2nd COA Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Dec 07

Confrontation Clause Violation When Accuser Does Not Appear at Trial

By Brandon Barnett | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Sep 29

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

By Madeline Pricer Jones | Self-Defense

Self-Defense Jury Charge Texas The Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

Is Fire a Deadly Weapon in an Arson Case?

By Brandon Barnett | Arson, Deadly Weapon

Defendant’s Arson Charge was Enhanced when Fire was Alleged as a “Deadly Weapon.”

Pruett v. State (2nd Court of Appeals – Fort Worth, 2016)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion here.

Fire as Deadly Weapon in Arson Case Jeffery Pruett inherited a one-third shared interest in the family home with his two siblings after the death of their elderly parents. The adult siblings had a long history of quarreling over Pruett’s living arrangements, as he moved in and out of the residence prior to the deaths of their parents. Fed up, Pruett moved into a motor home, and was often seen by the neighbors driving around the neighborhood. Meanwhile, Pruett’s siblings listed the home for sale with the intention of dividing the proceeds equally between the three siblings.

On December 19, 2012, a neighbor spotted Pruett parking his motor home in front of the residence. Pruett exited the vehicle, went into the backyard of the residence, and then got back into the vehicle and drove away. Moments later, the neighbor saw smoke coming from the back of the house. The neighbor ran to the backyard, saw flames shooting out of the residence, and called the Fort Worth fire department. Neighbors were successful in using a garden hose to extinguish a large portion of the fire. When the fire department arrived, they confirmed that there was no one inside the home and put out the remaining flames. After an investigation, the arson investigator concluded that the fire had been intentionally started with a flammable ignition source.

Pruett’s Case Goes to Trial

At trial, the fire department’s battalion chief testified that had the flames not been put out, the fire would have consumed the home. Further, the arson investigator testified that the fire was “very dangerous,” putting neighbors, fire fighters, and anyone inside the home in immediate danger of death or serious injury. Considering his use of fire to be a deadly weapon, the trial court convicted Pruett of arson, sentencing him to twenty years imprisonment. Pruett appealed to the Second Court of Appeals, arguing that the court lacked sufficient evidence to support the finding of fire as a deadly weapon. Fire as a deadly weapon carries a heavier penalty in Texas.

What does Texas Law say about fire as deadly weapon?

Fire is not considered a deadly weapon in the Texas Penal Code, however, a Court can find that fire was used as a deadly weapon if the surrounding circumstances meet a three-pronged test. Mims v. State, 335 S.W. 3d 247, 249-50. In order for fire to be deemed a deadly weapon, the evidence must prove

the object meets the definition of a deadly weapon;
the deadly weapon was used…during the transaction on which the felony conviction was based; and
other people were put in actual danger.”

Brister v. State, 449 S.W.3d 490,494 (Tex. Crim. App. 2014).

The Second Court of Appeals Weighs In – The Court must determine whether the fire set by Pruett was capable of causing death or serious bodily injury.

Did the fire meet the statutory definition of a deadly weapon?

Under Texas law, a deadly weapon can be “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(West Supp. 2015). To determine whether the object was “capable” of causing death or serious bodily injury, such “capability” must be evaluated based on what actually happened, not conjecture about what might have happened if the facts had been different than they were.” Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997).

Here, the Court says the neighbor had put out most of the fire with the garden hose by the time the fire department arrived on the scene. Further, the neighbor who called the fire department was not placed in danger. Even though the arson investigator testified that the firefighters were placed in danger, such danger is part of the job. Since there was no one else in the home at the time of the fire, there is no evidence that the firefighters were put in actual danger of death or seriously bodily injury. The Court concludes, “the facts—viewed…in light of what did happen [not what could have happened]—do not support [fire as a deadly weapon] in this case.” The Second Court of Appeals orders the deadly weapons finding to be deleted from Pruett’s judgment.

CASE UPDATE (1/25/17) – CCA Reverses the COA Decision

In reversing the Court of Appeals, the CCA held:

“An arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each offender is capable of causing is materially different. In the case at bar, the deadly nature of the fire is not difficult to appreciate. Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood. This fire was dangerous because it was left unattended and because appellant used an accelerant. As a result, the fire endangered not only the lives of the firefighters who responded to the call but also the lives of neighbors who could have been killed or seriously injured if the fire continued to spread. The fire also posed a danger from both the heat effects and the emissions of toxic chemicals. In this case, the State adequately demonstrated that the fire that appellant started was capable of causing death or serious bodily injury…When evidence at trial demonstrates that someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may appropriately attach to the arson conviction when the fire is capable of causing death or serious bodily injury. That is what happened in this case. “

Dec 19

When Does a Traffic Stop End and Improper Police Conduct Begin?

By Brandon Barnett | Drug Crimes, Search & Seizure

A Traffic Stop for a Minor Traffic Infraction Leads to Search, Seizure, and Arrest: Exactly When Should Traffic Stops End?

traffic stop duration king If you’ve been a licensed (or even unlicensed) driver in Texas for long enough, you’ve experienced a traffic stop. Whether it be for speeding or something worse, a traffic stop is not generally a pleasant experience. But in some traffic stops across the state (hopefully not yours), the police conduct a search of the vehicle, then a search of the driver or passengers, and, finally make an arrest of some sort. How does something like a broken tail light or speeding lead to search, seizure, and arrest? When traffic stops for minor infractions potentially lead to serious criminal charges, it’s important to know how Texas courts define the moment when a traffic stop ends.

King v. State (2nd Court of Appeals – Fort Worth, 2016)

Broken Tail Light Leads to a Traffic Stop

Around 1:00 am, Jennifer Dowling drove Christopher King’s car home from a night on the town. Blue Mound Police noticed that the car had a broken right tail light and conducted a traffic stop pursuant to the infraction. Police ran the standard background check on Dowling, the driver, and King, the passenger, only to discover that neither had a valid driver’s license. As a result, Dowling was arrested for driving without a license. Police did not permit King to drive the car away and informed him that they would impound the car because leaving the car behind posed a safety hazard for other motorists.

Consent to Search Obtained, Traffic Stop Continued

To begin the impounding process, police asked King to exit the vehicle. When King got out of the car, police asked if they could perform a pat-down. Nervously, King complied with the request. When King stood up, a white cylinder-shaped container fell out of King’s pants onto the ground, and he admitted that the container held meth. King was arrested and charged with possession of a controlled substance.

Trial Court Holds That King Consented to the Pat-Down

Before trial, King filed a motion to suppress the physical evidence—the meth and the container—because the evidence was seized without a warrant. At the suppression hearing, the State prevailed, arguing that King consented to the pat-down, and the interaction was a consensual encounter. King lost his suppression motion, and plead guilty to the charges. The trial court sentenced King to twelve years confinement. Arguing that the traffic stop ended when Dowling was arrested and that the traffic stop was improperly extended to him, King appealed to the Second Court of Appeals.

Second Court of Appeals Discusses Traffic Stops

The Second Court of Appeals in Fort Worth relied upon existing case law from the Supreme Court to evaluate the merits of King’s appeal. “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation.” Arizona v. Johnson, 555 U.S. 323, 333; 129 S. Ct. 781,, 788 (2009). “A traffic stop ends when police have no further need to control the scene.” Id., 129 S. Ct. at 783. According to the Second Court of Appeals, the police needed to control the scene even after Dowling was arrested. In asking King for a pat-down, they were taking reasonable steps to secure the area by ensuring that King was not a safety threat while waiting for a tow truck. Further, “the impoundment of the vehicle was a task tied to the traffic infraction, and King ma[de] no argument that the task [of impoundment] should have reasonably been completed at the time the police asked for consent to the pat-down.” The Second Court of Appeals affirmed the trial court’s holding that the traffic stop was not improperly extended.

What does all of this mean for motorists? So long as the police are reasonably securing the scene by taking steps in an effort to maintain safety, the police may continue the traffic stop until the conclusion of such safety measures, including but not limited to, pat-downs, security sweeps, background checks, and impoundments. In this case, King would have had a more colorable argument if he had been a licensed driver and the police extended the stop rather than letting him drive the vehicle away from the scene.

Nov 04

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

By Brandon Barnett | Jury Trial, Trial Advocacy

Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016 In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

Make a timely and specific objection;
Request and instruction to disregard if the objection is sustained; and
Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial. Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Jul 07

Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

By Brandon Barnett | DWI

In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Bonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

Jun 30

Defense of Third Party Defense of Others

Defense of Third Party Not Allowed in Fort Worth Domestic Violence Case

By Brandon Barnett | Domestic Violence

Defense of Third Party Defense of Others This week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of a third party” as a legal argument in his assault case, because it “was not material to, nor probative of, any fact that was of consequence to the determination of this action.”

Henley v. State (Tex. Crim. App. 2016)

Henley was Charged with Domestic Violence in Tarrant County and Offered a “Defense of Others” Argument at Trial

Mr. Henley was charged with misdemeanor assault causing bodily injury to a family member (domestic violence). Henley was alleged to have pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the concrete driveway.

At trial, Henley asserted a “defense of others” defense, which is an extension of the traditional self-defense argument. The rationale he provided for this defense was that he did not think his ex-wife was a fit parent because her new husband had sexually and possibly physically assaulted the children. The mother’s new husband was not present during the altercation and did not pose any immediate threat, but Henley tried to argue nonetheless that he was defending his children from being exposed to a physically and sexually abusive environment.

The trial judge did not allow Henley to present the defense of others claim and he was convicted. The 2nd District Court of Appeal (Fort Worth) reversed the trial court, holding that Henley should have been allowed to present his defense. The State appealed to the Court of Criminal Appeals.

What is the Standard to Assert Defense of a Third Party?

To claim defense of a third person, a defendant must reasonably believe his intervention was immediately necessary to protect the third person from the threat of force.

The question in this case was not, “is defense of a third person an effective defense when considered by the jury?” Rather the question was “should the defendant be allowed to bring that defense at all under these facts?”

A Divided CCA Holds that the Trial Judge Did Not Err in Denying Henley the Ability to Raise Defense of a Third Person

The slim majority said no,. Henley should not be able to bring this defense because his aim was not to offer material or probative evidence, but rather to introduce evidence of how bad of a mother. Henley’s ex-wife is, and perhaps try to finagle a jury nullification. The majority saw Henley’s attempted defense as nothing more than an attempt to circumvent the judicial and evidentiary process and try to make an emotional appeal to the jury rather than a factual one.

The dissenting judges (Keller, Hervey, and Newell) argued that the defense should have been allowed because anything thing that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be deemed relevant and therefore admissible. Further, the question of whether Henley’s defense claims were reasonable belonged to the jury not the judge. It was the jury who should decide if Henley, in fact, acted reasonably on that day in question.

What are the Implications of this Holding for the Defense of Third Person Claim in Texas?

This case demonstrates that Defense of a Third Person is not as easy as simply claiming it. There must be evidence to show that the defense is reasonable. The evidence must show that the “intervention was immediately necessary to protect the third person from the threat of force” or it could be disallowed by the trial judge. The valid defense of others is still viable; as viable as it ever was. It simply must fit the facts.

Jun 28

Movie Plot Defense Opens the Door to Evidence of Other Crimes

By Brandon Barnett | Drug Crimes

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Dabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant’s Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Jun 15

Satanic Cell Phone Images Admitted as Relevant Character Evidence

By Brandon Barnett | Sentencing

Second Court of Appeals Holds that Satanic Cell Phone Photos Were Relevant Character Evidence in Punishment Phase for Attempted Capital Murder Case

Pantoja v. State (2nd Court of Appeals – Fort Worth, 2016)

A Cocaine-Fueled Binge Leads to an Attack

During an alcohol and cocaine-fueled binge, nineteen-year-old Rigoberto Pantoja attacked a group of friends in Mansfield, Texas one evening in September of 2014. After watching the Floyd Mayweather fight, Pantoja began talking to himself. Eventually, he pulled a gun and fired two times, hitting Pantoja’s friend in the face. Pantoja put the gun to the head of a second friend, but when the gun would not fire, Pantoja pulled a knife, stabbing the friend three times. He also stabbed a third friend. All of the victims survived the injuries. Pantoja was arrested and charged with aggravated assault and attempted capital murder.

At trial, Pantoja pled guilty to the aggravated assault and attempted capital murder charges before a judge. Pantoja requested a jury for the punishment phase of his trial, asking that the jury grant him community supervision (probation). At the punishment phase, the State called twelve character witnesses; Pantoja’s defense counsel called four, including his father who was set to testify about Pantoja’s Catholic upbringing and religious way of life.

Just before the defense called Pantoja’s father to the stand, and out of the presence of the jury, the State indicated to the Court that it intended to cross-examine Pantoja’s father about satanic images found on Pantoja’s cell phone, confiscated the night he was arrested. The Judge told the State to proceed with calling witnesses and that “whenever you are ready to ask question [regarding the satanic photos], approach up here and then I’ll make a ruling at that time.” After that conversation, the jury returned to the courtroom.

Cross-Examination Regarding the Defendant’s Cell Phone Images

The defense called Pantoja’s father who testified to Pantoja’s good nature. He said that his son helped around the house and helped out with the family’s living expenses. Pantoja’s father also spoke of his son’s strong Catholic faith and upbringing. The defense admitted photos from the father of Pantoja’s first communion, photos of Pantoja’s bedroom with a Virgin of Guadalupe poster on the wall, and photos of Pantoja’s car depicting a rosary hanging from the rearview mirror. The State cross-examined Pantoja’s father, asking, “Were you aware that your son kept pictures of satanic worship on his cell phone?” The father responded, “no.”

The jury assessed Pantoja’s punishment at eighty years’ confinement for both offenses, denying Pantoja’s request for community supervision. Pantoja timely appealed to the Second Court of Appeals, arguing that the satanic photos shown to the jury were highly prejudicial, had no probative value whatsoever, did not establish a material fact that related to any element of his offenses, and ultimately were not relevant to his case and sentencing.

Did the Trial Court Err By Allowing the Satanic Images to Go Before the Jury?

The Second Court of Appeals had to determine whether the trial court should have stopped the State’s cross-examination of Pantoja’s father regarding the Satanic images found on Pantoja’s cell phone. Did the photos have relevance to the case under the Texas Rules of Evidence? If so, were the photos highly prejudicial to the jury?

The Texas Rules of Evidence

Relevancy

Article 37.07 of the Texas Code of Criminal Procedure states that, “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including…his character [and] an opinion regarding his character…” Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is relevant to a punishment determination if that evidence will assist the fact-finder in tailoring an appropriate sentence. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.]2000, pet. ref’d.

Community Supervision

When a defendant requests community supervision, a trial court may reasonably deem any character trait that pertains to the defendant’s suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).

Character Evidence and Opinion Testimony

When character evidence is admissible—as in a community supervision request during the punishment phase—such character traits may be proven by testimony in the form of an opinion. Tex. R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 349-51 (Tex. Crim. App. 2002). An opinion witness is generally to be asked “did you know” questions. Id. at 350.

Cross Examination of Character Witnesses

On cross-examination of a character witness, inquiry may be made about specific incidents of a person’s conduct, subject to the following limitations. Id. at 351.

The incident must be relevant to the character traits at issue. Burke v. State, 371 S.W.3d, 252, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d, untimely filed).
The alleged Bad Act must have a basis in fact. Id.
Before the questions are asked, the foundation for asking the question should be laid outside of the jury’s presence, so that the judge will have an opportunity to rule on them. Id.

The Second Court of Appeals Finds No Error

Here, the Court says that the father’s testimony about Pantoja’s strict Catholic upbringing and religious faith constituted “opinion” character testimony. Additionally, the Court says, his testimony was relevant under the Texas Rules of Evidence, pertinent to the request made for community supervision, as “a sentencer might rationally want to take into account testimony of his good character and that he had a stable home life…and that he possess an indicia of a religious upbringing.”

Further, this character testimony was provided by the defense. Because the defense called the father as a character witness, the State had the right to cross-examine the father “through did-you-know questions” about Pantoja’s character. “The State had the proper predicate for it’s ‘did you know’ question by establishing outside the presence of the jury the factual basis for the specific instances of Pantoja’s conduct (the satanic cell phone photos).” The Court overruled Pantoja’s appeal, and affirmed the trial court’s judgment.

Jun 02

When a Criminal Accomplice Exceeds the Scope of the Agreed Plan

By Brandon Barnett | Robbery

The Best Laid Plans of Mice and Men: What Happens When a Robbery Accomplice Goes Rogue?

Davis v. State (2nd COA, 2016)

Davis v. State is a case about two robberies— one a planned robbery of a convenience store, and the other of the customer inside the convenience store, a spur of the moment decision. What happens when accomplices to a well-planned robbery go “rogue” and commit additional crimes that are not part of the original plan? Who is on the hook for their actions?

The Robbery That Didn’t Go According to Plan

Desmond Davis and two accomplices planned to rob a convenience store at night. Around 9:30pm, Davis entered the store alone and chatted with a customer. Moments later, two accomplices entered the store, pointing loaded guns at the cashier and the customer. The accomplices decided to rob the customer first, despite Davis’s instructions not to do so, “we just [came] for the store.” Davis jumped over the cash register and took money from the cash drawer. The customer dropped his cash to the floor and ran to the store’s restroom, locking the door behind him. The gunmen fled with the cash from the store and from the customer. Once the coast was clear, the store employee called 911 and locked the doors. The entire robbery was captured on a security camera. The three robbers split all of the cash among themselves after the robbery.

Shortly after Davis’s arrest, police obtained a confession after the detective told Davis, more or less, that not only could his confession be used for or against him, but that it could be used for or against him at trial. During the interrogation, the detective asked Davis to “man up” and give his side of the story, admitting his own guilt. Davis eventually made a written statement to law enforcement, admitting to his role in planning and carrying out the robbery. The interrogation and confession were captured on video.

The Case Goes to Trial – Davis is Tried for the Original Planned Robbery and the Unplanned Actions of his Cohorts

At trial, the jury convicted Davis on two counts of aggravated robbery with a deadly weapon—one count for the convenience store and one count for the customer. Davis was assessed a punishment of 30 years (for one count) and 15 years (for the other count) and a $1,000.00 fine for each count.

On appeal, Davis argued that his instructions to the accomplices not to rob the customer defeated the theft element of that robbery and thus, the record is insufficient to show his participation in the aggravated robbery of the customer specifically. Further, Davis argues that his confession was obtained under duress, in violation of the Texas Code of Criminal Procedure.

The issue before the Second Court of Appeals was to determine whether, in addition to the robbery of the store, Davis also participated in the robbery of the customer, and, whether Davis’s written confession obtained by police violated section 38.22 of the Texas Code of Criminal Procedure.

The Law in Texas – Robbery and Confessions

Robbery is an assaultive offense, where the assaultive conduct is the essence of the crime, not the theft in and of itself. Ex Parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). In robbery prosecutions, the number of persons assaulted is at issue, not the number of thefts in one crime episode. Id.

Section 38.22 of the Texas Code of Criminal Procedure

When law enforcement securing a defendant’s written confession tells the defendant that the confession “could be used for or against him in court” or “for and against him in court” and that “they might go easy on him if he confessed,” the written confession becomes inadmissible because it violates section 38.22 of the Texas Code of Criminal Procedure. Sterling v. State, 800 S. W.2d, 513, 518-519 (Tex. Crim. App. 1990). Section 38.22 of the Code deals with admissibility of written confessions in court.

The Second Court of Appeals Affirms the Judgment of the Trial Court

Here, the robbers intended on stealing the money from the cash register when two of the gunmen pointed their weapons at an innocent customer and stole his money. Based on this alone, the Court says, the evidence is sufficient to support the jury’s determination “that [Davis] intended to steal the store’s money and that the [accomplices] threatened the customer while they were stealing money from the [store].” Further Davis and the accomplices shared all of the money stolen in that crime episode—there was no effort made to distribute the customer’s money to only the two accomplices. Davis participated in the store robbery. Even though he told his accomplices to not rob the customer, Davis still placed the customer in fear by waving firearms and by jumping over the counter to steal money out of the register.

Additionally, after the Court reviewed the interrogation tape, the Court “determined that the “officer told [Davis] that he had an opportunity to tell his side of the story and that he could be a man by admitting his guilt.” The officer never suggested to Davis that he would be helping his court case by admitting his guilt. The confession was, therefore, not obtained in violated of Section 38.22 of the Texas Code of Criminal Procedure.

The Court acknowledges that caselaw, such as James v. State, exists that holds that a “defendant who was merely present when his [accomplice] assaulted another was not guilty of robbery…because there was no evidence of a previous agreement to rob the [bystander],” such is not exactly the case here. James v. State, 161 S.W.2d 285, 286 (Tex. Crim. App. 1942). Davis saw the robbery of the customer taking place, and then decided to capitalize on the level of fear created to jump over the counter “and grab some money for himself.”