violated his probation?

Once Ethan Couch is apprehended, the State will have to prove, by a preponderance of evidence, that the teen violated a term or condition of his probation. Because juvenile records are confidential under Texas law, the public or press has not been made known of the details of Couch’s probation up to this point. But typically – at the very least – a juvenile probation in Tarrant County requires a juvenile to abstain from the use of drugs and alcohol, avoid persons or places who are using drugs and alcohol, and report regularly to the juvenile probation department.

In light of the recent Twitter video showing what purports to be Ethan Couch at a party involving alcohol and drinking games, there could potentially be evidence that he violated his probation by being amongst persons and at a place where persons are using alcohol. This could be difficult to prove. But, the more pressing problem for the teen now is his disappearance. He would undoubtedly have been required to check in with the juvenile probation department on a regular basis or when requested. At this point, as evidenced by the arrest warrant that has been activated for him, we know that he not checked in with probation as required. So, the State will likely have a much easier case to prove that he’s violated his probation by absconding.

Juvenile Probation is Discharged When the Probationer Turns 19 Unless the State Acts to Transfer

Ethan Couch’s probation term is scheduled to extend beyond his 19th birthday. However, the juvenile court will have to discharge Couch on his 19th birthday unless the court has acted earlier to transfer the probation to the appropriate criminal adult County Community Supervision and Corrections Department. This can (and likely will) be done by motion of the state prosecutor in Couch’s case. If transferred, Couch would be under the jurisdiction of the county’s adult probation department and would face adult prison time should the probation be revoked. This would be the normal course of events had Couch not absconded.

What happens once the Ethan Couch is found?

If Couch is caught before he turns 19, and if the court finds that he has violated his probation, the court can either:

Keep him on juvenile probation with changing anything (highly unlikely);
Modify his probation to add new terms and conditions and keep him on probation; or
Revoke his probation to commit him to the custody of Texas Juvenile Justice Department (TJJD) for a determinate sentence that “does not exceed the original sentence assessed by the court” (10 years). The court could commit the juvenile for a shorter sentence than originally assessed, but not for a longer one. See our earlier post to read more about determinate sentences.

If Couch is caught after he turns 19, we can presume that the State will have filed a motion to transfer the probation to adult supervision. If the probation is transferred to adult court, and Couch is found to have violated the probation, then the court could sentence him to serve his original sentence (up to 10 years) in the Texas Department of Corrections – Institutional Division (otherwise known as the adult penitentiary).

Again, because juvenile records are confidential under Texas law, details of Couch’s probation up to this point are unclear. So, there could be other details and/or Orders issued by the judge in Couch’s case that could change or negate the possible scenarios mentioned above.

Regardless, the fact that Couch remains missing is not a good thing for his future.

Dec 21

17

No Refusal Weekends for DWI in Fort Worth, Texas

No Refusal Weekends in Texas | DWI Blood Search Warrant

By Brandon Barnett | DWI

What you need to know about No Refusal Weekends in Texas | Fort Worth DWI Attorneys

No Refusal Weekends for DWI in Fort Worth, Texas Throughout the year, as various holidays approach (Christmas, New Year’s, Super Bowl weekend, 4th of July, etc.), we receive questions about “No Refusal Weekends,” in which police agencies crack down on driving while intoxicated or DWI. It is important that Texas motorists understand the rules of the road, so that every holiday season remains merry and bright. Many have seen the “No Refusal” notices on electronic road signs, heard the “No Refusal” advertisements on the radio, or watched stories on the news related to “No Refusal” for suspected drunk driving. What is “No Refusal” and how does the law impact your holiday travel? Understanding a few basic things about the law could help you in the event of a traffic stop or a detention by a law enforcement officer.

What is No Refusal Weekend?

No Refusal Weekend refers to a short period of time, typically a holiday weekend or the weekend of a special event, such as the Super Bowl, where law enforcement advertises the ability to conduct routine traffic stops, detaining motorists for suspected DWI. During the stop, law enforcement requests a blood or breath sample, and, if the motorist refuses to comply, law enforcement immediately contacts a judge or magistrate who is designated “on call” during the No Refusal time frame. If the law enforcement officer conveys to the judge that (1) there was reasonable suspicion to detain the motorist for a traffic or criminal offense, and, (2) there is probable cause to believe the motorist is driving under the influence of drugs or alcohol, then the judge quickly issues a search warrant for the sample. Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. At that point, law enforcement may call for a phlebotomist to take the sample on site, or may transport a motorist to a facility to obtain the sample. If all goes according to plan, “no refusal” speeds up the process by which law enforcement obtain samples used for DWI/DUI arrests. Further, the sample becomes evidence for trial.

What is the purpose of No Refusal Weekend?

The entire No Refusal process from detention to arrest is faster in theory, the goal being to catch motorists who are driving under the influence quickly, and to capture the highest blood alcohol content (“BAC”) possible. In Texas, a BAC level of .08 is considered legally intoxicated. No Refusal Weekend differs from a DWI stop on regular days by it’s speed — the quick phone call to an “on call” judge who is waiting by the phone to issue warrants — and it’s deference to law enforcement in the moment. So what does this mean for you, the Texas motorist?

You have the right to refuse blood and breath tests initially.

The term No Refusal sometimes confuses motorists. Many believe they cannot refuse a law enforcement officer’s request for a sample during a No Refusal period. Not true. On No Refusal Weekend motorists still have the right to refuse to provide blood and breath during a traffic stop. However, if law enforcement obtains a search warrant for blood, the motorist must comply; failure to comply may result in additional charges. Once the officer has a warrant in hand, the rules change. But before the officer obtains a warrant, you can refuse to provide breath or blood and you may refuse to submit to field sobriety tests. For notifications about when No Refusal Weekends begin in the Dallas Fort Worth area, and to know your rights if you are stopped by an officer, download our free App from the App Store or Google Play — know your rights before you go out!

*Note: Refusal of a breath or blood test may result in temporary loss of driving privileges, even if the officer later obtains a warrant to conduct the search. The courts will typically grant an occupational driver’s license to work and household tasks.

Warrantless searches for blood alcohol content in DWI cases violate the Fourth Amendment.

The No Refusal law comes from an “implied consent” provision in the Texas Transportation Code. The 2007 law states, “if a person is arrested for…operating a motor vehicle in a public place…while intoxicated…the person is deemed to have consented…to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. However, in 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not…fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a…Fourth Amendment balancing test.” State v. Villareal, PD-0306-14 (Tex. Crim. App. 2014). See also, the US Supreme Court’s opinion in Missouri v. McNeely. In summary, a motorist may refuse a blood or breath test upon an initial request by law enforcement, but after a warrant is obtained from a judge, a motorist may not refuse at that point because it is mandatory—hence the name No Refusal.

Please take the time to know your responsibilities and rights before heading out on No Refusal Weekends in Texas. Download our App on the App Store or on Google Play for the latest information on No Refusal Weekends. Have a safe and happy holiday season! This article is for educational purposes only and does not take the place of legal advice. If you are in need of a DWI attorney, please contact our office for a free consultation at (817) 993-9249.

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Dec 20

31

License Plate Law in Texas | Front License Plate | Two Plate Rule

By Brandon Barnett | Traffic Offenses

One License Plate or Two: Does Your Car Need a Front License Plate In Texas?

Texas front license plate law How many license plates does your vehicle need in order to comply with Texas law? Do you need one or is there a two plate rule? Should you drill holes into the front bumper of your car to install a front license plate, or will you be alright with a rear plate only? If you are reading this article, perhaps you have exhaustively Google-searched license plate laws out of frustration. Find out what the Texas Transportation code says about license plates and what the implications are for you, the Texas motorist.

Do I need a Front License Plate in Texas? Yes. Texas law requires that every vehicle maintain a license plate in the front and rear of the vehicle. The current fine for failing to display a front license plate in Texas is $200.00.

Do I need a Front License Plate in Texas? | An Error In the Texas Transportation Code Created a License Plate Loophole

Since 1934, Texas law has required that Texas motorists display a front and a rear license plate. In 2011, House Bill 2357 modified the statutory language making driving a vehicle without displaying a front and a rear license place both illegal and punishable by a fine. In January of 2012, Texas lawmakers revised the transportation code, once again, to include several new provisions. However, in the process of making revisions, the provision mandating a penalty for vehicles not in compliance with the “two plate rule” was accidentally stricken from the Texas Transportation Code. From January 2012 to September of 2013, law enforcement could not lawfully issue citations for failure to display a front license plate. Unfortunately, this brief period of time also created a lot of confusion around the “two plate rule” that reverberates to the present day.

Texas Lawmakers Amend the Code to Close the Loophole | Front License Plate Now Required in Texas

The two plate rule was originally created for the purpose of making identification of vehicles and their owners more efficient for automatic plate readers and law enforcement agencies. In 2012, the Texas A&M Transportation Institute (“TTI”) issued a report, citing overall effectiveness of the two plate rule, unlike states that only required one rear license plate on a vehicle. TTI found that front license plates were (1) easier to read in the daylight; (2) helpful in toll billing; (3) aided law enforcement in tracking down violators of the transportation code by way of automatic plate readers; and (4) allowed Homeland Security and U.S. Customs and Border Protection to process and screen vehicles more effectively and quickly. Thus, the front license plate requirement in Texas.

Aware of the inadvertent loophole created by omission of the penalty provision, lawmakers amended the transportation code in September of 2013 to mandate punishment for Texas motorists who do not display both the front and the rear license plates. Motorists who do not have a front license plate risk incurring a Class C misdemeanor charge, punishable by fine not to exceed $500.

Implications For the Texas Motorist | Texas Front License Plate Law | Penalty for Front License Plate Violation

Currently, the penalty for operating a vehicle without a front license plate is $200.00 – subject to change with subsequent legislation. However, there may be more to this than meets the eye. Generally speaking, when a vehicle is out of compliance with mandatory safety and administrative regulations (such as only having a rear license plate), by statute, Texas law enforcement has “probable cause” to conduct a traffic stop. At minimum, such a traffic stop could include pulling the vehicle over, running a check of the license plate, researching the driver’s license and registration of the motorist, and issuing a citation for violating the two plate rule.

In sum, a Texas motorist who drives without both plates risks being pulled over for a lawful traffic stop and fined at least $200.00 for a misdemeanor traffic offense.

References:

Dec 18

3

Prosecutor’s Online Comments Did Not Prejudice the Jury

By Brandon Barnett | Ethics

When should online comments made by prosecutors rise to the level of misconduct, so that a ‘presumption of prejudice’ would likely be granted on appeal?

Online Comment US v. Pratt A district court convicted Renee Pratt, a prominent Louisiana politician, of conspiracy to violate the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). 18 U.S.C. § 1962(d). Pratt’s conviction resulted from a thorough investigation of her long-time friend, Mose Jefferson, a well-known Louisiana community organizer and politician, as well as his family. United States v. Pratt, 728 F.3d 463 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328 (2014). The Jefferson family and Pratt were accused of obtaining community-service grants, and using the money for personal gain. Id. Pratt timely appealed, citing new evidence that several prosecutors from the U.S. Attorney’s Office (“USAO”), made negative and persuasive online comments in public forums, including a local newspaper’s website, regarding her case around the time of trial. Pratt claims that the jury rendered a guilty verdict because of the disparaging and prejudicial comments.

Read the 5th Circuit’s Full Opinion in United States v. Pratt.

Around the time of Pratt’s filing a motion for a new trial, the United States Department of Justice (“DOJ”) conducted an investigation to determine whether attorneys working for the DOJ/USAO were making inappropriate statements online about pending cases. Office of Prof. Resp., Dep’t of Justice, Investigation of Allegations of Professional Misconduct Against Former Assistant Attorneys Salvador Perricone and Jan Mann. OPR Report at 2, (2013). The results of the investigation showed that attorneys from the Louisiana division of the USAO and DOJ “anonymously authored dozens of…online comments…posted on nola.com, the website of the widely-read New Orleans Times- Picayune.” Id. Using several pseudonyms, a senior-level prosecutor, “posted his views…of Louisiana politics…refer[ring] to Pratt’s case.” Id. While Pratt’s trial was pending, the prosecutor commented, “If Pratt walks, it’s the judge’s victory…a sad day for justice.” Id. Post-conviction, a second prosecutor, “proclaimed Pratt’s guilt, defended Pratt’s sentence, and characterized Pratt as driven by greed” on nola.com. OPR Report at 42 (reproducing comments posted in Nov. 2011).

A few months later, the district court that convicted Pratt held a limited evidentiary hearing to “develop a clearer record of any [outside] influence the anonymous comments may have had on Pratt’s trial.” Unlike a standard hearing, this ‘limited hearing’ consisted of a questionnaire submitted to two jurors who had previously identified nola.com as their source of news during jury selection. Both jurors reported no influence by the comments on nola.com. Accordingly, the district court denied Pratt’s motion for a new trial, concluding, “[there is] a lack of evidence that…the jury…was tainted by…the [online] comments.” Pratt appealed to the Fifth Circuit Court of Appeals for relief.

The Court of Appeals must determine whether the online comments made by the high-level attorneys rise to the level of prosecutorial misconduct, so that in Pratt’s case, a presumption of prejudice may be granted, relieving Pratt from the district court’s guilty verdict in her RICO case. The Court considered a Rule 33 Motion for New trial, where a court may “vacate a judgment and grant a new trial if the interest of justice so requires” and in the interest of “fairness of the trial.” Fed. R. Crim. P. 33(a); United States v. Turner, 674 F.3d 420, 429 (5th Cir. 2012) (quoting United States v. Severns, 559 F.3d 274, 280 (5th Cir. 2009); United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980).

A presumption of prejudice may be made in certain extreme cases or pre-trial publicity. Skilling v. United States, 561 U.S. 358, 381 (2010). There is no ground, however, to presume prejudice based on prosecutorial misconduct alone. In affirming a grant of a new trial, reasons for granting a new trial are “novel and extraordinary.” United States v. Bowen, 799 F.3d 336, 339 (5th Cir. 2015). For a new trial to be warranted, the court must normally find that the misconduct in question actually prejudiced the defense.” Id. at 356; United States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001).

Here, the Court concludeed that the prosecutorial misconduct—the online comments—is “too far removed from the proceedings to support a presumption of prejudice,” as the attorney who made the comment, “did not prosecute or deal with the Pratt trial,” and because, “no one from the trial team posted the comments…while the trial was underway.” Second, the Court states that rulings on Rule 33 Motions are “necessarily deferential to the trial court” in that the facts must be construed in the light most favorable to the lower court’s verdict. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). Lastly, the Court opined that in “certain extreme cases, pretrial publicity…can manifestly taint a criminal prosecution, [giving] rise to a presumption of prejudice.” Skilling v. United States, 561 U.S. 358, 379 (2010). The Court says that the comments made regarding Pratt’s trial were not extreme, “this is not such an extraordinary case…this…concerns a handful of anonymous, speculative postings…that lacked the kind of blatantly prejudicial information…that might poison public opinion and entitle the defendant to a presumption of prejudice.” United States v. McRae, 795 F.3d 471, 481-82 (5th Cir. 2015). Even though prosecutorial misconduct did in fact occur, the Court affirms the district court’s verdict and denies Pratt’s motion for new trial. According to the 5th Circuit, the online comments were far too attenuated to apply to Pratt’s trial and did not affect the guilty verdict.

All attorneys are bound by specific ethical protocols and procedures, promulgated and enforced by each state’s bar association. In Texas, lawyers must abide by the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. Texas Prosecutors are held to an even higher standard under the “Special Responsibilities of a Prosecutor” not to make extrajudicial statements that “in the course of representing a client…a reasonable person would [not] expect to be disseminated by means of public communication if the [prosecutor] knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.” Tex. Rules of Disciplinary Procedure §3.09; 3.07(a).

Dec 16

3

Addiction Issues Are Not Just for Clients

By Brandon Barnett | Drug Crimes

Brian Cuban: The Addicted Lawyer

Brian Cuban The Addicted Lawyer Be it alcohol, drugs, or something else, many of our clients struggle with addiction. We work everyday to counsel them and help them get plugged into the right places that assist in recovery. But we sometimes forget that addiction issues aren’t limited to our clients. Many of our friends and colleagues in the legal community struggle with addiction. Overworked and overstressed, many lawyers turn to alcohol or drugs as an escape.

Recently, a friend of mine connected me with Brian Cuban. For those of you who don’t know of Brian Cuban, he is a lawyer, speaker, and activist, and the brother of Mark Cuban (the owner of the Dallas Mavericks). Brian has been fighting (and winning) his battle against addiction since 2007. He is also a writer with a new book coming out soon – The Addicted Lawyer. I asked Brian if he would write a guest blog post about addiction. The story below is from Brian. Our hope is that this story will help to remind us to remember to help our colleagues in times of need and be on the lookout for the warning signs of addiction.

Gary Was a Lawyer, A Friend, An Addict

I drove past the same bus-stop every day. To the average person on his/her way to their next “stop” of the day, in life, nothing to set it off from any other.

That morning, I saw one such story I was intimately familiar with. There was Gary waiting for the bus. A lawyer. Undergraduate of Boston College Summa Cum Laude. Near the top of his class at Antioch School of Law. On to a great job with NBC. On to the NYC nightlife and the genetic pull of a family line ripe with alcohol use. Gary was an alcoholic and drug addict long before that bus stop. An addict trying to keep the shreds of his life and legal career together.

I had met Gary years before when we both worked of-counsel to a local Dallas firm. I was trying to hold my life together between addiction and an eating disorder. High functioning was a blessing and a curse. I needed no help. I showed up to court sober. I only did cocaine in the bathroom of the firm when I had no appointments. The pick up I needed after all night cocaine and alcohol benders. It all made perfect sense to me. In my mind, I was not an addict.

I had actually tried my last case with Gary. A bench trial contract matter. He ran the show. He was sober and brilliant. I didn’t want that show. I hated the practice of law. I was not afraid of a courtroom but I was sickened by them. A reminder of how much I hated my life and the career I had chosen for all the wrong reasons. We had a good result. Then Gary disappeared as he had sporadically done over the years since I first met him. I knew what that meant. We all knew. Periods of sobriety and stellar representation of his clients, periods of complaints of neglect and even showing up to client meetings apparently high.

Gary does not see me drive by him at the bus stop. He is looking at the ground. Waiting. My calls to him were never heard as his voicemail was full. I knew what that meant. Most addicts and their families know what that means. I went further down the road and turned around so I could drive up along side him. He got in. He had been to a 12-step meeting and was headed down to the Dallas 24-Hour club where he was a resident. He asked if I knew he had been disbarred. I had seen it in the local legal periodical. As what often happens with lawyers and addiction, clients money never made it to the client. State Bars take a dim view of stealing from clients and addiction is not an excuse. A common story. A common explanation from Gary. It was all a mistake. He had lost everything and was still in denial. I thought back to what my shrink had said to me April 8th 2007, the day I began my sobriety journey. “Brian, you have a law degree but you’re not a lawyer, you’re an addict.”

I drove Gary down to the 24 Hour Club. I bought him lunch. A familiar request for money until “he got back on his feet.” It became our routine. The bus stop. The drive. The excuses. The helplessness. Then he was gone again. The full voicemail. No longer at the transitional living home. He had tested dirty.

August 2013. My cell phone rings. A 516 area code. Long Island. Where some of Gary’s family lived. He had moved back home much as I had moved to Dallas to be with my brothers after finishing Pitt Law deep in alcohol use disorders. My family would save me. If recovery was only that simple. A quick conversation. He said he was sober and working as an attorney. He was also licensed in New York. I hid my annoyance at the fact that he had just been disbarred and yet was right back participating in another jurisdiction that may not know about his past. Was I ethically bound to say something? I struggled with the conflict between my view as a lawyer and as a recovering addict. It was not my recovery. It was his.

The day is finally here! My first book, “Shattered Image” is going to be released. Looking forward to the release party! A Facebook message from Gary. I had not heard from him in a while. The message was cheerful. A photo of a plane ticket to come to Dallas for my book signing. It would be the last time I would hear from Gary.

The message came from his ex-wife. The google explosion of his name told the story.

“Gary Abrams , 54 Fatally Struck By Truck Tractor Trailer” walking along a highway.

It is unknown whether he had been drinking but it does not matter. He is gone. He never “got it” in recovery. It’s not that he didn’t want it. He tried. I miss him and wish he had gotten it. Gary was a lawyer, a friend, a husband, a sibling, an alcoholic. an addict. In his passing, he also helped me. I know my recovery is only as good as today. Thank you Gary.

***************************

Brian Cuban: An authority on body dysmorphic disorder, male eating disorders and addiction(including steroids), Brian Cuban is the author of the best-selling book, Shattered Image: My Triumph Over Body Dysmorphic Disorder. It chronicles his first-hand experiences living with, and recovering from, twenty-seven years of eating disorders, alcoholism, drug addiction and Body Dysmorphic Disorder (BDD).

www.briancuban.com

Dec 14

2

Interference with 911 Call Conviction Upheld After Acquittal of Underlying Emergency

By Brandon Barnett | Domestic Violence

Acquitted of the Underlying Assault that Necessitated a 911 Call, Defendant’s Guilty Verdict for Interference with 911 Call Upheld, Says the Second Court of Appeals

Interference with 911 Call Fort Worth In February 2014, David Schumm and his wife were arguing in their home when she tried to place a 911 call. His wife testified that he prevented her from making the call by taking her cell phone. Fearing an assault, she ran outside, screaming for help. Schumm allegedly followed her outside, dragged her onto their porch and “strangled” her. At trial, Schumm denied all assaultive conduct and denied taking her cell phone. Schumm was charged in two separate cases with Interference with 911 Call and with Assault Family Violence with Impeding Breath. Tex. Penal Code Ann. § 42.062 and § 22.01(b)(2)(B) (West Supp. 2015). Schumm was acquitted of the felony assault charge at trial.

At a separate trial for the Interference with a 911 Call charge, the jury was allowed to hear that Schumm had been accused and tried for felony assault, however, the jury was not allowed to hear that he had been acquitted of the charge. Schumm’s attorney attempted to get a certified judgment of acquittal admitted into evidence, but the State’s relevance objection was upheld—the trial court prevented Schumm from disclosing to the jury his acquittal. Schumm appealed his conviction for Interference with a 911 Call on the ground that the trial court abused its discretion by excluding the evidence of the felony assault acquittal.

Read the court’s opinion in Schumm v. State.

Interference with 911 Call | Interference with an Emergency Call

Under Texas Law, to be found guilty of interfering with an emergency call an (1) individual (2) knowingly (3) prevents or interferes with (4) another individual’s (5) ability to place an emergency call or to request help, including with a cell phone (6) from a law enforcement agency, (7) in an emergency…[“a condition in which an individual is…in fear of imminent assault.”]. Tex. Penal Code Ann. § 42.062(a)-(d).

Appealing to the Second Court of Appeals, Schumm argues that the excluded evidence of his acquittal is relevant to the element of “emergency” (#7 above). He contends that because he was acquitted of “intentionally, knowingly, or recklessly impeding the normal breathing” of his wife, that there was no proof that an emergency actually existed, and that, because no emergency existed, not all of the elements of “interfering with an emergency call” have been fulfilled. In short, there is reasonable doubt that an emergency existed at all because he was acquitted of the underlying assault, and, because the trial testimony is her word against his.

Here, the Second Court of Appeals disagrees with Schumm, “yet the judgment of the acquittal [Schumm] sought to admit did not show that the felony jury had specifically found no emergency.” The jury did not find that Schumm’s wife was not in fear of an imminent assault at the time Schumm allegedly prevented her from using her cell phone. Instead, the felony jury found that the Schumm should be acquitted of the “assault by impeding breathing” charge. The Court notes that “emergency is not an element of assault by impeding breathing” and a “completed assault is not an element of the offense of interference with an emergency call.” Id. In short, the evidence had no bearing on whether Schumm’s wife feared an imminent assault when she tried to call 911; the Court does not address the possibility that there is reasonable doubt that an emergency existed in the first place. The Court affirms the trial court’s judgment of guilty.

Brandon Barnett