17th Annual Stuart Kinard Advanced DWI Seminar by TCDLA

17TH ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION Date Location Course Director Total CLE Hours

November 4-5, 2021 The Menger Hotel 204 Alamo Plaza, San Antonio, Texas Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter 13.5 Ethics: 1.0

Thursday, November 4, 2021 Time

CLE

Topic

Daily CLE Hours: 6.0

Ethics: 0

Speaker

8:00 am

Registration and Continental Breakfast

8:45 am

Opening Remarks

Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter

9:00 am

1.0

ALR

Larry Boyd

10:00 am

1.0

DWI 101/DWI Caselaw Update

Michael Gross

11:00 am 11:15 am

Break 1.0

12:15 pm

Collateral Consequences of DWI

Betty Blackwell

Lunch on Your Own

1:30 pm

1.0

Ethics

Stephanie Stevens

2:30 pm

1.0

DWI Voir Dire

Troy McKinney

3:30 pm 3:45 pm 4:45 pm

Break 1.0

Blood Discovery Process

George Scharmen

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

17TH ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION Date Location Course Director Total CLE Hours

November 4-5, 2021 The Menger Hotel 204 Alamo Plaza, San Antonio, Texas Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter 13.5 Ethics: 1.0

Friday, November 5, 2021 Time

CLE

Daily CLE Hours: 7.50 Topic

8:00 am

Registration and Continental Breakfast

8:10 am

Opening Remarks

Ethics: 1.0

Speaker

Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter

8:15 am

1.0

Cross-examination Reasonable Doubts for Lawyers on Blood

Dr. Jimmie Valentine

9:15 am

1.0

Cross-examination of the Arresting Officer/Demo 1 Lecture 1

Doug Wilder

10:15 am 10:30 am

2.0

11:30 am

Break Cross-examination of the Arresting Officer/Demo 2 and Lecture 2

Troy McKinney

Lunch on Your Own

12:45 pm

1.0

Cross-examination of the Forensic Scientist/ Demo and Lecture

Billy McNabb

1:45 pm

2.0

Cross-examination of the Technical Supervisor/ Demo and Lecture

Adams Kobs & Bobby Barrera

3:45 pm 4:00 pm 4:30 pm

Break .50

Course Director & Speaker Wrap Ups Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Table of Contents

-Speaker

Topic Complete Date of Seminar

Larry Boyd Michael Gross Betty Blackwell Stephanie Stevens Troy McKinney George Scharmen Dr. Jimmie Valentine Billy McNabb

ALR DWI 101/DWI Caselaw Update Collateral Consequences of DWI Ethics DWI Voir Dire Blood Discovery Process Cross-examination Reasonable Doubts for Lawyers on Blood Cross-examination of the Forensic Scientist/ Demo and Lecture

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: ALR Speaker:

Larry Boyd

4303 N Central Expy Dallas, TX 75205 (214) 691-5630 Phone (214) 696-0867 Fax lawrencegboyd@hotmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: DWI 101/DWI Caselaw Update Speaker:

Michael Gross

1524 N Alamo St San Antonio, TX 78215-1205 (210) 354-1919 Phone (210) 354-1920 Fax lawofcmg@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

DWI CASE LAW UPDATE

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

17th Annual Kinard Advanced DWI San Antonio, Texas November 4-5, 2021

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2011-2012 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2021 Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

Statues Update Effective 9-1-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. DWI deferred available for MB DWI after 9-1-19 . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Ignition interlock is now mandatory for DWI deferred adjudication . . . . . . . . . . . 1 C. Surcharge is now a fine upon conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 D. Nondisclosure for DWI deferred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 E. ODL supervision by pretrial services authorized . . . . . . . . . . . . . . . . . . . . . . . . . . 1 F. Ignition interlock required as condition of bond if DWI with child passenger. . . . 1

II.

ALR Update . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Littlepage and the DIC-24 statutory warning form for the hearing impaired . . . . . 2 B. Turcios and typographical errors and McNeely violations at ALR level . . . . . . . . 2 C. Jaroszewicz and speeding error preservation at an ALR hearing . . . . . . . . . . . . . . 3

III.

DWI Update . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Driving factors and reasonable suspicion to stop . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Leming and reasonable suspicion of DWI for weaving & FMSL. . . . . . . . 3 2. Reyes and reasonable suspicion for straddling two lanes . . . . . . . . . . . . . . 5 3. Cortez and touching the fog line is not a traffic violation . . . . . . . . . . . . . 5 4. Jones and cross white line and swerve within lane is reas susp stop . . . . . 6 5. Bernard and driving on lane divider is not reas susp intox . . . . . . . . . . . . 6 6. Pritchett and stopping in crosswalk/intersection is reas susp stop . . . . . . . 7 7. Colby and stopping in intersection for officer not reas susp stop . . . . . . . . 8 8. Gonzalez-Gonzalez and disregarding traffic control device is reas susp . . 8 9. Rodgers and road rage is prob cause to arrest. . . . . . . . . . . . . . . . . . . . . . . 9 10. Torrez and officer incorrectly thought headlight out is reas susp stop . . . . 9 11. Varley and one brake light out but two break lights working is reas susp 10 12. Speck and failure to signal in optional exit lane is reas susp stop. . . . . . . 10 13. Wood and cigarette tossed from car is reas susp stop for littering . . . . . . 11 14. Babel and no headlights on 30 minutes after sunset is reas susp . . . . . . . 11 15. Martinez and partially obscured license plate reas susp stop . . . . . . . . . . 12 16. Ellis and FBI/DPS database reliable for reas susp stop . . . . . . . . . . . . . . 12 17. Smith and police follow directive to stop car so no reas susp. . . . . . . . . . 13 18. Binkley and state vehicle insurance database not reliable for stop . . . . . . 14 19. Oringderff and 911 call sufficient to stop . . . . . . . . . . . . . . . . . . . . . . . . . 15 20. Tyler and 911 call sufficient to stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 B. Detention and arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Utah v. Strieff and outstanding arrest warrant’s affect on bad stop . . . . . 16 2. Jennings and 911 call insuff; officer box car in driveway is detention . . 17 3. Cook and 911 call/home suspicious place sufficient . . . . . . . . . . . . . . . . 18 4. Byram and community caretaking function shown. . . . . . . . . . . . . . . . . . 18 5. Dearmond and community caretaking function shown . . . . . . . . . . . . . . 19 6. Williams and challenging HGN results and blood test results . . . . . . . . . 19 7. Dansby and reas suspicion/PC, public intox, no warrant, corpus delicti . 20 iii

8. Evans and reas suspicion but no prob cause and duration of stop . . . . . . 21 9. Scott and probable cause to arrest D for traffic offenses . . . . . . . . . . . . . 22 10. Arrington and reas susp to detain b/c cumulative knowledge PO’s . . . . . 22 11. Villalobos and warrantless temporary detention in a suspicious place . . . 22 12. Cagle and 21-minute prolonged investigation is reasonable . . . . . . . . . . 24 13. Kuether and custody analysis re handcuffs . . . . . . . . . . . . . . . . . . . . . . . . 24 14. Koch and custody v. detention and Miranda . . . . . . . . . . . . . . . . . . . . . . 26 15. Ivey and not in custody during hospital statement . . . . . . . . . . . . . . . . . . 26 Reading the DIC-24 and observation periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1. Dorr and reading obsolete DIC-24 to defendant no affect on consent . . . 28 2. Serrano and 15-minute observation period. . . . . . . . . . . . . . . . . . . . . . . . 28 Blood draws without a warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. McGruder and 724.012(b)(3)(B) re warrantless blood draw unconst. . . . 29 2. Mitchell and “almost always” can draw blood from unconscious driver . 29 3. Ruiz and cannot draw blood from unconscious person; exigency TBD . . 30 4. Cole and warrantless blood draw proper b/c exigency . . . . . . . . . . . . . . . 30 5. Cosino and warrantless blood draw proper b/c exigency . . . . . . . . . . . . . 31 6. Couch and warrantless blood draw proper? Exigency TBD (FOF/COL) . 31 7. Weems and warrantless blood draw improper b/c no exigency. . . . . . . . . 32 8. McGuire and warrantless blood draw improper b/c no exigency . . . . . . . 33 9. Bonsignore and warrantless blood draw improper b/c no exigency . . . . . 34 10. Sanders and warrantless blood draw improper b/c no exigency. . . . . . . . 34 11. Garcia and warrantless blood draw improper FOF/COL; evid destroy . . 35 12. Bell and warrantless blood draw improper b/c no exigency or consent . . 36 13. Colura and warrantless blood draw improper b/c no consent . . . . . . . . . 37 14. Fears and warrantless blood draw improper; delay/anger/no exigency . . 38 15. Perez and warrantless blood draw improper; PO’s good faith insuff . . . . 38 16. Molden and warrantless blood draw improper; PO’s good faith insuff . . 39 17. Hill and warrantless blood draw improper; PO’s good faith insuff . . . . . 39 18. Swan and warrantless blood draw improper; PO’s good faith insuff . . . . 39 19. Roop and warrantless blood draw improper; PO’s good faith insuff . . . . 39 20. Kressin and officer incorrectly thought warrantless blood draw . . . . . . . 40 21. Martinez and blood seized/tested beyond scope hospital blood draw . . . 40 22. Hyland and warrant not required to retest blood. . . . . . . . . . . . . . . . . . . . 40 Blood draws with a warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1. Crider and blood draw warrant need not include both seize & test . . . . . 40 2. Davis and length of time to test after blood seized with warrant . . . . . . . 41 3. Arellano and blood warrant lacking legible magistrate’s signature . . . . . 41 4. Hodges and blood draw warrant void b/c unsworn affidavit . . . . . . . . . . 41 5. Fikes and blood draw if unreasonable risk of infection . . . . . . . . . . . . . . 42 Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 1. Sanchez and proof needed for TCCP 38.23(a) jury instruction . . . . . . . . 42 2. Olsen and proof needed for TCCP 38.23(a) jury instruction . . . . . . . . . . 43 3. Smith and failure to get ruling on Fourth Amendment issue . . . . . . . . . . 43 4. Huse and the state obtaining medical records for blood . . . . . . . . . . . . . . 44 5. Trigo and right of confrontation regarding intoxilyzer results . . . . . . . . . 45 6. Williams and right of confrontation regarding blood analyst . . . . . . . . . . 46

7. Gore and no right confrontation for blood analyst if only raw data used . 46 8. Diamond and no Brady viol failure reveal analyst’s error in other case. . 47 9. Rodgers and flawed felony DWI indictment . . . . . . . . . . . . . . . . . . . . . . 48 10. Oliva and prior DWI is not an element of DWI 2d. . . . . . . . . . . . . . . . . . 48 11. Meza and must prove 0.15 at time of analysis . . . . . . . . . . . . . . . . . . . . . 48 12. Ramjattansingh and 0.15 jury charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 13. Ashby and TFMPP admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 14. Matamoros and intoxication manslaughter and causation . . . . . . . . . . . . 51 15. Burg and must object to improper DL suspension to raise on appeal. . . . 52 16. Rodriguez-Cruz and reversible error to deny motion continuance . . . . . . 52 17. Bara and double jeopardy with two children in car . . . . . . . . . . . . . . . . . 52 18. Nelson and unanimity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 19. Couthren and deadly weapon finding disapproved. . . . . . . . . . . . . . . . . . 53 20. Moore and deadly weapon finding approved . . . . . . . . . . . . . . . . . . . . . . 53 21. Mills and deadly weapon finding approved . . . . . . . . . . . . . . . . . . . . . . . 54 22. Burnett and same transaction contextual and intox definition . . . . . . . . . 56 23. Navarro and acquittal for MA DWI not bar to retrial for MB DWI. . . . . 56 24. Clement and in-court HGN of D by officer; right vs self-incrimination. . 56 25. Strehl and lack of proof of prior DWI in felony DWI case. . . . . . . . . . . . 57 26. Crawford and asleep in veh and state refused stipulate to prior DWI . . . 57 27. Siddiq and technique of blood draw and recorded jail conversations. . . . 58 28. Haas and authenticity of prior DWI’s in enhanced DWI case . . . . . . . . . 58 29. Corley and retrograde-extrapolation evidence was reliable . . . . . . . . . . . 58 30. Bowman and IAC for failure get payroll records for impeachment . . . . . 60 31. Voda and speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 32. Taylor and corpus delecti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 33. Harrell and corpus delecti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 34. Cabral-Tapia and no proof PO followed NHTSA HGN standards . . . . . 62 35. Screws and probation conditions in the court’s charge. . . . . . . . . . . . . . . 62 Expunctions - Ferris and M.T.R. and K.T. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

conviction if 0.15 or more at time of analysis. If D produces tax return or recent wages statement or government agency proof of assistance and judge finds that D is indigent, judge shall waive all finds and costs under this section.

Statues Update Effective 9-1-19 A.

DWI deferred available for MB DWI after 9-1-19

Article 42A.102 of the Texas Code of Criminal Procedure (TCCP) has been amended effective 9-1-19 for offenses committed after 9-1-19 to allow a judge to grant deferred adjudication for MB DWI but not for DWI with child passenger, flying while intoxicated, operating amusement ride while intoxicated, intox assault, intox manslaughter, DWI while having a CDL or CDL permit, 0.15 or higher, or punishment may be increased under PC49.09. Article 49.09 of the TCCA has been amended effective 9-1-19 to state that a DWI deferred is treated like a conviction for enhancement purposes. B.

for

DWI

Tex. Gov’t Code § 411.0726 allows for a nondisclosure of a DWI/BWI deferred adjudication 2-years after completion of deferred and discharge/dismissal of case if: (1) the judge did not enter a finding that nondisclosure would not be in the best interest of justice; (2) no new offenses other than a traffic offense; (3) no prior offenses other than a traffic offense; and (4) the State does not present evidence that the offense included an accident involving another person including a passenger.

Ignition interlock (II) is now mandatory for DWI deferred adjudication

Article 42A.408 of the TCCP has been amended effective 9-1-19 to state that a judge who grants deferred adjudication for DWI shall require II on vehicle owned by D or vehicle most driven by D and prohibit D from driving vehicle without II. In indigent cases, judge may allow scheduling order for II payments or waiver of installation charge and 50% reduction of monthly monitoring fee. C.

Nondisclosure deferred

ODL supervision by pretrial services authorized

Tex. Trans. Code § 521.2462 allows a judge granting an ODL to order supervision by pretrial services to ensure compliance with the ODL requirements. F.

Surcharge is now a fine upon conviction

Ignition interlock (II) required as condition of bond if DWI with child passenger

Article 17.441(a) of the TCCP now requires II as a condition of bond if the DWI charge includes a child passenger.

Surcharges are gone as of 9-1-19 and, pursuant to Tex. Trans. Code § 709.001, a person finally convicted for DWI type offense shall pay a fine of: (1) $3K for first conviction within 36-month period; (2) $4500 for second or subsequent conviction within 36-month period; (3) $6K for first or subsequent 1

II.

ALR Update

Littlepage and the DIC-24 statutory warning form for the hearing impaired

on this conduct, officer concluded D was refusing to provide a breath specimen and confiscated his driver’s license. At the hearing, D emphasized the text of Section 724.015, which states that “the officer shall inform the person orally and in writing” of the statutory warnings before requesting the specimen. Because ASL is the equivalent of an oral communication for a deaf person, D argued officer failed to comply with Section 724.015. Court stated, however, that the law requires only that a driver “was requested to submit to the taking of a specimen” and “refused to submit to the taking of a specimen on request of the officer.” The ALJ could reasonably have inferred that D was able to read and understand written English and even to communicate responsively in writing. The ALJ had a reasonable basis to infer that D’s conduct reflected D understood the nature of the request being made and the statutory warnings and refused through inaction to comply. It was sufficient that D received and could read the written warnings, and D presented no evidence to dispute the reasonable inference that D understood warnings the officer twice provided for him and the additional explanation that the officer provided.

Tex. Dep’t of Pub. Safety v. Littlepage, No. 03-14-00194-CV (Tex. App. - Austin, July 8, 2016, no writ) (unpublished) - Officer at scene saw D communicating with others by texting in English on his phone. The officer decided to do the same. By texts with the officer, D admitted recently drinking a Blue Hurricane preceded by six beers. Officer also texted questions and instructions to D by writing in English on a notepad, including while administering the SFST’s. Officer structured several questions as yes-or-no choices in which D circled the correct answer. Other questions had elicited written answers from D. Officer admitted on cross that some of these answers were difficult to understand and had unusual grammatical structure, but officer attributed this at least in part to D’s intoxication. Officer claimed D had appeared to understand and capable of communicating in written English. D did not make any request for an ASL interpreter. Officer showed D DIC-24 form at least twice before transporting him to jail. Officer wrote D a note asking whether he would read the DIC-24 form, providing as before “yes” and “no” answers for him to circle and also wrote D a note explaining the statutory warnings in the form. D then became uncooperative, glanced over the form, but refusing to respond to the question posed. Instead, D then wrote he wanted a phone call and “something (un-legible) about a deaf law.” At jail, officer again provided D a copy of the DIC-24 form. D refused to read the form and further refused to provide an answer on a portion of the form inquiring whether he was refusing the breath-sample request. Based

Turcios and typographical errors and McNeely violations at ALR level

Tex. Dep’t of Pub. Safety v. Turcios, No. 13-14-00332-CV (Tex. App. - Corpus Christi, June 9, 2016, no writ) (unpublished) ALJ suspended D’s driver’s license finding, in part, that D’s vehicle had a “non-working from headlight” and D refused a breath test rather than a blood test. D appealed ALJ’s suspension order to county court claiming: (1) there was no evidence that his vehicle had a “non-working from headlight” as the ALJ stated; (2) there 2

was no evidence that D refused to provide a “breath” specimen as the ALJ stated; and (3) the ALJ’s decision violated McNeely. Court held that, regardless of a typographical error “from” headlight by ALJ, the officer’s report stated D was stopped for driving with a defective “front” headlight and D admitted at ALR hearing that a headlight was out. No prejudice from ALJ misstating in FOF that D refused a breath test rather than a blood test. No Fourth Amendment issue in an ALR hearing based on refusal to submit a blood test, because the mere suspension of a driver’s license does not implicate the driver’s expectation of privacy. The Court held that McNeely strongly suggests the Supreme Court did not intend to prohibit ALR hearings as a legal tool to enforce drunk driving laws. McNeely does not directly address whether the Fourth Amendment forbids the State to administratively suspend a driver’s license for refusing a blood draw, but the plurality opinion stated such an administrative suspension based upon refusing a blood draw is a constitutionally permissible “legal tool” to further the State’s interest in preventing drunk-driving. The county court erred by finding the ALJ’s suspension order violated McNeely. C.

to determine the actual speed.” Counsel also did not provide any rule of evidence or other authority to support the exclusion of this evidence until after both parties rested and during closing arguments. Raising the specific objections for the first time during closing argument is untimely and fails to preserve error. On appeal, D claimed evidence of vehicle’s speed clocked by radar was not admissible and that the non-testifying officer’s written legal conclusion that D was speeding, without more, also was inadmissible. D claimed an absence of Kelly evidence to show officer’s knowledge and experience of the radar unit, how it operated, whether he calibrated it or knew how to calibrate it, whether he tested it or knew how to test it, or how long he had been using radar to detect speed, if ever. D claimed that without the radar results, the officer’s observation and estimate of rate of speed was a mere hunch or suspicion. Court held that DPS is not required to show that D was actually speeding to justify the officer’s traffic stop, but only that the officer reasonably believed D was speeding.

Jaroszewicz and speeding error preservation at an ALR hearing

Jaroszewicz v. Tex. Dep’t of Pub. Safety, No. 03-15-00340-CV (Tex. App. Austin, August 26, 2016, no writ) (unpublished) - D’s attorney at ALR hearing did not provide any basis for the objection to the challenged evidence of speeding prior to its admission other than to identify the objectionable areas of the officer’s affidavit “wherein the officer states that he is – his visual ability to determine an excessive rate of speed and also wherein he states he used radar

III.

DWI Update

Driving factors and reasonable suspicion to stop

Leming and reasonable suspicion of DWI for weaving within lane & FMSL

Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) - Officer (and also on dash cam video) saw Jeep traveling unusually slowly, swerving, nearly strike the curb twice, and continued to drift back and forth within its lane. This corroborated tip from caller to dispatch. TCCA held that officer had reasonable suspicion to stop D’s vehicle to investigate the 3

offense of FMSL even if officer could not quite tell whether D had actually entered adjacent lane because officer saw D drive on the divider stripes and several times came close to entering the adjacent lane. Under Tex. Transp. Code Ann. § 545.060, it is an offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe. The TCCA held it need not decide if driving on the divider stripes constitute a failure to stay “entirely within” a designated lane because, “for a peace officer to stop a motorist to investigate a traffic infraction, as is the case with any investigative stop, ‘proof of the actual commission of the offense is not a requisite.’” The officer had an objectively reasonable basis to suspect D was intoxicated because a partially-identified informant saw vehicle swerving from side to side and the officer corroborated the observation. The question is whether officer had an objectively reasonable basis to suspect driver of the Jeep to be intoxicated. The Supreme Court stated that observation of “dangerous behaviors” such as weaving back and forth across the roadway and crossing the center line “would justify a traffic stop on suspicion of drunk driving.” Navarette v. California, 134 S.Ct. 1683 (2014). Even though such behavior “might also be explained by, for example, a driver responding to an unruly child or other distraction[,]” the Supreme Court has “consistently recognized that reasonable suspicion need not rule out the possibility of innocent conduct.” Id.; see Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) (“[T]he ‘as consistent with innocent activity as with criminal activity’ construct is no longer a viable test for determining reasonable suspicion.”). “It is, after all, only an ‘investigative’ detention. So long as the intrusion does not exceed the

legitimate scope of such a detention and evolve into the greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will tolerate a certain degree of police proaction.” Derichsweiler, 348 S.W.3d at 916. “Reasonable suspicion depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Under that commonsense approach, we can appropriately recognize certain driving behaviors as sound indicia of drunk driving.” Navarette. TCCA held that officer in this case “had an objectively reasonable basis to justify at least a temporary detention to investigate the cause of Appellant’s unusual driving, even if Appellant’s ‘erratic driving’ (as the trial court aptly characterized it) might ultimately have proven to derive from some other, innocent cause.” “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Jaganathan v. State, 479 S.W.3d 244 (Tex. Crim. App. 2015) (quoting United States v. Arvizu, 534 U.S. 266 (2002)). “The possibility of an innocent explanation does not deprive the [detaining] officer of the capacity to entertain reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal[.]” Woods, supra. Even had officer’s investigative detention of D “ultimately failed to uncover signs of inebriation, the stop would nevertheless have served the salubrious function to alert Appellant, if he did not already know, that his driving was erratic enough – whatever the cause – to raise suspicion of drunk driving, alarm fellow motorists, and potentially endanger himself and others.”

analysis would end here. However, because Leming is a plurality opinion, it is not binding authority.” “We are faced, then, with the following situation concerning the central issue in this appeal: (1) the bulk of our prior opinions on the issue are not binding precedent because they are unpublished; (2) our one published opinion on the subject lacks independent analysis of the issue; and (3) the plurality opinion in Leming (the only case from the Texas Court of Criminal Appeals addressing the issue) is not binding precedent and has generated uncertainty among the courts of appeals [citations omitted].” The COA conducted an independent analysis and concluded that Officers saw D straddling two lanes of the roadway and “not choosing a lane for a good amount of distance.” This testimony is sufficient to establish reasonable suspicion that D violated Section 545.060(a)(1) and therefore sufficient to support the trial court’s denial of D’s motion to suppress.

Reyes and reasonable suspicion for straddling two lanes

Reyes v. State, No. 08-18-00145-CR (Tex. App. - El Paso, June 18, 2020, no pet.) The only basis offered by the State for the officers’ stop of D’s vehicle was that the officers had a reasonable suspicion that D violated Section 545.060 of the Texas Transportation Code. That section provides, in pertinent part: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. Road on which D driving was divided into three clearly marked lanes for traffic, and D straddling the line between two lanes. The question here is whether, having shown a violation of Section 545.060(a)(1) – failure to maintain a single lane – the State was also required to show a violation of Section 545.060(a)(2) – D’s movement from a single lane was unsafe. D argued Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet ref’d), that “a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely.” Id. The State argued the plurality case of Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) (plurality op.). “That plurality examined the reasoning of the Hernandez court, expressly rejected its interpretation of Section 545.060, and held instead that ‘it is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.’” Id. “Ordinarily, a holding of the Texas Court of Criminal Appeals would be dispositive, and our

Cortez and touching the fog line is not a traffic violation

Cortez v. State, 543 S.W.3d 198 (Tex. Crim. App. 2018) - Despite a DPS Trooper’s testimony that the D’s van purportedly touched the white painted “fog line” separating the roadway from the shoulder, the Court of Appeals was justified in affirming the trial court’s determination that the Trooper was not objectively reasonable in his belief that a violation of the law had been committed. It is not clear that the van even touched the fog line. “‘Driving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.’ Even a driver who is sober, alert, and careful may occasionally drift within their lane only because the roadway surface is not 5

perfectly smooth.” A traffic violation occurs if a car drives on an improved shoulder. An officer has reasonable suspicion to stop a car that drives on an improved shoulder if such driving was not necessary to achieve one of the seven approved purposes for so driving or such driving was unsafe. A car does not “drive on an improved shoulder” if it does not cross over the fog line onto the shoulder. “[M]omentarily touching the fog line does not constitute driving on the improved shoulder.” The statute’s definition of “shoulder” does not include the term “fog line” or mention the line separating the shoulder from the roadway. The TCCA refused to interpret 545.058(a) as saying touching the fog line constitutes driving on the improved shoulder. “Criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.” The TCCA stated it has “a duty to narrowly construe statutes to avoid a constitutional violation.” 545.058(a)(3) allows a driver to drive on an improved shoulder “to decelerate before making a right turn.” D clearly intended to exit the highway and turn right, so D “was statutorily permitted to drive on the improved shoulder for that brief period of time.” 4.

officer reasonable suspicion that D was intoxicated, justifying the stop. “The possibility of an innocent explanation for unusual driving behavior does not deprive an officer from having reasonable suspicion to investigate the possibility of criminal conduct, such as intoxicated driving.” See Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). “Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.” Id. Officer had reasonable suspicion that D was intoxicated or impaired, justifying a temporary investigative detention. See id. at 564 (holding that the officer had reasonable suspicion to investigate potential intoxication when the vehicle drifted back and forth within its lane below the posted speed limit; agreeing with the trial court's characterization of the driving as "erratic"); Miller v. State, 418 S.W.3d 692 (Tex. App. Houston [14th Dist.] 2013, pet. ref’d) (officer had reasonable suspicion to investigate potential intoxication when the vehicle “straddled” the line dividing two lanes for a few seconds); Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007) (officers had reasonable suspicion when the defendant’s car weaved “in and out of its lane several times, over a short distance, late at night”).

Jones and cross white line and swerve within lane reas susp to stop

Jones v. State, No. 14-15-00612-CR (Tex. App. - Houston [14th Dist.], November 22, 2016, no pet.) (unpublished) - Officer saw (as did dash cam) D’s car weaving erratically at 2:35 a.m. and testified that he normally encounters intoxicated drivers after midnight. Officer saw D’s car swerve within its lane and cross the white line, so officer stopped D and started DWI investigation. The erratic driving made him concerned that the driver was intoxicated or otherwise impaired. This evidence was sufficient to give

Bernard and driving on lane divider is not reas susp intoxication

State v. Bernard, 512 S.W.3d 351 (Tex. Crim. App. 2017) - At 2:30 a.m., officer saw D’s car swerving from lane to lane and going into center lane. Officer did traffic stop and D arrested without a warrant for DWI. The officer then obtained search warrant for a blood draw. D claimed the stop and subsequent arrest were without a warrant and without probable cause. The trial court granted motion suppress with findings that: (1) officer stopped D without reasonable suspicion of 6

DWI; and (2) D was not driving in unsafe manner and there was no reasonable suspicion of a traffic offense at the time of stop. TEX. TRANSP. CODE § 545.060(a) sets forth how a driver must drive on a roadway with traffic lanes. The State appealed and claimed two arguments in support of the traffic stop: (1) there was reasonable suspicion that D violated Transportation Code Section 545.060(a); and (2) there was reasonable suspicion that D was DWI. The court of appeals addressed only the first of these arguments and held that the traffic stop was not supported by reasonable suspicion that appellee had violated Section 545.060(a) of the Transportation Code. The court further held that because the stop was illegal, evidence obtained in the illegal detention could not provide the probable cause for the search warrant for the blood draw. State claimed court of appeals erred in failing to address the State’s alternative argument that the stop was justified by reasonable suspicion that D was DWI. TCCA agreed. “If the stop was supported by reasonable suspicion that appellee was driving while intoxicated, as the State contends, the disposition of the case may change.” Remanded to address the State’s argument that the traffic stop was supported by reasonable suspicion that D was DWI. TCCA refused ground (1) of the State’s PDR with prejudice. State v. Bernard, 545 S.W.3d 700 (Tex. App. - Houston [14th Dist.] 2018, no pet.) - The trial court did not err by granting the defendant’s motion to suppress because the State failed to offer facts characterizing the defendant’s driving as erratic or unsafe such that the facts would support a reasonable suspicion of intoxication. Officer saw vehicle driven by D approximately a quarter mile away at 2:30 a.m. and claimed D was “swerving from lane to lane and even going into the center lane.” Officer activated emergency lights and pulled the vehicle over

“to check the welfare of the driver.” D not speeding, all equipment was functioning properly on vehicle, registration and insurance were valid, and D stopped vehicle normally when pulled over. D’s driving did not interfere with any other vehicles and there was nothing unsafe about his driving. Video surveillance in patrol car recorded D’s driving for two minutes prior to officer activating emergency lights. Video showed D left his lane by a few inches only twice, which is not weaving. D did not swerve across several lanes of traffic or engage in erratic or unsafe driving or any other unusual behavior. There was no aggressive driving and the location of the stop was not near a bar district where numerous DWI arrests had been made. The State failed to offer facts characterizing D’s driving as erratic or unsafe such that the facts would support a reasonable suspicion of intoxication. 6.

Pritchett and stopping in crosswalk/intersection is reas susp

Pritchett v. State, No. 12-14-00298-CR (Tex. App. - Tyler, April 6, 2016, pet. ref’d) (unpublished) - Officer saw D’s car stop in the intersection. A driver approaching an intersection with a stop sign must stop before entering the crosswalk or at the stop line. Tex. Transp. Code Ann. § 544.010(a), (c). If the intersection has no crosswalk or stop line, the driver must stop at the place nearest the intersecting roadway where the driver has a view of approaching traffic. Id. Officer testified D’s bumper was over a manhole cover in the intersection when D stopped. Evidence at hearing showed manhole cover well into the cross-street. An officer may stop and detain a motorist who commits a traffic violation within the officer’s view. Whren v. United States, 517 U.S. 806 (1996); Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992). “In addition, an officer may 7

conduct a temporary detention if the officer has reasonable suspicion to believe that a person is violating the law.” See Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). “Reasonable suspicion is dependent upon both the content of the information possessed by the police and its degree of reliability.” See Alabama v. White, 496 U.S. 325 (1990); Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000). The question of whether D properly stopped at the intersection can be resolved by an assessment of whether officer’s testimony was credible. Trial judge’s FOF stated D committed a traffic violation which is reasonable in light of the evidence before it. No abuse discretion in concluding stop was legal. 7.

‘specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.’” Id. “The standard requires only ‘some minimal level of objective justification’ for the stop.” Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). An operator of a motor vehicle commits an offense if he stops his vehicle in an intersection. Tex. Transp. Code § 545.302(a)(3). The Transportation Code permits drivers to stop in an intersection under certain circumstances, including when necessary to avoid “conflict with other traffic.” Tex. Transp. Code § 545.302(f). “[B]ecause ‘the statute provides for circumstances in which it is not against the law to stop in an intersection, an officer should consider whether these circumstances apply when evaluating whether there is reasonable suspicion to believe’ that the driver violated the statute.” Cortez, supra. D’s stopping inside the intersection was an attempt to yield to officer’s patrol vehicle, which officer should have realized was permitted under the Transportation Code to avoid “conflict with other traffic,” see Tex. Transp. Code § 545.302(f). “Because this was the State’s only basis for the traffic stop, the trial court did not err in concluding that the State failed to satisfy its burden that [officer] had reasonable suspicion to initiate the traffic stop . . .”

Colby and stopping in intersection for officer not reas susp stop

State v. Colby, 604 S.W.3d 232 (Tex. App. - Austin 2020, no pet.) - A video recording of the stop, taken from patrol-car dash camera, shows officer’s vehicle approach the intersection and come to a stop beyond the stop sign, in the intersection. The video then shows D’s vehicle approach the intersection from cross street and come to a stop in the intersection at a T with patrol car, back up slowly, stop again, flash its lights, and then proceed through the intersection. Finally, the video shows officer turn left behind D’s vehicle and initiate a traffic stop. “When a police officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing.” State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018). “An officer may make a warrantless traffic stop if the ‘reasonable suspicion’ standard is satisfied.” Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015). “Reasonable suspicion exists if the officer has

Gonzalez-Gonzalez and disregarding traffic control device is reas susp

Gonzalez-Gonzalez v. Tex. Dep’t of Pub. Safety, No. 04-15-00611-CV (Tex. App. - San Antonio, May 18, 2016, no writ) (unpublished) - Officer saw D traveling westbound in left lane then enter eastbound left-turn only lane and execute a U-turn into 8

eastbound traffic. Making a U-turn in a lane marked for left turns by vehicles traveling in the opposite direction violates Tex. Transp. Code Ann. § 544.004 because the lane marking was a traffic control device under Tex. Transp. Code Ann. § 541.304. The officer had reasonable suspicion to stop D. At an ALR hearing, DPS is not required to prove the driver actually committed a traffic violation, but DPS did so in this case. 9.

App. - Fort Worth 2016, pet. ref’d) - Officer on patrol saw D’s car approximately one hundred yards away. Officer saw that one of the headlights on D’s car was not working. Officer stopped D’s car to investigate an apparent traffic violation. Officer later arrested D for DWI. After D arrested and still at the scene of the traffic stop, D asked to see the allegedly malfunctioning headlight. Another officer took D to look at headlights and saw that both of them working properly. Another officer also then saw that both headlights were working correctly. Trial judge granted motion suppress because this error resulted in lack of reasonable suspicion for the traffic stop. Court held that an officer’s reasonable suspicion may be validly based on articulable facts that are ultimately shown to be inaccurate or false. See Williams v. State, 621 S.W.2d 613 (Tex. Crim. App. [Panel Op.] 1981) (“That the automobile was not a stolen automobile is immaterial since the officers at the time of the appellant’s arrest and search and the search and inventory of the automobile had probable cause to believe the automobile was stolen.”); Kelly v. State, 721 S.W.2d 586 (Tex. App. - Houston [1st Dist.] 1986, no pet.); see also Illinois v. Wardlow, 528 U.S. 119 (2000) (explaining that the reasonable suspicion standard “accepts the risk that officers may stop innocent people”). “Thus, as the Supreme Court has explained, an officer ‘might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment.’” Heien v. North Carolina, 135 S. Ct. 530 (2014); see Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (“[A] mistake about the facts, if reasonable, will not vitiate an officer’s actions in hindsight so long as his

Rodgers and road rage is probable cause to arrest

Rodgers v. State, 500 S.W.3d 682 (Tex. App. - Fort Worth 2016, no pet.) Felony DWI case. Officer saw D from his car yelling obscenities at the occupant or occupants of the car beside him. A peace officer may make a warrantless arrest for any offense committed in his presence or within his view. A person commits the offense of disorderly conduct when that person “uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace; . . . abuses or threatens a person in a public place in an obviously offensive manner; . . . [or] makes unreasonable noise in a public place.” The undisputed evidence revealed that officer saw D commit a crime before detaining him, so the officer not only had reasonable suspicion to detain D but also had probable cause to arrest D. Because officer had probable cause to arrest D before he ever detained him, the evidence obtained as a result of the detention was not the fruit of an unlawful detention. Trial court did not err by denying motion to suppress. 10.

Torrez and officer incorrectly thought headlight out is reas susp State v. Torrez, 490 S.W.3d 279 (Tex. 9

actions were lawful under the facts as he reasonably, albeit mistakenly, perceived them to be.”). Trial judge did not doubt officer’s credibility regarding honestly thinking the headlight was out. Valid stop. 11.

brake lights are required under the federal equipment standards that the Texas Legislature adopted in another statute – section 547.3215 of the transportation code. Section 547.3215(1) requires compliance with “the current federal standards in 49 C.F.R. Section 571.108.” Id. Section 571.108 of Title 49 of the Code of Federal Regulations requires two brake lights on the rear of the vehicle and one high-mounted brake light (or two high-mounted brake lights under specified circumstances). 49 C.F.R. § 571.108 (2016). A violation of section 547.3215 provides reasonable suspicion. Because the State did not rely on section 547.3215 at trial, it may not rely on it now. The State also relied on Heien v. North Carolina, 135 S.Ct. 530 (2014). Heien is indistinguishable. Like Heien, officer was mistaken in his construction of the statute. If anything, officer was in a more reasonable position that the officer in Heien. In Heien, the statute had not previously been construed by the appellate courts. Here, the trial court acknowledged officer’s construction was reasonable when it stated that the statute was unclear and that “the rear of the vehicle” could mean the rear of the cab or the rear of the bed. Additionally, there was some appellate court authority, although in dicta, for the proposition that section 547.323 required two rear brake lights. The officer’s erroneous belief that two working brake lights were required on the rear of the vehicle was reasonable, therefore there was no violation of the Fourth Amendment.

Varley and one brake light out but two break lights working is reas susp

State v. Varley, 501 S.W.3d 273 (Tex. App. - Fort Worth 2016, pet. ref’d) - Officer saw D tap his brakes and back passenger brake light did not illuminate. Officer testified vehicles required to have at least two brake lights on the rear of the vehicle, so he concluded that he saw a traffic offense. Officer waited until D stopped a second time to confirm a light violation. Officer saw vehicle weave back and forth from side to side while remaining within its lane. Officer agreed that weaving within the lane would not necessarily be enough to pull someone over, but because he had already observed the brake light violation, he decided to pull over D. When Appellee braked to pull over and stop, Officer Gilbert said he confirmed the brake light was out. Officer said he did not consider the brake light in the center of the rear cab window because it was not affixed to the rear of the vehicle. Officer testified he had reasonable suspicion that Appellee had committed an offense. Court held that officer did not have reasonable suspicion that D committed a traffic violation under Tex. Transp. Code Ann. § 547.323(a), (c), because that section required two working brake lights and D had two working brake lights, one on the rear and one on the back of his pick-up truck’s cab. Section 547.323(c) required one brake light on the rear of the vehicle, which D had. The State argued that officer had reasonable suspicion because, although never mentioned at the suppression hearing, all three

12.

Speck and failure to signal in optional exit lane is reas susp

Speck v. State, 564 S.W.3d 497 (Tex. App. - Houston [14th Dist.] 2018, no pet.) - If a person is driving in a lane that is not an “Exit Only” lane, but the lane connects with an optional exit ramp, he must signal to 10

State v. Wood, 575 S.W.3d 929 (Tex. App. - Austin 2019, no pet.) - PO saw lit cigarette tossed from D’s car land on road but no fire resulted. PO had reasonable suspicion to believe that D committed offense of littering pursuant to § 365.012(a) Health & Safety Code b/c if item listed in § 365.012(a-1) was improperly discarded but did not result in a fire being ignited, the act could still be punished under § 365.012(a) “disposal of litter or other solid waste” on road. Trial judge abused discretion by granting motion to suppress.

indicate his intention to take the exit. D failed to so signal, so trial court correctly denied the motion to suppress. Tex. Transp. Code § 545.104(a) requires a driver to signal “to indicate an intention to turn, change lanes, or start from a parked position.” The phrase “change lanes” is not defined. “In the absence of a statutory definition, we give the words in this phrase their plain meaning.” “‘Change,’ in this context, means ‘to make a shift from one to another.’” Webster’s Ninth New Collegiate Dictionary 225 (9th ed. 1991). “‘Lane’ means ‘a strip of roadway for a single line of vehicles.’” Id. at 672. Therefore, “the common understanding of to change lanes is to make a shift from one strip of roadway to another.” D was “driving in the outermost lane of the highway until he exited without signaling.” This outermost lane did not require an exit. The D “could have continued driving on the direct course of the highway, but instead, he shifted to the exit ramp, which was a separate strip of roadway.” Therefore, the D “changed lanes because he made a shift from one strip of roadway to another. Due to this lane change, a signal was required.” The D contended that “the act of exiting a freeway or highway can be a foreseeable merge into the same lane and should not be considered as lane change,” as in Mahaffey. “In Mahaffey, two separate roadways converged into one, whereas here, a single roadway diverged into two (a continuation of the direct course of the highway, and a separate exit away from the highway).” Here, 545.104(a) required the D “to signal his exit from the highway.” The D did not signal his exit, so the officer correctly initiated a traffic stop, and the trial court properly denied the suppression motion. 13.

14.

Babel and no headlights on 30 minutes after sunset is reas susp

Babel v. State, 572 S.W.3d 851 (Tex. App. - Houston [14th Dist] 2019, no pet.) Sunset occurred at 7:37 p.m., and PO arrested D around 8:00 p.m. Almost all the cars on road had headlights illuminated. The street lamps along the roadway were illuminated. Businesses located on the roadway were illuminated by private light poles. Although it was clear, the sky was not brightly lit. D claimed arrest occurred 7 minutes before law mandated D turn on headlights, and the stop occurred even earlier. Thus, D claims stop was illegal b/c occurred before the time necessary for displaying headlights. State claims PO reasonably believed it was nighttime thus justifying the stop. Court held PO who stopped D had objectively reasonable suspicion of criminal activity for D’s failure to display headlights, in violation of Tex. Transp. Code Ann. § 547.302, despite PO being mistaken as to the 30-minute time frame. “The Fourth Amendment tolerates only reasonable mistakes, and those mistakes – whether of fact or of law – must be objectively reasonable.” Heien v. North Carolina, 135 S.Ct. 530, 539; Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 2012).

Wood and cigarette tossed from car is reas susp stop for littering

15.

Code Ann. § 504.945 and therefore the officer’s stop of the car was justified where the evidence showed that the frame obscured more than half of the letters in the state’s name on the plate. Facts of this case also supported trial court’s conclusion that it was reasonable for officer to continue to investigate for entire period before D’s arrest where it showed that D’s car had been stopped eight days earlier and the officer learned that D was currently involved in a case that involved trafficking in another state.

Martinez and partially obscured license plate is reas susp to stop and duration of detention

Martinez v. State, 500 S.W.3d 456 (Tex. App. - Beaumont 2016, pet. ref’d) Officer stopped D’s car to investigate suspicion that car had obscured rear license plate in violation of Tex. Transp. Code Ann. § 504.945 (pertaining to offenses involving wrong, fictitious, altered, or obscured license plates). After stopping the car, officer checked out-of-state plate through a database available to officers and learned that eight days before, another officer stopped the same car but unknown if same driver. Officer said D seemed nervous. Officer stated D’s story about going to Houston to visit children was inconsistent with the car previously stopped in Liberty County just eight days earlier. To investigate his suspicions about Martinez and the use of the car, the officer indicated that he used the information from Martinez's license to run a background check. Officer learned that D had active case in Chicago being handled by DEA. Officer then suspected D might be using the car to transport narcotics or money. Officer then called agent on Chicago case. The DEA agent told officer that the DEA believed DTO had sent someone to pick up a large amount of cocaine and that D might be that person. Officer asked for consent to search and D did not hesitate when he consented to the requested search. Officer found money and charged D with money laundering. D claimed illegal stop. Trial judge denied motion and found the frame around the plate interfered with a person’s ability to read the name of the state as it appeared on the plate. Court held that trial court did not abuse its discretion by finding that the officer had an objectively reasonable basis to believe that license plate frame obscured the plate to such a degree that it violated Tex. Transp.

16.

Ellis and FBI/DPS database reliable for reas susp to stop

Ellis v. State, 535 S.W.3d 209 (Tex. App. - Fort Worth 2017, pet. ref’d) - The officer had reasonable suspicion for the stop because officer’s knowledge sufficient to establish the reliability of the database maintained by the FBI and DPS. Drivers in Texas must maintain proof of financial responsibility. Tex. Transp. Code Ann. § 601.051. Operating a vehicle without financial responsibility is a misdemeanor punished by a fine under § 601.191. In Swadley v. State, No. 02-15-00085-CR (Tex. App. - Fort Worth Dec. 15, 2016, pet. ref’d), the court held that cases involving stops based on an officer’s database-derived suspicion that the driver may be committing this misdemeanor fall into two categories: (1) no reasonable suspicion if evidence was not developed regarding the ambiguous answer “unconfirmed” meaning or reliability; and (2) reasonable suspicion existed if officer, through experience or training, had additional information about what the ambiguous answer from the database meant and some idea regarding the data’s reliability. Id. In this case, officer had experience with “unconfirmed” and had a great deal of experience with the database – he had used it “[t]ens of thousands” of times – “enough experience to know that except for ‘a 12

handful’ of the ‘[h]undreds, if not thousands’ of times he had received an ‘unconfirmed’ return from the database, the return meant that the vehicle in question was not currently insured.” The officer therefore had sufficient specific, articulable facts upon which to base his inference that D’s Jeep was uninsured. The court stated, however, “that it would be helpful to have objective information about the database – how it worked, the timeliness of the information placed in it, and the error rate, for example – and essential if we were reviewing a conviction based on information yielded from the database rather than whether a police officer with a great deal of experience using the database had reasonable suspicion to stop a motorist based on a return of ‘unconfirmed’ from that database. See id. However, in this case and under these limited and specific facts, we uphold the trial court’s implicit finding that Officer Chaney’s knowledge was sufficient to establish the database’s reliability for the purposes of establishing reasonable suspicion. We consequently hold that under these narrow facts, the trial court did not err by concluding that Officer Chaney had reasonable suspicion for the stop or by denying Appellant's motion to suppress.” 17.

S.W.3d 563, 569-70 (Tex. Crim. App. 2013). “A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts.” Peucker v. State, 489 S.W.3d 592, 600 (Tex. App. - Texarkana 2016, pet. ref’d), citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). "In Terry, the Court adopted a two-part examination to determine the reasonableness of an investigative detention.” Id., citing Terry, 392 U.S. at 22. “The first part of the analysis is to determine whether the officer’s action at its inception was reasonable.” Id., citing Terry, 392 U.S. at 16-17. An “officer must have specific, articulable facts that, when combined with rational inferences therefrom, lead him to reasonably conclude that a particular person actually is, has been, or soon will be, engaged in criminal activity.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013), citing Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007)). “This standard is objective, thus there need be only an objective basis for the stop; the subjective intent of the officer is irrelevant.” Id., citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). “The detaining officer need not personally be aware of every fact that objectively supports a reasonable suspicion to detain; the cumulative information known to the cooperating officers at the time of the stop is to be considered in making the reasonablesuspicion determination.” Id. “A 911 police dispatcher is ordinarily regarded as such a cooperating officer for purposes of making this determination.” Id. “[A]lthough the information provided need not lead to the conclusion that an identifiable penal-code offense has occurred, the information must still be sufficiently detailed and reliable to support the reasonable suspicion that criminal activity is about to occur.” Martinez v. State, 348 S.W.3d 919,

Smith and police follow directive to stop car so no reas susp

State v. Smith, 555 S.W.3d 760 (Tex. App. - Texarkana 2018, no pet.) Because the evidence at the suppression hearing showed that no traffic violation was reported and the police merely followed the directive to stop a silver Mercedes, there was an absence of clear and convincing proof satisfying the State’s burden to justify its warrantless search, and the trial court did not abuse its discretion in suppressing the evidence from the search. “A detention is either good or bad at the moment it starts.” State v. Duran, 396 13

926 (Tex. Crim. App. 2011). “[A]ctions in a series may each seem innocent enough in isolation. If, however, when examined in the context of the totality of the circumstances, they reasonably suggest recent or imminent criminal conduct, an investigative detention is justified.” Arguellez, 409 S.W.3d at 663, citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular noncriminal acts.” Arguellez, 409 S.W.3d at 663 (quoting Derichsweiler, 348 S.W.3d at 914). At a minimum, however, “[t]he facts must show that an unusual activity occurred” and that “the unusual activity is related to a crime.” Martinez, 348 S.W.3d at 925. “The reasonable suspicion determination is made by considering the totality of the circumstances.” Arguellez, 409 S.W.3d at 663 (quoting Garcia, 43 S.W.3d at 530). In this case: (1) D “banged” on the door of Barnett’s home at 8:18 p.m.; (2) Barnett refused entry to D; (3) Barnett was not threatened by D; (4) D left the home driving a silver Mercedes pickup, and (5) Barnett called 911. Unknown how long or loud was the banging or whether police thought this activity was suspicious. It was also unknown how Barnett knew D. No traffic violation reported, and the reason for the stop was Barnett’s report that the person banging on door left in silver Mercedes pickup. At suppression hearing, officers did not claim that it was reasonable for arresting officer to believe, prior to the stop, that criminal activity was afoot. Officers stated that they merely followed the directive to stop a silver Mercedes. “The ultimate question is whether the officer was in possession of specific, articulable facts that were sufficient to provide a basis for a finding of reasonable suspicion to stop appellant’s vehicle.” Id. Court held there was an absence of clear and convincing proof

satisfying the State’s burden to justify a warrantless search, so no abuse of discretion in finding the officers failed to develop reasonable suspicion to believe D had engaged in criminal activity or was about to do so. There was no evidence of: (1) the nature of Barnett and D’s relationship; (2) D had threatened Barnett; or (3) D would return to Barnett’s home; so there “was no indication of crime being afoot.” Arguellez, 409 S.W.3d at 664. 18.

Binkley and state vehicle insurance database not reliable for stop

Binkley v. State, 541 S.W.3d 923 (Tex. App. - Fort Worth 2018, no pet.) - The evidence indicated that the state vehicle insurance database was unreliable so arresting officer did not have reasonable suspicion to support the stop. In Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex. App. - Amarillo 2010, pet. ref’d), the database returned “unavailable,” “not available,” or “undocumented” regarding liability insurance coverage when officers entered the information for Gonzalez-Gilando’s vehicle. The officer testified that the return led him to believe that the vehicle did not have insurance coverage, but he did not explain why. Id. at 896-97. On the other hand, officer testified that the return could have meant either that the vehicle was insured or that it was not insured. Id. at 897 n.2. The court held that the officer’s inference was not reasonable and that he lacked reasonable suspicion for the stop. In this case, however, the deputy’s testimony indicated “a weekly error rate of 33% and potentially up to 100% in his experience with the database” and the database coordinator was unable to explain this error rate. That evidence supports the trial court’s implied finding that the database was not reliable. The undisputed evidence shows that Deputy Kristufek had no basis for the stop 14

other than the return from the database. The deputy therefore did not have reasonable suspicion to support the stop. 19.

that the person detained is, has been, or soon will be engaged in criminal activity. This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.” Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). “It has been widely recognized that the reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her.” Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005). “A law enforcement officer may consider information from a private citizen that he or she witnessed a crime, but the officer should also ‘have some indicia that the citizen is worthy of belief . . . and his information [is] reliable before acting on a report.’” Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988). “Unsolicited information regarding a crime in progress provided by a citizen who has no relationship with the police, provides detailed information, and makes himself accountable by providing contact information is sufficiently reliable to warrant an officer to reasonably conclude that a temporary detention is justified.” Martinez v. State, 261 S.W.3d 773 (Tex. App. - Amarillo 2008, pet. ref’d). ‘[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, ‘the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists,’” and “[a] 911 police dispatcher is ordinarily regarded as a ‘cooperating officer’ for purposes of making this determination.”

Oringderff and 911 call sufficient to stop

Oringderff v. State, 528 S.W.3d 582 (Tex. App. - Texarkana 2017, no pet.) Officer dispatched as a result of 911 call informing dispatch that caller believed he was following a drunk driver on Highway 34. Caller told dispatch that car he was following had been weaving on both sides of the road. Caller gave his location and license plate of suspected drunk driver and described the car. Dispatch connected caller to officer. The caller repeated info to officer and, soon thereafter, officer told caller that call breaking up and asked caller for phone number. The caller said “903" and then recording ended. No other info for caller. Officer’s dash cam showed D on highway in front of officer. Dash cam showed D’s car crossing white line that separates driving lane from shoulder (fog line) and then re-entering the lane of travel. Officer’s lights then begin flashing, and D pulled over. Officer’s stop of D was supported by reasonable suspicion because anonymous caller used 911 system to report car was weaving and described location, car, and license number, and officer then saw D swerve over fog line arguably committing a traffic offense under Tex. Transp. Code Ann. §§ 545.060 or 545.058. A traffic stop constitutes a 4th Amendment seizure and reasonable suspicion is required to conduct such a stop. See Berkemer v. McCarty, 468 U.S. 420 (1984); Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Officer “has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude 15

Derichsweiler, 348 S.W.3d at 914. The USSC has stated that if 911 caller was anonymous, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Navarette v. California, 134 S.Ct. 1683 (2014). The USSC, however, stated that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’” Id. “By accurately predicting future behavior, the tipster demonstrated ‘a special familiarity with respondent’s affairs,’ which in turn implied that the tipster had ‘access to reliable information about that individual’s illegal activities.’” Id. “Virtually all of the factors relied upon by the Supreme Court in finding reasonable suspicion to instigate the traffic stop in Navarette are present here.” Anonymous caller used 911 system to report the conduct and described location, car, and license plate number. Caller said car had “been weaving on both sides of the road,” which is “dangerous behavior[] . . . strongly correlated with drunk driving.” Id. at 1690-91. Officer saw and corroborated info from 911 caller and D drifted over fog line which was arguably a traffic offense. No abuse discretion denying motion to suppress. 20.

particular establishment. He said that when he and another officer arrived at the parking lot, they saw a maroon pickup truck leaving the lot that matched the description given by the witness. The officers followed the truck and turned on their lights and sirens. The driver of the truck, D, pulled into another parking lot and stopped. The Court held that this was a valid stop because the taxi driver’s 911 call provided a detailed eyewitness description of suspicious activity related to a crime and the driver additionally described the specific vehicle that the two combatants entered and provided the address of the parking lot. Officers were able to confirm part of the driver’s report when they drove to the parking lot and observed a vehicle matching his description exiting the lot. The driver’s report created reasonable suspicion of an ongoing crime as he reported more than a conclusory allegation of mischief. B.

Detention and arrest

Utah v. Strieff and outstanding arrest warrant’s affect on bad stop

Utah v. Strieff, ___U.S.___, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) - Drug officer conducted surveillance on a house based on anonymous tip about drug activity. Officer saw people briefly visiting the house during a week and became suspicious that occupants were dealing drugs. Officer saw D leave house and detained D at nearby parking lot. Officer identified himself and asked D what doing at house. Officer then requested D’s ID and relayed the info to dispatch who informed officer D had outstanding warrant for traffic violation. Officer arrested D, searched D, and found meth and drug paraphernalia. USSC stated that officer made unconstitutional investigatory stop but learned during the stop that D had valid arrest warrant,

Tyler and 911 call sufficient to stop

Tyler v. State, 491 S.W.3d 1 (Tex. App. - Houston [14th Dist.] 2016, no pet.) Taxi driver called 911 to report assault/fight in progress in parking lot. He told dispatch that he thought it was a male and a female fighting beside a maroon-colored Ford truck. He said the man had his hands around the woman’s neck and was choking her. When the two combative individuals began to drive away, police officers arrived and followed the maroon truck and turned their lights on. Officer testified that he responded to a report of an assault occurring in a parking lot of a 16

arrested D, and seized evidence in search incident to arrest. USSC held that the evidence seized incident to arrest was admissible under 4th Amendment because officer’s discovery of warrant attenuated the connection between unlawful stop and evidence seized incident to arrest. The outstanding arrest warrant was a critical intervening circumstance that was wholly independent of the illegal stop. It was especially significant that there was no evidence that the officer’s illegal stop reflected flagrantly unlawful police misconduct. 2.

suspicion to detain D because statements by nursing home employee to dispatch that D and sister intoxicated was a subjective opinion that was required to be supported by specific, articulable facts. Dispatcher did not testify and, therefore, did not provide evidence of any specific, articulable facts, and the 911 recordings, which might or might not have contained specific, articulable facts, were not admitted into evidence. The 4th Amendment permits officer to conduct a brief investigative stop when the officer has reasonable suspicion that a person is violating the law. Navarette v. California, 134 S.Ct. 1683 (2014). Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. “The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependant upon both the content of the information possessed by police and its degree of reliability.’” Navarette. The standard looks “solely to whether an objective basis for the stop exists” and considers the totality of the circumstances. Dispatcher’s report of employee’s statement did not provide any context for the statement. Court held that the statement that the females were intoxicated is a subjective opinion, so the opinion was required to be supported by specific, articulable facts. Because officer did not have any specific, articulable facts to support the opinion; the dispatcher did not testify and did not provide evidence of any specific, articulable facts; and 911 recordings, which may or may not have contained specific, articulable facts, were not admitted into evidence; Court held that officer did not have reasonable suspicion to detain D.

Jennings and 911 call insuff; officer box car in driveway is detention

State v. Jennings, 511 S.W.3d 306 (Tex. App. - San Antonio 2016, no pet.) Officer told by dispatch that 911 caller reported two females were at nursing home and appeared to be intoxicated. The caller provided a description and license plate number of the car in which the females had driven away. Dispatch told officer that caller had been identified and work phone number obtained. Dispatch told officer females were being loud in hallways of nursing home and been asked to leave due to the disturbance. Within minutes, officer located the car and followed it onto two different streets and then parked in a driveway. Officer did not observe any traffic violations nor did he observe the driver having any problems driving the vehicle. Officer pulled into driveway just behind D and told dispatch he was conducting a traffic stop. After SFST’s, D arrested DWI. Court held that D was detained when officer boxed her car in driveway. “Most courts have held that when an officer ‘boxes in’ a car to prevent its voluntary departure, this conduct constitutes a Fourth Amendment seizure” or detention. State v. Garcia-Cantu, 253 S.W.3d 236, 246 n.44 (Tex. Crim. App. 2008). Officer did not have reasonable 17

to the police.” D’s home was a suspicious place under TCCP Art. 14.03(a)(1) because the 911 calls began at 9:46 p.m, a caller stated the person had pulled into a garage at 9:49 p.m., the officer’s dashcam showed he knocked on D’s door at 9:57 p.m., and D answered about a minute later. Warrantless arrest was legal.

Cook and 911 call/home suspicious place sufficient

Cook v. State, 509 S.W.3d 591 (Tex. App. - Fort Worth 2016, no pet.) – MA DWI0.15, motion suppress denied. Citizen informant 911 calls began at 9:46 p.m, and a caller (identified herself by first and last name, telephone number, and vehicle color and model) stated car had crossed over about three lanes and struck a concrete wall and later pulled into garage # 87 at 9:49 p.m. A different caller also followed car and said it was pulling into some apartments. The initial caller kept describing the location where car headed until driver pulled into apartment complex, and from there into garage # 87. The caller never saw the driver but did see the car pull into that particular garage. The caller agreed to wait at scene until police could arrive. Officer walked around to front of apartments and found front door that had # 87 on it. Officer’s dashcam showed officer knocked on D’s door at 9:57 p.m. and D answered about a minute later. D spoke to officer when D answered her door and voluntarily spoke to officer. D told officer D had been at birthday party and drank several glasses of wine. Officer gave D FST’s. The officer had reasonable suspicion to detain D to further investigate whether probable cause existed to arrest D for DWI because citizen informant made 911 call, officer witnessed D’s condition, and D made statements to officer D answered her door and voluntarily spoke to officer. D’s warrantless arrest was valid because probable cause to arrest D arose after D failed FST’s and officer interviewed 911 callers and other civilian W’s. “As in Derichsweiler, there is no issue in this case with respect to the reliability of the citizen-informant because she identified herself and, along with at least one passenger, stayed at the scene to give witness statements

Byram and community caretaking function shown

Byram v. State, 510 S.W.3d 918 (Tex. Crim. App. 2017) - Officer assigned to monitor a bar district in downtown. At about 5:30 p.m., officer stopped at red light and D pulled up next to officer. He smelled odor alcohol from D’s SUV and noticed a woman hunched over in the passenger seat. Officer thought passenger might be unconscious or in need of medical attention due to alcohol poisoning, so officer yelled at D/driver, asking if the passenger was okay. D did not respond. Light turned green and D drove off, and officer thought D trying to avoid contact. Officer did not see D Appellant commit any traffic violations. Officer pulled over D and immediately checked passenger who was barely conscious with some sort of medical problem. Passenger had vomited inside SUV so officer requested EMS. At time stop, officer stated he had no real reason to think that D was intoxicated. Passenger refused medical assistance, and officer arrested D for DWI. Trial judge denied motion suppress. TCCA affirmed trial judge because officer was reasonably engaged in a community-caretaking function when he stopped D since there was an incapacitated passenger and unconcerned driver in the bar district. Considering totality of circumstances, a reasonable person would believe the passenger was in need of help. The traffic stop was reasonable.

Transp. Code Ann. § 547.004, giving the officer reasonable suspicion to stop defendant.” Judgment affirmed.

Dearmond and community caretaking function shown

Dearmond v. State, 487 S.W.3d 708 (Tex. App. - Forth Worth 2016, no pet.) Officer on patrol in residential area heard repeated thud sound of a flat tire and saw a car with two flat tires stop at an intersection. Officer said he was fearing for the driver’s safety and that of the general public so officer turned on his patrol lights to help driver with the flat tires and initiated a traffic stop. Officer radioed dispatch his location and that he would be helping driver with flat tire. Officer believed that a flat tire affects the safety of the car, controlling steering, braking, and just overall control of the car and makes it more difficult to safely maneuver on the road. Officer at car smelled strong odor of burning tire rubber. Officer asked D if D knew he had two flat tires, and D said he had only one flat tire. D’s eyes were glassy and dilated and D said D had drunk a couple of whiskeys. D was unsteady on his feet and had no shoes. SFTS’s led officer to believe D had lost normal use of his mental and physical faculties by reason of the introduction of an alcoholic beverage and intoxicated. D cuffed and arrested for DWI. A search of car revealed partially consumed bottle of whiskey. D refused breath test so warrant issued for blood which showed 0.27. D claimed illegal stop. Court held that stop of D’s car “was justified under community-caretaking function because the totality of the circumstances would lead a reasonable person to believe” that D, who “was driving his car with two flat tires in a residential area at night, was in need of help.” “Additionally, there was undisputed evidence that driving on two flat tires was unsafe for the driver and others in the vicinity because such a car was difficult to control; therefore, defendant was operating his car in an unsafe manner so as to endanger a person under Tex.

Williams and challenging HGN results and blood test results

Williams v. State, 525 S.W.3d 316 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d) – Nystagmus is involuntary rapid oscillation of eyes in a horizontal, vertical, or rotary direction. HGN refers to the inability of the eyes to smoothly follow an object moving horizontally across the field of vision, particularly when the object is held at a 45 deg (or more) angle to the side. Consumption of alcohol exaggerates nystagmus to the degree that it can be observed by the naked eye. Testimony concerning an HGN test is scientific evidence subject to the requirements of Kelly v. State. The underlying scientific theory of HGN testing is valid, and the NHTSA HGN testing technique is valid as held by TCCA in Emerson. The HGN technique is applied properly when officer follows the standardized procedures outlined in NHTSA manual. Slight variations in the administration of HGN test do not render evidence inadmissible or unreliable, but may affect the weight to be given the testimony. D’s only challenge to HGN test is that officer failed to ask D if D had any recent head injuries or whether D was wearing glasses. D contends State did not meet third requirement of Kelly because State did not prove test was administered properly on the occasion in question. D asserted that his testimony regarding head injury he sustained in 2003 or 2004 that resulted in him being in a coma for over two weeks invalidated the HGN test results. D, however, did not establish that his purported head injury was of such a degree or nature that it would have impacted the validity of the HGN testing. The trial judge was not required to believe D’s 19

testimony. Judge was entitled to credit officer’s testimony that D was good candidate for HGN test over D’s testimony. No abuse discretion in admitting the HGN results. Regarding sufficiency of the evidence, D claimed his involvement in a fender-bender was not evidence of intoxication because officer admitted that these type of accidents happen often when people at that location are parallel parking. D discounted the HGN test evidence because he asserted it was improperly performed given D’s prior head injury. D also attacked the blood-test evidence by urging that the jury could have easily disregarded the blood test evidence as unreliable because the test was performed after the expiration date for the vacuum on the blood tube and the blood had been stored in the lab’s malfunctioning refrigerator unit. But the blood analyst provided an explanation for the circumstances surrounding both the container and the refrigeration issue. The analyst explained that because the blood was collected before the expiration date on the vacuum tube, the expiry date had no impact on the test results. Second, the analyst explained that the temperature in the refrigerating unit dropped below freezing, which would not have impacted the blood-test results. Finally, D claimed he stood perfectly still and erect for an extended time on the video tape made at the station, a fact he claims was not consistent with intoxication. But, the jury, not a reviewing court, resolves conflicts in testimony and weighs the evidence. We presume that the jury resolved any inconsistencies in the evidence in favor of the verdict. 7.

case for writing a trial brief in support of a motion to suppress in warrantless arrest case. Officer stopped at convenience store and saw unoccupied car running in parking lot. Officer asked people in store and adjoining Whataburger if their car. D inside Whataburger said his car. D’s eyes red and watery, and D smelled of alcohol. Officer asked D where had been that night, and D stated at bar half block away. D said had few beers, went home, changed clothes, and returned to Whataburger for food. Officer asked another officer to do HGN resulting in D arrested for public intox. DPS trooper to scene and decided to investigate for DWI. Trooper did SFST’s and arrested D for DWI. A subsequent breath test at jail was over 0.08. Officer may arrest a person without a warrant only if: (1) there is probable cause for that person; and (2) one of the exceptions TCCP articles 14.01 through 14.04 apply. Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. A finding of probable cause requires more than bare suspicion, but less than would justify conviction. An unarticulated hunch, suspicion, or good faith of arresting officer is insufficient to support probable cause to justify a warrantless arrest. D claimed no probable cause to arrest him for DWI because: (1) no one saw D driving; (2) lack of evidence regarding how long D’s car had been at scene; and (3) no info about if D consumed alcohol after arriving at the scene. D’s warrantless arrest for DWI was proper because D told trooper D consumed a few beers and two shots of alcohol, D’s car was running in parking lot, and D said he had been driving. D’s warrantless arrest for PI was proper because D’s alcohol consumption

Dansby and reasonable suspicion, probable cause, public intox, no warrant, corpus delicti

Dansby v. State, 530 S.W.3d 213 (Tex. App. - Tyler 2017, pet. ref’d) - This is a great 20

impaired his mental faculties and caused him to leave his truck running in parking lot with blinker and headlights turned on, and a field sobriety test provided more evidence of intoxication. D claimed his warrantless DWI arrest was unlawful because offense was not committed in officer’s presence or view. Under Art. 14.03, however, warrantless arrest is authorized if a person is found in a suspicious place and under circumstances which reasonably show that he has been guilty of a breach of the peace. DWI is a breach of the peace. Few, if any, places are suspicious in and of themselves. “Any place may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police.” In this case, under these circumstances, the Whataburger meets the suspicious place requirement of 14.03(a)(1). In Texas, the corpus delicti rule requires some corroboration of an extrajudicial confession regarding an injury or loss and a criminal agent. The rule does not require independent evidence that the defendant was the criminal perpetrator. The corpus delicti of DWI is that someone drove or operated a motor vehicle in a public place while intoxicated. In this case, the evidence outside the extrajudicial confession shows D’s credit card was used to pay for six beers at the bar 12:54 a.m., officer found car running in parking lot two doors down from bar at 1:30, D had red watery eyes and smelled of alcohol. Considering all the evidence independent of D’s extrajudicial confession, this evidence renders the corpus delicti more probable than it would be without the evidence.

Evans and reas susp but no probable cause and duration of stop

State v. Evans, 500 S.W.3d 528 (Tex. App. - San Antonio 2016, no pet.) - Officer saw D speeding 46/35 and stopped D. Odor alcohol from car and D’s breath. D admitted to two whiskey drinks. HGN showed six clues. No WAT or OLS because D claimed leg problems. No ABC’s because D claimed dyslexic. D then refused blow into portable breath tester. D then arrested for DWI. The traffic stop was valid because 46/35. “A seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez v. United States, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015). As a “‘relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called “Terry stop” . . . than to a formal arrest.’” Id. “Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ – to address the traffic violation that warranted the stop and attend to related safety concerns.” Id. “Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose.” Id. “Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” Id. “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’” Id. “Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. Thus, the question in this case is whether officer, after the traffic stop, had reasonable suspicion to continue detention and investigate whether D was DWI. “Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a 21

full-blown custodial arrest must be justified by a reasonable suspicion.” Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). “A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Id. “This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was objectively justifiable basis for the detention.” Id. “It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.” Id. Officer did not have reasonable suspicion that D DWI because, while D admitted to drinking alcohol, all the other specific and articulable facts pointed to D having normal use of physical and mental faculties at the time he was stopped. Also, officer did not have probable cause to arrest D for DWI because no signs of intoxication. The State points to the following as evidence of probable cause: speeding, admitting to having consumed alcohol, smell of alcohol on breath, six clues on HGN, swaying during the HGN test, failure to perform WAT/OLS, refusal to recite alphabet, and refusal to use the portable breath tester. Court stated that officer’s hearing testimony was not credible: officer faced D toward lights even though officer knew lights could affect HGN results; officer claimed no cars on highway during HGN to be affected by lights of passing vehicles but dash cam shows at least one vehicle traveling during the HGN; officer claimed D swaying during HGN but video shows not swaying and not unsteady on his feet. Court held that D does not exhibit signs of intoxication. Under

facts this case, officer did not have probable cause to arrest DWI. 9.

Scott and probable cause to arrest D for traffic offenses

Scott v. State, 572 S.W.3d 755 (Tex. App. - Houston [14th Dist.] 2019, no pet.) - D arrested, not detained for further investigation, when PO cuffed D and put D in patrol car and took D to central intox for DWI evaluation. A reasonable person in D’s position would have believed seizure was sufficiently intrusive to be an arrest. PO had probable cause (PC) for warrantless arrest for not stopping at stop sign and for turning at red light without first stopping. Because PC existed to arrest D for the traffic offenses, unnecessary to address whether there was PC to arrest D for DWI. 10.

Arrington and reasonable suspicion to detain via cumulative knowledge

Arrington v. State, 589 S.W.3d 196 (Tex. App. - Houston [1st Dist.] 2019, pet. withdrawn for death appellant) - PO had probable cause (PC) to arrest D for DWI because cumulative knowledge of witness and deputy constable gave arresting officer (AO) PC for warrantless arrest of D under exigent circumstances. D disregarded AO’s order to come outside gate of D’s home which was D’s attempt to evade lawful detention providing exigent circumstance justifying D’s arrest. No abuse discretion in denying D’s motion suppress. 11.

Villalobos and warrantless temporary detention in a suspicious place

Villalobos v. State, 550 S.W.3d 364 (Tex. App. - Houston [14th Dist.] 2018, pet. ref’d) - The trial judge reasonably concluded that D was temporarily detained for a DWI 22

investigation, was not in custody, Miranda did not apply, and area where D was found was a suspicious place. When in custody, Miranda warnings safeguard an unrepresented, interrogated suspect’s Fifth Amendment privilege against self-incrimination. Kuether v. State, 523 S.W.3d 798, 805 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d). Unwarned statements obtained during custodial interrogation are inadmissible during the state’s case-in-chief. Kuether, 523 S.W.3d at 805. TCCP article 38.22, section 3, also requires an interrogated suspect in custody be warned “and the accused knowingly, intelligently, and voluntarily waive[ ] any rights set out in the warning[s]” before oral statements are admissible at trial. Kuether, 523 S.W.3d at 805. The definition of “custody” under article 38.22 is the same as “custody” under Miranda. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). There are three categories of interactions between police and citizens: (1) consensual encounters; (2) investigative detentions; and (3) arrests. Ortiz v. State, 421 S.W.3d 887, 890 (Tex. App. - Houston [14th Dist.] 2014, pet. ref’d), citing Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Detention and arrest involve a restraint on freedom of movement: the difference is in the degree. Id., citing State v. Sheppard, 271 S.W.3d 281, 290-91 (Tex. Crim. App. 2008). Arrests have a greater degree of restraint on freedom of movement than do investigative detentions. Id. Temporary detentions for investigation do not involve custody so Miranda does not apply. Hauer v. State, 466 S.W.3d 886, 893 (Tex. App. - Houston [14th Dist.] 2015, no pet.), citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), and State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). “A person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement

was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996); Kuether, 523 S.W.3d at 808. A determination of custody requires an objective view of the circumstances surrounding the interrogaton. Herrera, 241 S.W.3d at 525. An officer’s subjective belief that custody occurred is not a factor unless this belief was conveyed to the suspect. Id. at 525-26. Officers make quick decisions under tense, uncertain, and rapidly changing circumstances. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997). Courts consider the reasonableness of the officer’s actions under the perspective of a reasonable officer at the scene without using hindsight. Id. In determining if a suspect was arrested or detained, courts consider the amount of force used, duration of detention, efficiency of the investigation, if the suspect was transported to another location, and if officer told suspect he was under arrest or was being detained for a temporary investigation. Sheppard, 271 S.W.3d at 291. “If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect’s presence during a period of investigation, this suggests the detention is an arrest.” Id. D in this case was detained and not in custody when questioned by police. There was no use of undue amount of force to hold D. The officer put D in back of patrol car until investigating officer arrived. This all occurred between 3:12 and 3:55 a.m. Another officer then arrived and spoke with D and began SFST’s. Under these circumstances, it was reasonable for the trial court to conclude D was temporarily detained for DWI investigation and not in custody. Kuether, 523 S.W.3d at 809 (defendant not in custody when held in patrol car, investigating officer approached him shortly thereafter, and decided to conduct DWI investigation); Hauer, 466 S.W.3d at 891-92 (defendant was 23

scene of the accident. Gallups v. State, 151 S.W.3d 196, 201-02 (Tex. Crim. App. 2004) (D’s home was suspicious because D was arrested at home for DWI shortly after leaving wrecked car at accident scene of an accident). D was found in a suspicious place under 14.03(a)(1), so no error in failure to give jury question whether D’s arrest was illegal.

detained and not in custody while officer cleared accident scene before investigating DWI). Article 38.23 applies only to illegally obtained evidence. 38.23 does not address legality of warrantless arrests. There is no authority that a D is entitled to a jury question regarding legality of arrest based on whether he was found in a suspicious place. Under TCCP Chapter 14, warrantless arrests are authorized in limited circumstances. Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005); Banda v. State, 317 S.W.3d 903, 911 (Tex. App. - Houston [14th Dist.] 2010, no pet.). Article 14.03(a)(1) authorizes the warrantless arrest of suspect found in suspicious place under circumstances reasonably showing suspect committed breach of the peace. Banda, 317 S.W.3d at 911-12. DWI is a breach of the peace. Banda, 317 S.W.3d at 912 n.4. A warrantless arrest is proper under 14.03(a)(1) if the totality of the circumstances show probable cause that suspect committed a crime and was found in a suspicious place. Id. at 912. D claims his warrantless arrest was illegal because officer admitted at trial that D was not found in a suspicious place. Few places, if any, are inherently suspicious. Banda, 317 S.W.3d at 912, citing Dyar v. State, 125 S.W.3d 460, 464-65 (Tex. Crim. App. 2003). A very fact specific analysis is used to determine if a place is suspicious. Id. A place may become suspicious if there is a reasonable belief that suspect committed a crime and exigent circumstances call for immediate action or detention by officer. Id. A key factor in determining if a place as suspicious is if there is a short time frame between the crime and the apprehension of the suspect. Id. In this case, the area where the D was found was a suspicious place because officer could have reasonably believed that D was DWI, was involved in a recent accident nearby, and needed to be detained because had fled the

12.

Cagle and 21-minute prolonged investigation is reas

Cagle v. State, 509 S.W.3d 617 (Tex. App. - Texarkana 2016, no pet.) - Officer stopped D and called for another officer to come and do SFST’s. Approximately thirty-eight minutes elapsed between the traffic stop and when other officer gave SFTS’s. D claimed that this delay was unreasonable. The Court held that the police did not unreasonably prolong the investigative detention under 4th Amendment by waiting twenty-one minutes for the assistance of a law enforcement officer to conduct sobriety tests. The first seventeen minutes of the detention did not violate the 4th Amendment because it related to the initial traffic stop for running a red light, a disturbance, and a possible second traffic offense of DWI. Given that the D appeared to be intoxicated and admitted he had consumed two beers, the twenty-one minutes spent awaiting the arrival of an officer to conduct SFST’s served legitimate law enforcement purposes. 13.

Kuether and custody analysis re handcuffs

Kuether v. State, 523 S.W.3d 798 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d) - A car was struck by a truck, causing the car to spin several times before coming to rest on the highway. Officer was dispatched to the scene and located an unoccupied truck off the highway on a grassy area near some 24

woods. The truck was damaged on its front-end passenger side. There were no other vehicles in the area. DWI task force officer arrived on scene and concluded that truck had struck the car. Officer searched the truck and found a picture ID belonging to D. A K9 unit was summoned to search for the truck driver and dog alerted to the scent of a person in the woods. The woods were too dense for officers to get inside so officer called for a helicopter. The helicopter had infrared radar and verified a person was in the woods and directed the officers on the ground to the easiest route to the suspect. Officer found D stuck in a bush loaded with stickers. Officers handcuffed D and put him in the backseat of a patrol car. Task force officer saw D wearing one shoe, smelled like alcohol, slurred his speech, had red glassy eyes, and was unsteady on his feet. In response to questions, D said his other shoe was in the woods and he ran because he had been drinking and was scared and had been driving the truck. Officer then took D to station for sobriety testing. At station, officer read D Miranda warnings and administered HGN, WAT, and OLS. D had six clues on HGN, no clues on OLS, and five of eight clues on WAT. Officer obtained search warrant to draw D’s blood which showed 0.12. At trial, the State's expert was unable to determine D’s BAC at time of driving. Interactions between police and citizens fall into three categories: consensual encounters, investigative detentions, and arrests or their custodial equivalent. Both detention and arrest involve a restraint on one’s freedom of movement: the difference is in the degree. An arrest places a greater degree of restraint on an individual’s freedom of movement than does an investigative detention. Persons temporarily detained for purposes of investigation are not in custody for Miranda purposes, and thus the right to

Miranda warnings is not triggered during an investigative detention. When considering whether a person is in custody for Miranda purposes, courts apply a reasonable person standard, i.e., “[a] person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). The subjective belief of law enforcement officials about whether a person is a suspect does not factor into the custody determination unless an official’s subjective belief was somehow conveyed to the person who was questioned. “In assessing the circumstances, allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances.” Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997). Courts look to the reasonableness of the officer’s actions, which is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Officers “may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety.” Id. at 117. Handcuffing does not establish custody but is only one of a range of relevant factors in determining that a suspect is in custody. Court held that, under facts this case, D was not in custody for 5th Amendment purposes when he made statements at the scene even though D handcuffed and placed in the patrol car because officer testified D was not arrested but was merely being detained as a suspect for failure to stop and give information and the officers did not use an undue amount of force to apprehend or hold him.

14.

DWI officer arrived and D asleep in back of patrol car. Officer could smell odor of alcohol on D’s breath, D mumbled and spoke with a slight slur, and D had bloodshot, droopy eyes. Officer did not read Miranda rights prior to speaking with D. The trial court admitted DVD of officer’s DWI investigation of D. D told officer D had been drinking beer and started drinking around noon. D on HGN had six clues and refused other SFST’s and breath/blood test. D arrested DWI. The Court held that D was not in custody or under arrest at the time the officer asked him questions as part of the DWI investigation, and therefore the officer was not required to read D Miranda warnings before continuing the investigation. D’s encounter with the officers remained an investigatory detention and was not converted to an arrest when D was cuffed and put in the patrol car. The officer explicitly told D that he was not under arrest but was instead being detained pending further investigation and the record showed that the officer did so to keep D safe and secure while officers continued to investigate the accident scene. Judgment affirmed.

Koch and custody v. detention and Miranda

Koch v. State, 484 S.W.3d 482 (Tex. App. - Houston [1st Dist.] 2016, no pet.) - At 10:00 p.m., person saw truck that had crashed into a fence and light post. Person saw D crouched over steering wheel inside the still-running truck. Person tapped D on the shoulder to get his attention, and D began mumbling. Person asked if D needed assistance, and D responded with gibberish. D then got out of his truck, staggered toward back of truck, and looked around before saying he needed to go. D got back into his truck and attempted to drive forward and his truck brushed against person. Person concluded D was intoxicated and did not notice any injuries. Other bystanders at the scene called 9-1-1. Person removed D from truck so would not injure himself or others and pinned D against truck to prevent him from leaving. Person stayed at scene until officers arrived moments later. Person told officers what he had seen. Officers opened truck door and two beer bottles fell out. Officer saw D sitting on sidewalk near truck and appeared groggy and tired, and officer could smell odor of alcohol when she spoke with D. Officer called dispatch and requested specialized DWI officer. While the DWI officer was on way, officer handcuffed D and placed him in the back of patrol car. Officer testified that D was not under arrest at that point but was instead detained to keep D safe and keep him from the scene so they could continue to investigate the scene. Officer continued to investigate the accident while D in patrol car. DWI officer arrived and officer gave info they had obtained to another officer who continued the investigation, and they left the scene. Officer determined D had lost control, failed to maintain a single lane, and struck a fence. Officer saw bottles of alcohol in truck.

15.

Ivey and not in custody during hospital statement

Ivey v. State, No. 01-15-00804-CR (Tex. App. - Houston [1st Dist] 2017, pet. ref’d) (unpublished) - The trial court properly denied the suppression motion taken at the hospital because the D was not in custody so Miranda warnings were not required. At a suppression hearing, a D must initially prove a statement resulted from custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). “Custody” is proven only if the circumstances would cause a reasonable person to believe his freedom of movement was restrained to the degree associated with a formal arrest. 26

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The issue is whether a reasonable person would have believed he was not at liberty to end the interrogation and leave. Nguyen v. State, 292 S.W.3d 671, 678 (Tex. Crim. App. 2009). This reasonableperson standard asssumes an innocent person. Dowthitt, 931 S.W.2d at 254. Whether a person was in custody is an objective view, so the subjective intent of the police is irrelevant unless communicated to the suspect. Id. The suspect’s subjective belief is also irrelevant. Id. Custody may arise in four situations: (1) the suspect is significantly deprived physically of freedom of action; (2) police state the suspect is not free to leave; (3) the police action would lead a reasonable person to believe that freedom of movement has been significantly restricted; or (4) probable cause exists to arrest the suspect, and police do not tell the suspect she may leave. Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255. The D argued the fourth situation occurred in this case because the police knew prior to the interrogation at the hospital that the complainant had died and the D’s driving caused the accident. The D argued the police had probable cause to arrest the D prior to the interrogation, and the police never told the D that the D was free to leave. The D thus argued Miranda rights were required before the interrogation. The fourth situation, however, “does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.” Dowthitt, 931 S.W.2d at 255; Gardner, 306 S.W.3d at 294 n.48. Factors relevant to a determination of whether restraint has become an arrest include the amount of force used, the length of the detention, the duration of the investigative

process, whether the restraint is at the scene or after transported to another location, and whether police told the suspect he was under arrest or merely being detained for a temporary investigation. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). If a suspect is restrained for medical treatment and not by law enforcement, few of these factors apply. Martinez v. State, 496 S.W.3d 215, 220 (Tex. App. - Houston [14th Dist.] 2016, pet. ref’d). No force was used to restrain the D because the D was incapacitated from her injuries. The D was not handcuffed and could have terminated the interrogation at any time. The police did not tell the D she was free to leave but did repeatedly inform the D she was not under arrest. The D also volunteered that she had taken meth in response to the officer’s open-ended inquiry about the prior day’s events. Merely because the D incriminated herself, resulting in probable cause to arrest, did not create a custodial situation. Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010). The facts of this case did not result in the D being in custody. It is the “compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning [is] conducted” that establishes custody under Miranda. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) (quoting Beckwith v. United States, 425 U.S. 341, 346-47, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976)). The D was a suspect, but the officer did not restrain the D to the degree associated with arrest and did not deprive the D of physical freedom during or after the interrogation. The D failed to prove that a reasonable person in these circumstances would have felt deprived of freedom to the extent associated with formal arrest. Dowthitt, 931 S.W.2d at 255. The D was not in custody during the interrogation so Miranda warnings were not required. Herrera, 27

241 S.W.3d at 526. The denial of the suppression motion was reasonable. C.

Reading the DIC-24 observation periods

724.015 did not have any causal effect on D’s decision to provide a specimen of her blood for testing.

and 2.

Dorr and reading an obsolete DIC24 to defendant no affect on consent

Serrano and 15-minute observation period

Serrano v. State, 464 S.W.3d 1 (Tex. App. - Houston [1st Dist.] 2015, pet. ref’d) Officer stopped D for 81/65. Officer smelled odor of alcohol from the car and suspected D DWI because bloodshot eyes and slurred speech. D refused SFTS’s. At police station, officer met with breath test operator (BTO). Officer agreed with D’s counsel that BTO first came in contact with D when they entered the intox room where the breath test is conducted. In intox room, BTO turned on a video recording device, read D a statutory warning, and requested a breath sample from D. The video recorded for approximately six minutes before BTO turned it off to conduct the breath test. Officer testified that there was no time lapse from when the video ended until the time that D provided his breath sample. BTO testified that BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The suspects spend these 15 minutes in the intox facility’s holding cell, which has a metal door that is see-through. The BTO is not permitted to be inside the holding cell, so she stands outside of it for 15 minutes. There is frequently more than one BTO working at a time, so frequently one is in the hallway outside the holding cell observing the suspects while another is in the intox room administering a breath test. BTO’s assign each suspect a timer to ensure that he spends 15 minutes in the holding cell before a breath test is administered. After a suspect has been in the holding cell for 15 minutes, he is taken into the intox room where BTO turns on a video recorder, reads the suspect his statutory warnings, and administers the breath test on the Intoxilyzer. BTO testified that she

State v. Dorr, No. 08-13-00305-CR (Tex. App. - El Paso, February 13, 2015, no pet.) (unpublished) - An officer arrested D for DWI. The officer erroneously read the 2001 version of the DIC-24 to D rather than the 2011 version and D consented to providing a specimen of her blood. Trial court suppressed blood results for this reason. For the blood evidence to be excluded, the record must show there is a causal connection between the officer’s failure to warn D that he could obtain a warrant for her blood if she refused to consent and D’s decision to submit to a blood test. State v. Woehst, 175 S.W.3d 329 (Tex.App. - Houston [1st Dist.] 2004, no pet.)(holding that the trial court correctly suppressed the evidence because a causal connection existed between defendant’s refusal to submit breath or blood specimen and officer’s inaccurate warning that if she refused, her license would be suspended for not fewer than 90 days, rather than not fewer than 180 days; defendant testified she would have consented if she had been properly warned that her license would be suspended for not fewer than 180 days). D did not testify at the suppression hearing and the record does not contain any other evidence showing that the statutory violation had any impact on her decision to consent to the blood test. Court reversed and said trial court erred in suppressing the blood specimen and all evidence related to the blood test under Tex. Code Crim. Proc. Ann. art. 38.23 because the reading of the outdated statutory warnings under Tex. Transp. Code Ann. § 28

did not specifically remember observing D for 15 minutes, but she said she must have administered the test because her identification information is on D’s test results and “there’s no way that [someone else] can use your information” to do a breath test. Additionally, BTO remembered recording the video of D before the breath test and that she appears on the video. Because BTO testified that she did not recall observing D for 15 minutes before administering the test, D moved to suppress the breath test results for the failure to meet the requirement that the suspect be observed for 15 minutes before the test. The trial court heard arguments on Serrano’s motion outside the presence of the jury and stated sua sponte that it would submit an article 38.23(a) jury instruction regarding whether the 15 minute requirement was met. “A breath specimen taken at the request or order of a peace officer must be taken and analyzed under the rules of the department [of public safety] . . . .” Tex. Transp. Code Ann. § 724.016. The rules for breath-alcohol-testing procedures are set forth in 37 Tex. Admin. Code § 19.4(c). A presumption of admissibility applies when the procedures prescribed by DPS are followed. Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. 2006). Court stated that D “points to no evidence that contradicts [BTO’s] testimony that she must have observed Serrano for 15 minutes while he was in the holding cell because she followed standard procedures.” Further, “the Administrative Code does not require direct observation, much less ‘contact.’” See 37 Tex. Admin. Code § 19.4(c)(1) (“Direct observation is not necessary to ensure the validity or accuracy of the test result . . . .”). Court held that trial court did not err by denying defendant’s motion suppress breath test results because BTO testified that she observed the 15-minute waiting period

required by 37 Tex. Admin. Code § 19.4(c)(1) (2014). Based on the testimony that the BTO complied with 37 Tex. Admin. Code § 19.4(c)(1), D was not entitled to submission of a jury instruction under Tex. Code Crim. Proc. Ann. art. 38.23. D.

Blood draws without a warrant

McGruder and 724.012(b)(3)(B) re warrantless blood draw unconstitutional

McGruder v. State, 483 S.W.3d 880 (Tex. Crim. App. 2016) - Felony DWI 3d. An appellate court’s ruling that Tex. Transp. Code Ann. § 724.012(b)(3)(B), requiring an arresting officer to take a blood specimen from a repeat DWI offender who is arrested for that offense, without a warrant, was not facially unconstitutional could not stand because it had been held, in the interim, that Fourth Amendment challenges to statutes authorizing warrantless searches were no exception to the general rule that facial constitutional attacks could proceed under a diverse array of constitutional provisions, and that the statute did not, by itself, form a constitutionally valid alternative to the Fourth Amendment warrant requirement. Judgment vacated. 2.

Mitchell and “almost always” can draw blood draw from unconscious driver

Mitchell v. Wisconsin, ___U.S.___, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019) - If a driver is unconscious and cannot be given breath test, exigent circumstances rule almost always permits a blood test without a warrant. With unconscious driver, it is very likely driver would be taken to emergency room to have blood drawn for medical treatment even if PO was not seeking BAC information. PO’s 29

sometimes find unconscious driver after PO gets to accident scene where PO may also have other injured people or traffic control issues which may be incompatible with the procedures required to get a warrant. Thus, if driver unconscious, general rule is that a warrant is not needed. 3.

began attempting to put out the fires. With the help of the other officers, officer was able to remove D from his heavily damaged truck’s driver’s seat. Officer then started to secure the area to make sure nobody entered the accident scene. Activity and traffic was considerable so the officer stated that, from a law enforcement and public safety perspective, they needed as many officers on the scene as they could possibly get. The fire and its continued explosions required keeping people away for their own safety. The fire’s danger required blocking off several major intersections around the area. The accident occurred around a shift change which further complicated satisfying the manpower needed to secure the scene, conduct an investigation, and maintain public safety. An officer arrived at the scene and spoke to D who was sitting on the ground. D was confused and did not know where he was. EMS arrived and D told EMS he had taken some meth. At the hospital, D was mumbling incoherently to himself and experiencing involuntary leg and hand movements. Officer described this behavior as “tweaking” – a condition consistent with meth intoxication. An officer spent approximately three hours investigating the scene of the accident. Fourteen officers were dispatched to assist with the scene. The entire accident scene was not cleaned up and cleared until 6:00 the following morning. D was arrested at 11:38 p.m. and refused to provide a blood sample and kept he used "meth" and was not drunk every time the officer read the word “alcohol” or “intoxication” in the statutory warning. The officer requested hospital staff draw D’s blood which was drawn at 12:20 a.m. and revealed D’s blood contained intoxicating levels of amphetamine and meth. Trial judge overruled motion to suppress and court of appeals reversed. TCCA reversed the court of appeals

Ruiz and cannot draw blood from unconscious person; exigency TBD

State v. Ruiz, 581 S.W.3d 782 (Tex. Crim. App. 2019) - Felony DWI where D fled scene car wreck and PO found D unresponsive in nearby field and took D to hospital. PO read DIC to unconscious D (so D unable to make self-determination or choice and could not hear the warnings read to him and could not limit or revoke his consent) and ordered warrantless blood draw. TCCA held implied consent not valid reason to draw blood under these circumstances and, regarding exigency, case is remanded to court appeals in light of Mitchell v. Wisconsin. On remand, court of appeals found exigency existed. State v. Ruiz, 13-13-00507-CR (Tex. App. - Corpus Christi, March 11, 2021, no pet. h.). 4.

Cole and warrantless blood draw proper b/c exigency

Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016) - Intox manslaughter case. At 10:30 p.m., D drove his large pickup truck 110 miles per hour down a city street running the red light at a busy intersection and striking another pickup truck causing an explosion and engulfing the other truck in flames. The other driver was killed instantly. Officer arrived at scene and saw other driver in driver’s seat but was unsure he was dead. Officer also saw D’s truck against a nearby building with fire approaching it. D was in the driver’s seat yelling for help, but officer could not open the doors. By this time, other officers arrived and 30

and held, “From our review of the totality of the circumstances, we conclude that law enforcement reasonably believed that obtaining a warrant in this case would have significantly undermined the efficacy searching Cole's blood. The circumstances surrounding the taking of Cole’s blood sample demonstrate that obtaining a warrant was impractical. Like the officer in Schmerber, law enforcement was confronted with not only the natural destruction of evidence through natural dissipation of intoxicating substances, but also with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. We therefore conclude that exigent circumstances justified Cole’s warrantless blood draw.” “Only after the investigator measured, calculated, and assessed the vehicles’ damage was he able to form probable cause to believe that defendant was responsible for the accident and the victim’s death.” “Both the time required to complete the accident investigation and the lack of available law enforcement personnel further hindered pursuing the warrant process.” “The record did not establish that there was a readily available officer who could have gotten a warrant while the investigator continued his investigation and another officer kept defendant in custody at the hospital.” “Without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know how much evidence it was losing as time passed.” 5.

While D was at the hospital, the investigating state trooper asked a nurse to conduct a mandatory blood draw under section 724.012 of the Transportation Code which permits an officer to take a blood specimen upon refusal of the driver, where as a direct result of the accident, an individual other than the driver has suffered bodily injury and has been transported to a hospital for medical treatment. The blood draw occurred two and one-half hours after the crash and showed 0.35. Trooper stated that he was the sole trooper on duty in the county, he did not arrive on the scene until almost an hour after the crash and long after D was taken to the hospital, the trooper had to clear the highway and investigate the crash before leaving the scene, D’s refusal and the mandatory blood draw occurred two and a half hours after the collision, and the trooper testified that if he had had to get a warrant it would have taken another hour to an hour and a half and valuable evidence would have been lost. Trooper did not attempt to obtain a warrant. The Court held that State met its burden to show exigent circumstances that made obtaining a search warrant for D’s blood draw impractical under the above facts. 6.

Couch and warrantless blood draw proper? Exigency TBD (FOF/COL)

State v. Couch, No. 03-16-00727-CR (Tex. App. - Austin, October 31, 2018) (unpublished), vacated, remanded, State v. Couch, No. PD-1372-18 (Tex. Crim. App., May 8, 2019) (unpublished) - PO arrested D for Intox Assault and Agg Asslt - DW after an accident and took D to a hospital where D’s blood was drawn without a search warrant. The trial judge granted the motion to suppress finding no exigency. The court appeals reversed finding exigency as an exception to the warrant requirement. The court claimed

Cosino and proper warrantless blood draw proper b/c exigency

Cosino v. State, 503 S.W.3d 592 (Tex. App. - Waco 2016, pet. ref’d) - D charged with felony DWI following a two-vehicle accident. D and driver of the other vehicle were taken to a hospital for medical treatment. 31

many factors led to exigency: (1) there was a head-on accident resulting in EMS and police being dispatched even though no extreme action to extract as in Cole; (2) dispatched officers were busy with scene; (3) no officer available to get a warrant; and (4) delay between accident and time to get D to a hospital. D filed a PDR with TCCA. In the TCCA, D claimed court appeals erred by reversing trial judge’s granting of motion to suppress for no exigency because court appeals used improper analysis and failed to give proper deference to trial judge’s FOF/ COL. TCCA remanded because court appeals did not have benefit of State v. Garcia, 569 S.W.3d 142 (Tex. Crim. App. 2018) (“Reviewing courts should afford ‘almost total deference’ to the trial judge’s findings on matters of historical fact, especially when those findings ‘are based on an evaluation of credibility and demeanor.’ But ‘application[s] of law to fact’ or ‘mixed questions of law and fact’ are entitled to deference only if they ‘turn[] on an evaluation of credibility and demeanor.’ Otherwise, they are reviewed de novo) in which TCCA addressed deference a reviewing court owes to trial judge’s FOF/COL in deciding exigency. 7.

When she asked if he was okay or if he was drunk, D said he was drunk. He then ran from the scene. D’s passenger was leaning against a post and was “beat up pretty bad from the accident.” The driver of the passing car noticed a strong smell of alcohol coming from the inside of the car. She called 911. Officer dispatched to the scene and a woman waved him down and pointed to a parked car and told him that someone was under her car and that he did not belong there. When officer approached the parked car, he saw an injured man under the car matching the driver’s description. Officer detained D at 12:17 a.m. and noticed D’s bloodshot eyes, slurred speech, bloodied face, and inability to stand on his own. Another officer took D into his custody and noticed the strong odor of alcohol on D’s breath, bloodshot eyes, unsteadiness on his feet, and slurred speech. Officer thought D suffered injuries as a result of the accident, so he did not conduct any SFST’s. Based on his observations, officer concluded D had lost the normal use of his mental and physical faculties due to alcohol and arrested D for DWI. D refused to give a breath or blood sample. D was treated by EMS at the scene and complained about neck and back pain so EMS transported him to a hospital. The officer followed the ambulance to the hospital, and it took only a couple of minutes to get from the accident scene to the hospital. At hospital, officer filled out a form requesting a blood draw and gave it to the nurse in charge. Because the hospital was particularly busy that night, D’s blood was taken at 2:30 a.m., over two hours after his arrest and showed 0.18. D sought to suppress the blood-test results at trial relying on McNeely. Without making any findings of fact or conclusions of law, the judge overruled D’s objection and admitted the test results. The TCCA held that, while evading law enforcement by fleeing the accident scene

Weems and warrantless blood draw improper b/c no exigency

Weems v. State, 493 S.W.3d 574 (Tex. Crim. App. 2016) - Felony DWI case. Around midnight, D drove himself and a friend back to his house from a nearby bar. On the way, D’s car slowly veered off the road, flipped over on to its roof, and struck a utility pole. Shortly after the accident, a passing car stopped after seeing the car on its roof with its tires still spinning. The driver was the first on the scene. She saw D get out of the car through the driver’s side window. D got out of the car and tried to stand, but was stumbling and having difficulty maintaining his balance. 32

and hiding, D’s “blood alcohol concentration potentially continued to diminish, and with it, possible evidence to prove or disprove his level of intoxication at the time of driving.” “Aside from defendant’s own self-imposed delay and the forty minutes worth of alcohol dissipation, little else in the record lent support to finding exigency.” The officer’s testimony suggested that substantial delay in obtaining D’s blood was at least foreseeable, but another officer’s presence at the hospital militated against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence. “McNeely commands that ‘where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.’” “On this record, the State is unable to demonstrate that practical problems existed in obtaining a warrant ‘within a timeframe that still preserved the opportunity to obtain reliable evidence.’” “The State failed to meet its burden and establish that exigency circumstances existed to satisfy the Fourth Amendment’s reasonableness standard.” 8.

Instead, whether SW is required for a nonconsensual blood draw of DWI suspect must be decided using the same totality-of-the-circumstances test used for exigency exceptions in other circumstances. In State v. Villarreal, TCCA held the Texas implied consent statute does not provide effective consent to a warrantless search if a suspect has expressly refused or revoked consent to the search. When a suspect refuses a blood draw, 4th Amend requires either SW or exception to SW requirement. Thus, whether officer is excused from obtaining SW in DWI case with dissipating alcohol is analyzed under a totality-of-the-circumstances review for exigent circumstances. State v. Tecero, held that officer’s good faith belief that Tex. Transp. Code permitted nonconsensual, warrantless blood draw is irrelevant to whether blood-draw results should be suppressed under 4th Amend. In case at bar, State listed 24 facts it argued established exigent circumstances to justify warrantless search including: (1) accident occurred late at night; (2) D no longer at scene when police arrived and had to be brought back; (3) accident site needed to be secured and investigated; (4) officers needed to manage traffic in area; (5) although prosecutors on call day/night to assist officers with obtaining a SW, the magistrates, themselves, were not on call and would have had to be located; and (6) on at least one occasion unrelated to this case, a judge could not be found to issue a SW. But officers did not attempt to secure a SW – officer testified he took “zero steps” to obtain a SW to draw D’s blood. “The State argues that it may have proven difficult to locate a judge to sign a warrant, but, without any effort to do so, the testimony is only speculation.” Under the totality of the circumstances, Court held State failed to demonstrate an exigency to excuse the requirement of a warrant.

McGuire and warrantless blood draw improper b/c no exigency

McGuire v. State, 493 S.W.3d 177 (Tex. App. - Houston [1st Dist.] 2016, pet. ref’d), cert. denied, ___U.S.___, 137 S.Ct. 2188, 198 L.Ed.2d 255 (2017) – Ft. Bend County 0.16 DWI3d fatality case. Driver refused to submit blood, so officer obtained blood without SW. In Missouri v. McNeely, USSC held that exigency exception for preventing the destruction of evidence does not create a “per se” rule excusing an officer from obtaining SW with drunk driver whose alcohol content is steadily diminishing through the natural dissipation of alcohol. 33

“The Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.’” “A warrantless search of a person is reasonable only if it falls within a recognized exception.” State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2014), cert. denied, 136 S. Ct. 2544, 195 L. Ed. 2d 869 (2016). “Bodily intrusions implicate an individual’s ‘most personal and deep-rooted expectations of privacy,’ and therefore they are considered searches that fall under the Fourth Amendment’s warrant requirement.” Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013). “There are several exceptions to the warrant requirement, but the instant case involves only one – a warrantless search performed to prevent imminent evidence destruction, or the so-called ‘exigency exception.’” Cupp v. Murphy, 412 U.S. 291, 296, 93 S. Ct. 2000, 2004, 36 L. Ed. 2d 900 (1973). The exigency exception applies “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 569 U.S. at 148-49, 133 S. Ct. at 1558. “Exigency potentially provides for a reasonable, yet warrantless search ‘because “there is compelling need for official action and no time to secure a warrant.’” McNeely. “Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances.” Id. “[A] warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978). “An exigency analysis requires an objective evaluation of the facts reasonably available to the officer at the time of the

Bonsignore and warrantless blood draw improper b/c no exigency

Bonsignore v. State, 497 S.W.3d 563 (Tex. App. - Forth Worth 2016, pet. ref’d) Felony DWI 3d. The warrantless blood draw violated D’s 4th Amendment rights because, “considering the totality of the circumstances, including the fact that the police department was a small department, the dissipation rate of the alcohol in defendant's blood, and the seriousness of the offense – taken together, the State failed to meet its burden to show any exigent circumstances justifying the failure to obtain a warrant.” “There was no evidence that understaffing of the police force was an emergency, there was no evidence that an actual emergency arose that would have required a fourth officer, and there was no evidence regarding how any anticipated delay in procuring a search warrant would have jeopardized the State’s ability to retrospectively reconstruct D’s blood alcohol content. The judgment was reversed and remanded for a new trial. 10.

Sanders and warrantless blood draw improper b/c no exigency

State v. Sanders, 535 S.W.3d 891 (Tex. App. - Fort Worth 2017, pet. ref’d) Fourth Amendment required suppression of evidence from warrantless blood draw after an accident because prosecution failed to carry its burden that exigent circumstances existed. There were numerous officers and emergency personnel available, some officers were not very busy, officers had observed evidence of intoxication, a magistrate was at the scene of the accident, five minutes from the hospital, and the deputy simply believed he did not need a warrant; there was no evidence of what procedures existed for obtaining a warrant. 34

search.” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006). “The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a ‘now or never’ situation.” McNeely. “The body’s natural metabolism of intoxicating substances is distinguishable from the potential destruction of easily disposable evidence when the police knock on the door.” Under the facts of this case, “We conclude, as the Weems court did, that the totality of the circumstances found on this record militates against a finding that practical problems prevented Neff from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence of Sanders’s blood alcohol content.” 11.

In DWI cases, “the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case” – but “it does not do so categorically.” “Instead, any exigent-circumstances review should be informed by the totality of the facts and circumstances available to the officer and analyzed under an objective standard of reasonableness.” “[W]here police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” In this case, the “exigency, if any, arises only from the dual inferences that, based on these facts, (1) the nurse was about to infuse a substance into Garcia's bloodstream, and (2) this infusion might adversely affect the integrity of the blood evidence.” “If reasonable, these inferences should be considered in determining whether, as a matter of law, the officers faced an objective exigency relieving them of the obligation to obtain a warrant.” A trial judge “should take into account, not only the well-known ‘natural dissipation’ of alcohol in the body, but also ‘the procedures in place for obtaining a warrant, the availability of a magistrate judge, and the practical problems of obtaining a warrant within a timeframe that still preserves . . . reliable evidence.’” “The United States Supreme Court has expressly ‘decline[d] to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.’” “And, insofar as the severity of the accident might have adversely affected the officers’ ability to apply for a warrant – which sometimes occurs because the manpower necessary to begin the warrant process is fully invested in controlling a chaotic crime scene – under the trial judge’s findings, no such concern was present in this case.” “As the court of appeals noted, Officer

Garcia and warrantless blood draw improper FOF/COL; evid-destroy med treatment

State v. Garcia, 569 S.W.3d 142 (Tex. Crim. App. 2018) - If officer objectively reasonably believes that an evidencedestroying medical treatment is imminent, the Fourth Amendment does not require the officer to wait until the treatment is mere moments away before he may act. “A warrantless search is per se unreasonable under the Fourth Amendment unless it falls within a recognized exception to the warrant requirement.” “The wellestablished ‘exigent circumstances’ exception applies when ‘the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’” “Under this exception, a law-enforcement officer may be justified in conducting a warrantless search ‘to prevent the imminent destruction of evidence.’” 35

Rodriguez was able to depart the crime scene less than an hour after his arrival to begin drafting a warrant affidavit.” “This demonstrates a reasonable police judgment that, at least at the time the warrant process was initiated, the delay inherent in obtaining a warrant did not pose a significant risk of undermining the efficacy of a blood draw.” “The officers’ testimony was uniformly to the effect that they suspected Garcia of alcohol-induced intoxication. There is nothing in the record to show how or why the officers might reasonably have suspected that Garcia was also using cocaine. A search cannot be justified by what it uncovers. Accordingly, we will not consider evidence that Garcia was under the influence of cocaine in reviewing de novo the reasonableness of the officers’ search.” “In the emergency-room setting, the officer faces an impossible choice between (1) delaying a potentially life-saving treatment to obtain the best possible evidence or (2) allowing that evidence to be spoiled so that a suspect’s life might be saved. With these concerns in mind, we do not believe the Fourth Amendment requires police officers to wait until an I.V. needle is inches away from the suspect’s arm before they may legally intervene – at which time, paradoxically, they might be duty-bound not to intervene. We do not hesitate to say that, if an officer is actually aware of facts from which an objectively reasonable officer could conclude that an evidence-destroying medical treatment is imminent, the Fourth Amendment allows the officer to take any reasonable steps to preserve the integrity of the imperiled evidence.” “But in this case, the trial judge’s record-supported findings show that these officers were not faced with any such dilemma. The trial judge repeatedly emphasized his finding that, as a matter of historical fact, at the time the officers ordered the phlebotomist to take a sample of Garcia’s

blood, all medical treatment of Garcia had stopped.” Based on the facts of this case, “considering this medical-treatment evidence in conjunction with the severity of the accident and the supposedly underdeveloped warrant processes in El Paso County, we conclude that the trial judge’s recordsupported findings weigh against the existence of an exigency in this case. If obtaining a warrant was reasonably feasible at the beginning of the application process, and the trial judge rejected the factual basis of the only plausible intervening cause that could make that process impractical to complete, then abandoning the already-begun warrantapplication process and instead conducting a warrantless blood draw was objectively unreasonable.” 12.

Bell and warrantless blood draw improper b/c no exigency or consent

Bell v. State, 485 S.W.3d 663 (Tex. App. - Eastland 2016, no pet.) - SJF DWI with child passenger. Officer saw a car that failed to come to a complete stop at a stop sign. Officer followed the vehicle, activated his patrol lights, and had the vehicle stop as part of a traffic stop. Officer approached the vehicle and identified D as the driver. He also noticed that there was a four-year-old boy in the backseat of the car. D’s answers seemed delayed and his speech was coming very slow. Odor of alcohol on D, but D denied that he had been drinking and failed to give a reason for why he smelled of alcohol. D performed poorly on SFST’s. Officer arrested D for DWI and D refused breath/blood test. Officer took D to a hospital to “get a mandatory blood draw” because the presence of the child in D’s car required him to do so. Officer proceeded under the impression that the Texas Transportation Code provided him with implied consent to take a specimen of D’s blood. D jerked his arm away which 36

caused a blown blood vein and again told the officer no blood draw. Eventually, a specialty technician took a specimen of D’s blood while officers and hospital security physically restrained him. Blood tests revealed that Appellant's blood alcohol level was 0.171. Officer did not question or interview D after the blood draw. He never secured a search warrant because, given the presence of the child in the backseat of the car, he thought he had the authority to take a blood specimen. Court held that, in this case with this charge, trial court erred when it denied D’s 4th Amendment motion to suppress the evidence from the blood draw under Tex. Transp. Code Ann. § 724.012 because D did not consent and even refused to give a blood specimen, there was no exigent circumstance, and the exclusionary rule applied. 13.

draw because D had at least two prior DWI convictions. Officer testified that he did not believe that a warrant was necessary under the circumstances. He admitted that his offense report did not mention any exigent circumstances; he had no witnesses to interview and nothing else would have caused an unusual delay in securing a warrant. Officer testified he was working that evening to fill in for officers who were out sick. The shift was short-handed that night, staffed by four officers instead of the usual six or seven. One officer had stopped and assisted him with an inventory of D’s truck and waited with him for the tow truck, but this officer was called away to assist with another call and did not go to the hospital with the officer. The officer knew the procedures available for obtaining a search warrant. Because it was late at night, an officer or other law enforcement person would have to call the judge and explain the situation and then go to the judge’s residence to obtain a signature on the warrant. Officer acknowledged that he knew that an ADA was on call that night who could have helped him prepare an affidavit and a warrant and contact the judge. He did not contact the ADA on call. He recalled an instance after this night when he had to obtain a warrant in which the process on that occasion took about two-and-a-half to three hours. The State stipulated that D’s blood was drawn without his actual consent and without a warrant. D preserved the issues raised in his motion to suppress for appellate review because through his motion to suppress and his motion to reconsider, D made timely and specific objections to support exclusion of the blood draw evidence. The Court held the blood results should have been suppressed because D refused to submit to a blood draw, the record did not contain any explanation for the failure to obtain a warrant or that any anticipated delay would have jeopardized the ability to obtain evidence of intoxication, and

Colura and warrantless blood draw improper b/c no consent

Colura v. State, 510 S.W.3d 218 (Tex. App. - Houston [1st Dist.] 2016, no pet.) Felony DWI case. Close to midnight, D was stopped for driving in a manner that suggested he was intoxicated. D made rapid multi-lane changes, pulled up quickly to two stop lights, and revved his engine and squealed his truck’s tires suggesting that he was going to race. D had slurred speech and glassy, bloodshot eyes, and alcohol on breath. Outside truck, D appeared to stumble. D admitted to having six beers and had six clues on the HGN. D refused WAT and OLS. Officer then read statutory warning to D, informed D that he would be placed in custody for suspicion of DWI, and requested a voluntary blood sample which D refused. The wrecker arrived within 15 minutes. Officer took D to a hospital about a quarter of a mile away where his blood was drawn involuntarily without a warrant. The officer decided to obtain the involuntary blood 37

State, 461 S.W.3d 611 (Tex. App. - Houston [14th Dist.] 2015, no pet.). In Donjuan, the doctor asked the defendant, “Can I draw your blood?” The defendant replied “yes.” Id. Based on this affirmative reply, the defendant gave express consent to the doctor, as the request would have indicated to a reasonable person that he was free to refuse. Id. “The facts in this case are notably different.” The nurse did not ask D for consent, nor did D make any statement that expressed consent to the blood draw. Court refused to infer a DWI suspect’s consent from his choice not to physically resist the medical professional conducting the blood draw. The record failed to indicate D impliedly consented to the blood draw. “This case, however, concerns the first part of the Schmerber inquiry.” “Neither party challenges the reasonableness of using a venipuncture blood draw in this case or the reasonableness of the blood draw’s execution.” The issue on appeal was whether the State was justified in requiring a blood draw. The trial court erroneously placed the burden on D to prove the blood draw was unreasonable. “Because the parties stipulated that no warrant was obtained and appellant challenged the State’s authority to conduct the blood draw without a warrant, the State had the burden to prove an exception to the warrant requirement.” While it is true that a D has the burden to overcome the presumption that venipuncture blood draws are reasonable under the 4th Amendment, “the burden is on the State in this case because appellant challenges its authority to perform the blood draw without a warrant.” The trial court’s emphasis on the means and procedures of the blood draw was misplaced because it overlooked the issue in dispute: whether the State had the authority to conduct the blood draw. Court refused “to recognize an exception to Article 38.23 based on an officer’s good-faith reliance upon something

the State relied heavily on the blood draw evidence. 14.

Fears and warrantless blood draw improper; delay/anger/no exigency

Fears v. State, 491 S.W.3d 884 (Tex. App. - Houston [1st Dist.] 2016, pet. ref’d) In a DWI case, the trial court erred in denying D’s motion to suppress evidence of his blood sample, as neither the delay required to obtain a warrant from one of 13 magistrate judges in the county nor D’s belligerence constituted exigent circumstances justifying a warrantless draw of D’s blood. “As the trial court’s erroneous denial of defendant’s motion to suppress evidence of his blood alcohol level obtained in violation of the Fourth Amendment contributed to his decision to plead guilty and to his subsequent punishment, the error was not harmless.” The judgment was reversed. 15.

Perez and warrantless blood draw improper; PO’s good faith insuff

Perez v. State, 495 S.W.3d 374 (Tex. App. - Houston [14th Dist.] 2016, no pet.) Felony DWI case. D admitted to having consumed at least one alcoholic drink that evening, officer detected alcohol on D’s breath, D failed HGN, and officer believed D was intoxicated. Officer obtained blood sample without a warrant. Court held that the taking of D’s blood sample without a warrant violated his 4th Amendment rights because State did not show that D consented. The federal good-faith exception did not apply because, since Tex. Transp. Code Ann. § 724.012 did not require that the officer obtain a blood draw without a warrant, the officer could not have relied in good faith on the statute to conclude that no warrant was required. The State argued the warrantless blood draw was authorized under Donjuan v. 38

other than a warrant because such an exception is inconsistent with the plain language of the Texas exclusionary statute.” 16. Molden and warrantless blood draw improper; PO’s good faith insuff

U-turn (with its emergency lights activated). After an investigation, D was arrested for DWI and refused breath/blood test. Since this was a DWI 3d, the arresting officer directed a phlebotomist at the jail to perform a mandatory blood draw in accordance with section 724.012(b)(3)(B) of the Texas Transportation Code. Court held that when blood was taken from D without his consent, there were no exigent circumstances, no warrant was issued, and the sole authority for drawing D’s blood was Tex. Transp. Code Ann. § 724.012(b)(3)(B), D’s refusal to consent revoked any prior implied consent. The exclusionary rule barred admission of the blood analysis results. The officer’s good faith was irrelevant because good faith reliance on a statute was not an exception to the Texas exclusionary rule, Tex. Code Crim. Proc. Ann. art. 38.23. Because there was no warrant for the blood draw, article 38.23's explicit good faith exception was inapplicable.

State v. Molden, 484 S.W.3d 602 (Tex. App. - Austin 2016, pet. ref’d) - Felony DWI 3d. Officer dispatched for a reckless driver call and saw D with erratic driving and FMSL. Officer initiated a traffic stop and saw several signs of intoxication. After SFST’s, officer arrested D for DWI. D agreed to provide a breath sample but failed to successfully give a sample because he refused to seal his lips on the intoxilyzer device which resulted in an invalid test. Officer deemed this to be a refusal so asked D for a blood specimen which D refused. Officer then discovered that D’s criminal history reflected two prior DWI’s and obtained a mandatory blood draw from D in accordance with section 724.012(b)(3)(B) of the Texas Transportation Code. Court held that D’s refusal to provide a blood specimen, after failing to provide a valid breath sample, revoked any prior implied consent under Tex. Transp. Code Ann. § 724.012. “Given the limited nature of the Texas good faith exception to the exclusionary rule, Tex. Code Crim. Proc. Ann. art. 38.23, the officer’s good faith reliance on the law or good faith reliance on existing appellate precedent were not recognized as exceptions.” “Reasonable reliance on a warrant was an exception to the exclusionary rule, but there was no warrant in this case and therefore article 38.23's explicit good faith exception was inapplicable.” 17.

18.

Swan and warrantless blood draw improper; PO’s good faith insuff

State v. Swan, 483 S.W.3d 760 (Tex. App. - Forth Worth 2016, no pet.) - Felony DWI 3d. A warrantless search and seizure of D’s blood purported to be justified only by Tex. Transp. Code Ann. § 724.012's requirement was unconstitutional. The non-consensual and warrantless search and seizure of D’s blood, which the officer conducted under § 724.012 and without facts supporting an independent exception to the warrant requirement, violated D’s rights under 4th Amendment. Good faith exception does not apply regarding what officer believed to be the law at the time of the search. Judgment affirmed.

Hill and warrantless blood draw improper; PO’s good faith insuff

State v. Hill, 484 S.W.3d 587 (Tex. App. - Austin 2016, no pet.) - Felony DWI 3d. D struck a patrol car that was executing a

19.

Roop and warrantless blood draw improper; PO’s good faith insuff

Roop v. State, 484 S.W.3d 594 (Tex. App. - Austin 2016, pet. ref’d) - Felony DWI 3d. An arresting officer who relied on Texas’s mandatory blood draw statute, Tex. Transp. Code Ann. § 724.012(b)(1) to take D’s blood following a collision violated D’s 4th Amendment expectation of privacy. “There was a magistrate on duty 24 hours a day at the municipal court building, which was about two-and-a-half miles from the scene of the accident, but the officer made no effort to obtain a search warrant.” “The statute required an officer to take a blood draw if an individual suffered serious bodily injury as a result of the DWI, but it did not mandate that he do so without a warrant; therefore, he did not act in good faith reliance on the statute.” Reversed and remanded. 20.

privacy in blood. Third party doctrine did not apply b/c surrender of blood to hospital was not result of voluntary choice. HIPAA was silent regarding protection of vials of blood b/c HIPPA protects identifiable health information as contained in medical records. 22.

Hyland v. State, 574 S.W.3d 904 (Tex. Crim. App. 2019) - D operating motorcycle with wife passenger and had accident that seriously injured D and killed wife. PO got search warrant (SW) and drew blood which showed D intoxicated. Judge did Franks hearing and excised parts of SW affidavit, and judge held remaining facts in affidavit did not support a PC finding that evidence of DWI would be found in D’s blood. The excising of false statements from affidavit does not trigger a heightened PC standard that the affidavit must “clearly” establish probable cause. The remaining facts in SW affidavit showed existence of PC because D was known to be driver of motorcycle recently involved in serious accident resulting in fatality and serious injuries to D, and PO smelled strong odor of alcohol on D’s person.

Kressin and officer incorrectly thought warrantless blood draw

Kressin v. State, 525 S.W.3d 389 (Tex. App. - Houston [14th Dist.] 2017, no pet.) The Fourth Amendment did not require suppression of evidence of the first of two blood draws taken from defendant after a fatal freeway accident because, despite contrary testimony from an officer, the record showed that the challenged blood draw was taken pursuant to a valid warrant. Judgment affirmed. 21.

Hyland and excised blood warrant affidavit “clearly” shows PC

Martinez and blood seized/tested beyond scope hospital blood draw

Blood draws with a warrant

Crider and blood draw warrant need not include both seize & test

Crider v. State, No. PD-1070-19 (Tex. Crim. App., September 16, 2020) - The introduction of evidence of the result of the chemical testing at Appellant's trial, in the absence of any explicit authorization for such testing in the search warrant (or in a separate search warrant), did not violate his Fourth Amendment rights. “In [State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019)], this Court recently reiterated what it had held in

State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) - The judge properly granted motion to suppress challenging seizure/search of D’s blood drawn at hospital for medical purposes b/c government’s testing was a warrantless search of D’s blood and no exception to warrant requirement applied. No evidence D intentionally abandoned the blood at hospital b/c D had subjective expectation of 40

previous opinions: that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of that blood. Id. at 290; see also State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim. App. 2016) (“[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.”); State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (“Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy.”) (citing Skinner v. Ry. Labor Exec.'s Ass'n., 489 U.S. 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)). Martinez is distinguishable from Crider in that in Martinez “the State obtained the already-extracted blood sample from a treating hospital and, without a magistrate's finding of probable cause, had that blood sample tested for intoxicants. Martinez, 570 S.W.3d at 281. Having previously acknowledged that a chemical test conducted at the behest of the State constitutes a discrete and separate invasion of a legitimate expectation of privacy, we held that the warrantless test was unconstitutional. Id. at 292.” In Crider, “Here, the State obtained the blood sample by way of a magistrate’s determination that probable cause existed to justify its seizure-for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate’s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face.”

Davis v. State, No. 01-19-00756-CR (Tex. App. - Houston [1st Dist.], July 30, 2020, no pet.) - “The Texas Code of Criminal Procedure provides deadlines for execution of search warrants, and it sets out the general rule that a search warrant must be executed within three days of the day it was issued, except in other circumstances not applicable here. See Tex. Code Crim. Proc. art. 18.07(a). The record established that Davis’s blood sample was obtained by the HCSO the same day that the warrant was issued. The State thus took control of the blood sample for purposes of obtaining blood evidence relevant to Davis’s DWI charge at that time and, therefore, it was executed within the timeframe allowable under article 18.07. See id.; id. art. 18.06(b) (describing requirements for execution of warrants). Davis points to no authority, nor could we find any, providing additional deadlines for the testing of blood collected under these circumstances.”

State v. Hodges, No. 07-19-00237-CR (Tex. App. - Amarillo, January 8, 2020, pet.

Arellano and blood warrant lacking legible magistrate’s signature

State v. Arellano, 600 S.W.3d 53 (Tex. Crim. App. 2020) - “Code of Criminal Procedure Article 18.04(5) requires, in part, that a search warrant contain a legible magistrate’s signature. So what effect does an illegible magistrate’s signature have upon the applicability of the statutory good-faith exception? See Tex. Code Crim. Proc. art. 38.23(b) (setting forth statutory good-faith exception). The short answer is none. Therefore, we vacate the judgment of the court of appeals and remand this case to that court for further proceedings.” 4.

Davis and length of time to test after blood seized with warrant 41

Hodges and blood draw warrant void b/c unsworn affidavit

ref’d) - SW was issued to draw blood from D for DWI. Affidavit in support of SW was signed by PO1 at direction of PO2 who then signed the jurat. Both PO’s testified at suppression hearing that no one administered any type of oath to PO1, and the magistrate who issued the SW did not administer any oath to assess the truthfulness of PO1's statements. “[B]efore a written statement in support of a search warrant constitutes a ‘sworn affidavit,’ the requisite oath must be administered before a magistrate or other qualified officer.” The court of appeals held that the trial judge properly granted the motion to suppress because the SW was void because it was founded on an unsworn affidavit. 5.

P placed the gauze on D’s arm, placing the side of the gauze that had been facing up when it was sitting on the sharps container on D’s arm. P labeled the vials and then removed an adhesive bandage from the top of the sharps container. The bandage’s wrapper was partially opened, and the exposed part of the bandage had been sticking to the container. P applied the bandage to D’ss arm then threw the bandage wrapper and gloves into the trash can. D filed a motion to suppress. D claimed that, unlike in Schmerber, his blood draw exposed him to an unjustifiable risk of infection because P used a sharps container as a workstation. Trial judge held, “I have no problem with the sealed sterile gauze used to wipe his arm or the needle or anything like that, but that bare four-by-four gauze on top of the sharps container and that open Band-Aid adhered to it, you know, that are applied directly to the puncture site, to me that’s just way beyond the pale so I do grant the Motion to Suppress.” The court of appeals held, “As the State admits, using a biohazard container as a workstation for a blood draw is not ideal. However, even viewing the evidence in the light most favorable to the trial court’s ruling, we conclude that [D] failed to meet his burden of showing that [P’s] actions were so egregious that they created an ‘unjustified element of personal risk of infection and pain’ that rose to the level of violating the Fourth Amendment.” “Because the record before us does not demonstrate that Fikes’s blood draw violated the Fourth Amendment by subjecting him to an unjustified risk of infection, we conclude that the trial court abused its discretion in granting his motion to suppress the results of the blood analysis.”

Fikes and blood draw unreasonable if risk of infection

State v. Fikes, 585 S.W.3d 636 (Tex. App. - Austin 2019, no pet.) - Phlebotomist (P) drew D’s blood. Before the blood draw, P arranged various items on the top of the “sharps container,” also called the “biohazard bin.” D entered room and P put on a pair of gloves from the top of the sharps container. While wearing the gloves, P ran P’s hands through P’s hair and put on a sweater. D sat in a chair near the sharps container and trash can. P applied tourniquet to D’s arm that P removed from the top of the sharps container. P then removed two unopened packages of disinfectant wipes from the top of the sharps container, opened one package, and wiped D’s arm. P threw the package and used wipe into the trash can, opened the other package, wiped D’s arm again, and threw the second package and wipe into the trash. P then removed a piece of gauze that was not in a package from the top of the sharps container and placed it on the armrest of D’s chair and removed a syringe in a package from the top of the sharps container, opened the package, and filled two vials with D’s blood. After drawing the blood, 42

Trial

Sanchez and proof needed for

instruction under 38.23(a).

TCCP 38.23(a) jury instruction Sanchez v. State, No. 04-18-00302-CR (Tex. App. - San Antonio, April 17, 2019) PO saw D commit two distinct traffic violations: (1) failure drive on right side of the road in violation of section 545.051(a)(2); and (2) failure signal lane change in violation of section 545.104(a) of Tex. Transp. Code. See Tex. Transp. Code Ann. § 545.051(a)(2). TCCP Article 38.23(a) states that illegally obtained evidence is inadmissible. A 38.23(a) jury instruction is limited to disputed issues of fact material to D’s claim of constitutional or statutory violation that renders evid inadmissible. Three requirements must be met before D entitled to 38.23(a) jury instruction: (1) evidence heard by jury must raise an issue of fact; (2) evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to lawfulness of the challenged conduct in obtaining the evidence. “To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.” “Simply raising the issue via crossexamination is insufficient to create a factual dispute for purposes of an article 38.23(a) instruction.” “If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law.” “And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The D failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the D turned left without signaling. Without such evidence, D was not entitled to a jury

Olsen and proof needed for TCCP 38.23(a) jury instruction

Olsen v. State, No. 01-18-00281-CR (Tex. App. - Houston [1st Dist.], April 14, 2020, no pet. h.) - D convicted of fel DWI with child passenger. During trial, D did not contest D exhibited clues on the SFST’s consistent with intoxication. D’s results on the HGN, WAT, and OLS were consistent with intoxication. PO’s subjective perception of D’s physical and mental faculties was not a fact supporting probable cause. D’s performance on the SFST’s, however, is a material fact supporting probable cause for D’s arrest but D did not contest this at trial or on appeal. Because D “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” Because D “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [D] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [D’s] request to submit an Article 38.23 instruction to the jury.” 3.

Smith and failure to get ruling on Fourth Amendment issue

Smith v. State, 499 S.W.3d 1 (Tex. Crim. App. 2016) - Bench trial. DWI conviction based, in part, on warrantless mandatory blood draw conducted pursuant to Chapter 724 of the Health and Safety Code. D waived this error because D never obtained a ruling on issue. The State offered the blood results into evidence and the TCCA stated, “The trial judge observed that the officer followed the statute, so ‘[t]he only question is whether 724.012 is constitutional, whether it 43

passes the muster of the Federal Constitution.’” “Defense counsel responded that his ‘brief research did not indicate that it had ever been brought up.’” “The trial judge then stated, ‘Okay. Well, I’ll carry that. I’ll carry that because I think that’s an interesting issue.” Later in the bench trial, the trial judge stated the defense could brief this issue. After closing arguments, the trial court stated, “Well, you’re going to have to brief me on the issue if you want me to consider it. I need to know what the Courts have said and how far it’s gone up.” The TCCA stated, “Nothing in the record suggests that the constitutional issue was ever mentioned at the trial level again.” After finding D guilty, the trial judge reiterated that the Fourth Amendment issue had not been resolved. D never asked for a ruling on the issue, nor did he object to the trial judge’s failure to rule. Because he failed to obtain a ruling on the 4th Amendment complaint, D failed to preserve error with respect to that complaint. Even if D had obtained a ruling on his objection to the blood vial itself, the test results were already in evidence. 4.

‘belong to’ the patient, such that he has Fourth Amendment standing on that basis to complain of the State’s warrantless acquisition of them. In the absence of briefing on that issue, we will not address it sua sponte on discretionary review.” The TCCA next addressed the issue of whether a D may move to suppress blood extraction and blood testing by a private party. The TCCA stated that “when the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” If the State neither takes nor tests the blood, “‘the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on [its] own initiative,’ such as the one that the hospital conducted in the context of treating Appellee.” The D had no standing to “complain of either the blood extraction or the blood alcohol analysis themselves.” The TCCA stated that the States “obtaining medical records of privately conducted blood extraction and analysis is much less invasive than either the extraction or the chemical analysis themselves.[] In light of these considerations, we concluded that, ‘whatever interests society may have in safeguarding the privacy of medical records [in general], they are not sufficiently strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.’” The TCCA next addressed the issue of HIPAA. The TCCA stated that a grand jury subpoena is an exception to HIPAA. Section 164.512(f)(1)(ii)(B) of Title 45 of the Code of Federal Regulations. “Under this provision, a DWI offender would have no legitimate expectation of privacy sufficient to block a health care provider from disclosing otherwise protected health care information when required to do so under the terms of a grand

Huse and the state obtaining medical records for blood

State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016) - DWI case in which State obtained evidence of D’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The first issue the TCCA addressed was D’s standing to complain about the State’s obtaining D’s medical records. “This Court has held that, when it comes to legal representation, ‘[t]he client’s file belongs to the client[,]’ not his attorney.” In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). “Appellee has made no analogous argument that, similarly, a patient’s medical records 44

jury subpoena.” The TCCA stated that Art. 38.23(a) of the TCCP applies in such a case if “the grand jury subpoenas duces tecum somehow failed to comply with the provisions in the Texas Code of Criminal Procedure that authorize their issuance. In short, whether HIPAA was violated wholly devolves into a question of whether one or both of the two grand jury subpoenas duces tecum that issued in this case failed to comport with state law.” With respect to comporting with state law, the TCCA stated grand juries in Texas have the constitutional authority to investigate misdemeanor offenses such as D’s. See Tex. Const. art. V, § 17 (“Grand juries empaneled in the District Courts shall inquire into misdemeanors . . .”). Also, “[a] subpoena may summon one or more persons to appear . . . on a specified day . . . before a grand jury[.]” Tex. Code Crim. Proc. art. 24.01(a)(2)(C). “Either the foreman of the grand jury or ‘the attorney representing the State’ has the authority to ‘issue a summons’ (by which is apparently meant a subpoena) on the grand jury’s behalf.” Tex. Code Crim. Proc. arts. 20.10 & 20.11; George E. Dix & John M. Schmolesky, 41 Texas Practice: Criminal Practice and Procedure § 23:27 (3d ed. 2011). “The subpoena may require the witness to appear and produce records and documents.” Tex. Code Crim. Proc. art. 20.11; see also Tex. Code Crim. Proc. art. 24.02 (“If a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.”); Dix & Schmolesky, § 23:30, at 783 (“A grand jury subpoena can, under the general authority of Article 24.02 of the Code of Criminal Procedure, direct the witness to bring specified instruments, writings, or ‘other thing[s]’ in his possession to the grand jury. Such a subpoena is a subpoena duces tecum.”). And finally, “[t]he grand jury may compel the production of

evidence . . . as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.” “Beyond the bare-bone provisions cited above, the Code of Criminal Procedure provides little guidance with respect to the proper (or improper) use of the grand jury subpoena power.” The TCCA stated “there are at least two purposes to which a prosecutor may not legitimately direct a grand jury subpoena. First, he may not use the grand jury subpoena as a subterfuge to obtain an investigative interview in his office – a so-called ‘office subpoena.’” “Second, it has been widely recognized by commentators and courts that have addressed the issue squarely ‘that it is improper to use the grand jury for the purpose of preparing an already pending indictment for trial . . .’” “However, commentators have also suggested that a grand jury may continue to investigate other potential charges . . .” Tex. Code Crim. Proc. Ann. art. 38.23(a) did not mandate that the medical records of D’s blood alcohol concentration be suppressed because the State obtained the medical records in the absence of any specific statutory violation and in the absence of any manifest abuse of the grand jury’s ordinary investigative function, when the first grand jury subpoena duces tecum was proper and was squarely in keeping with the provisions of the Tex. Code Crim. Proc. Ann. art. 20.10 and 20.11. Judgment affirmed. 5.

Trigo and right of confrontation regarding intoxilyzer results

Trigo v. State, 485 S.W.3d 603 (Tex. App. - Houston [1st Dist.] 2016, pet. ref’d) At trial, the arresting officer (AO) who administered the SFST’s and the BTO who administered the breath test both testified. A DPS technical supervisor (TS) testified at 45

Williams v. State, 585 S.W.3d 478 (Tex. Crim. App. 2019) - D charged with intox manslaughter for killing a pedestrian. Pursuant to TCCP Article 38.41, the State offered an analysis of D’s blood without calling the analyst who tested the blood as a sponsoring witness. The State’s notice was 15 pages of records comprising the results of NMS’s analysis. D did not lodge a pre-trial objection to the use of the certificate. When the State, during trial, offered the NMS report into evidence without calling anyone from NMS as a sponsoring witness, D objected that admitting the report without the testimony of an NMS analyst would violate his Sixth-Amendment right to confrontation. D acknowledged that the State’s timely filed certificate of analysis might, in theory, have operated to defeat his confrontation objection, he argued that the certificate in this case did not “substantially compl[y]" with Article 38.41 b/c the certificate of analysis must contain a sworn statement from the analyst who actually conducted the tests. The State’s certificate did not establish that the named analyst conducted or observed any of the tests done on D’s blood. The TCCA held that because the certificate substantially complied with Article 38.41 (at least in the particular, narrow regard D complained about on appeal), and was filed more than twenty days before trial, D “was required to object to the use of the certificate in a timely manner or risk losing his ability to assert his right of confrontation at trial. We leave for another day an examination of the procedural-default consequences of a defendant's failure to timely object to a certificate of analysis that does not substantially comply with Article 38.41.”

trial. D objected that the TS was not a TS at the time of the D’s breath test and was not overseeing the intoxilyzer machine used to test the D. The D made a confrontation clause objection to this TS testifying. The TS testified that she reviewed the business records of the machine used to test the D and, based upon these records, the machine was operating as it should when the D was tested. It was the TS’s opinion that the machine was in working order when the D was tested. The Court held no violation of the confrontation clause since the AO and BTO testified and were subject to crossexamination. The Court stated that if the State had not called the BTO “but instead attempted to introduce her report through another witness, there may have been a confrontation problem under the cases upon which appellant relies.” Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (“Without having the testimony of the analyst who actually performed the tests, or at least one who observed their execution, the defendant has no way to explore the types of corruption and missteps the Confrontation Clause was designed to protect against.”). “But the type of testimony [the TS] provided was expressly contemplated as acceptable, non-testimonial evidence not subject to the Confrontation Clause in Melendez-Diaz.” Courts have held that “a defendant does not have a right to confront the specific technical supervisor responsible for the breathalyzer at the time of the breath test.” The trial court did not abuse its discretion by allowing the TS to testify from someone else’s records that the intoxilyzer machine used to perform the breath test on D was operating properly because the testimony was non-testimonial evidence not subject to the confrontation clause. 6.

Williams and right of confrontation regarding blood analyst

Gore and no right confrontation for blood analyst if only raw data used Gore v. State, No. 09-18-00368-CR

(Tex. App. - Beaumont, July 15, 2020, no pet.) - The opinions the State elicited from the analyst’s supervisor depended on supervisor’s “expertise based on her review of the raw data generated by the machine used to test Gore’s blood. The record simply does not show the State attempted to use [supervisor] to testify as a surrogate for [analyst] and through [supervisor], introduce the statements in [analyst’s] report into the evidence admitted before the jury during Gore’s trial.” Bullcoming and Burch “are distinguishable from the facts in the record of Gores trial. In those cases, the trial court in each case admitted a lab report written by an individual who did not testify in the defendant’s trial. By admitting the lab reports and testimony from the State’s expert about the opinions the individuals reached in their report when those same individuals did not testify in the trials, both reviewing courts found the trial courts erred by allowing the testimonial statements of individuals who did not testify to be introduced through the expert the State called since doing so violated the Confrontation Clause. In Gore's case, [supervisor] relied on raw data generated by the equipment [analyst] used when she tested Gore's blood. The State never offered [analyst’s] report or Brown's opinions into evidence during Gore's trial. Instead, [supervisor] testified she was basing the opinions she intended to express on her independent review of the raw data generated by equipment used in the lab. The trial court was entitled to accept the testimony [supervisor] provided in the hearing the trial court conducted on Gore's objections, and the court had the discretion to admit [supervisor’s] testimony about the opinions [supervisor] expressed in the trial. We conclude the raw data [supervisor] relied on was not testimonial, so admitting [supervisor’s] opinion based on [supervisor’s] review of the raw data from the gas

chromatograph [analyst] sed to test Gore's blood did not violate Gore's rights under the Confrontation Clause.” 8.

Diamond and no Brady viol failure reveal analyst’s error in other case

Diamond v. State, No. PD-1299-18 (Tex. Crim. App., June 10, 2020) - Lab analyst properly analyzed D’s blood for alcohol content. After D’s trial, it was revealed that analyst had – before the trial – “mistakenly certified a blood alcohol analysis report in an unrelated case where a police officer had mislabeled the submission form accompanying a blood sample. Due to her self-report of the erroneous certification to her supervisor, [analyst] had been temporarily removed from casework at the time of Appellant’s trial so she could research and document this incident. The prosecutors in this case, unaware of the problem in the unrelated case, failed to disclose this information to Appellant prior to [analyst’s] testimony in Appellant’s trial. The question before us is whether this evidence is material. The post-conviction habeas court concluded it was not and denied Article 11.072 relief. Based upon the record before us, we agree.” There was overwhelming evidence of D’s intoxication to support the jury’s finding of guilt regardless of the analyst’s testimony; the undisclosed evidence impeaching the analyst would not have impeached the testimony describing D’s intoxicated state; the habeas court’s unchallenged findings of fact regarding the analyst’s analysis and testimony also supported the conclusion that the undisclosed evidence was not material to the jury’s special-issue finding that D’s BAC was 0.15 or more; the analyst followed all of the lab’s standard operating procedures when analyzing D’s blood, and analyst’s analysis of D’s blood sample revealed a blood alcohol level of 0.193. 47

Rodgers and flawed felony DWI indictment

11.

Meza and must prove 0.15 at time of analysis

Ex parte Rodgers, No. WR-89,477-01 (Tex. Crim. App., April 8, 2020) - On habeas, D claimed illegal sentence because should have been sentenced for misdemeanor DWI, not felony DWI given problem with indictment. Indictment alleged two prior DWI’s to make it a felony DWI, plus the indictment alleged two additional prior DWI’s to make the D habitual 25-life. D pleaded guilty to F2, since state waived one of the habitual prior DWI’s, and was sentenced to 15 years. The TCCA recognized that the indictment was flawed as follows: “The State pled two prior DWI offenses as jurisdictional enhancements, raising the level of the offense charged to a third-degree felony. Both of those prior jurisdictional enhancements were alleged to have occurred on November 10, 1999. But the State made a mistake in its allegation of the second jurisdictional prior DWI. It essentially alleged the same prior DWI conviction cause number twice, as the jurisdictional-enhancement convictions, with just a slight variation in the letters included at the end of each cause number – F-9652378-IW and F-9652378-HW. The first jurisdictional prior DWI, alleged as F-9652378-IW, reflected a genuine prior conviction entered against Appellant on November 10, 1999. But there simply was no prior conviction under a cause number F-9652378-HW.” The error here, however, was harmless.

Meza v. State, 497 S.W.3d 574 (Tex. App. - Houston [1st Dist.] 2016, no pet.) – MA DWI-0.15 accident. For MB DWI, State must prove D operated a motor vehicle while intoxicated. For MA DWI-0.15, State must prove intoxication through alcohol concentration only at the time of the analysis rather than the time of driving, and there is no option for proving the necessary intoxication through loss of mental or physical faculties. The jury charge in this case, however, added additional requirement that D have a BAC of 0.15 at or near the time of the accident instead of only “at the time the analysis was performed.” For a MA DWI-0.15 conviction, the statute only requires the State prove an analysis of a specimen of blood/breath/urine showed alcohol concentration of 0.15 or more at the time the analysis was performed. The statute never requires retrograde extrapolation for a MA DWI conviction. It was the jury charge that the State requested in this case that imposed the additional requirement in this particular case. Court refused to reform judgment to reflect MB DWI conviction b/c only fact that the jury found in convicting D of MA DWI was that D’s BAC was at least 0.15 at the time of testing and at or near the time of the accident. Remanded for new trial on MB DWI.

10.

Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018) - “The State’s DWI information in this case alleged that Appellant, Jason Ramjattansingh, had committed the offense of driving while intoxicated. It also alleged that he had an alcohol concentration level of 0.15 or more ‘at the time the analysis was performed,’ as the

12.

Oliva and prior DWI is not an element of DWI 2d

Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018) - Proof of the existence of a single prior conviction in a prosecution for misdemeanor DWI is a punishment issue, not an element of the offense. 48

Ramjattansingh charge

and

0.15

jury

Class A DWI statute requires. But the information went further, alleging that Ramjattansingh also had this alcohol concentration level ‘at or near the time of the commission of the offense,’ which the statute does not require. The jury charge tracked the information, requiring the jury to find this extra element.” “A person commits Class B misdemeanor DWI if the person is intoxicated while operating a motor vehicle in a public place. ‘Intoxicated’ means either ‘not having the normal use of mental or physical faculties’ by reason of ‘the introduction of alcohol’ (or ‘any other substance’) into the body, or ‘having an alcohol concentration of 0.08 or more.’ In order to prove the offense of driving while intoxicated, the State must prove that the defendant operated a motor vehicle while intoxicated. If the State intends to rely upon the per se definition of intoxication, it must prove that the defendant had an alcohol concentration of at least .08 at the time of driving. If the State does not intend to rely upon that definition of intoxication, it need only prove intoxication at the time of driving by showing that the defendant had experienced a loss of the normal use of his or her mental or physical faculties.” “But, if the State also proves that a defendant had ‘an alcohol concentration level of 0.15 or more at the time the analysis was performed,’ the offense is a Class A misdemeanor. Unlike the Class B offense of driving while intoxicated, this additional statutory requirement only requires that the State prove that the defendant had an alcohol concentration level of at least 0.15 at the time the analysis was performed. The hypothetically correct jury charge for the Class A misdemeanor alleged in this case requires proof of • Class B driving while intoxicated (that is, operating a motor vehicle in a public place while ‘not having the normal use of mental or physical faculties’ by reason of the

introduction of alcohol into the body, or ‘having an alcohol concentration of 0.08 or more’); and • ‘an alcohol concentration level of 0.15 or more at the time the analysis was performed’ but not • ‘an alcohol concentration level of 0.15 or more at or near the time of the commission of the offense.’” “Appellant did not anchor his case to challenging the alcohol concentration at the time of the test as compared to the concentration at or near the time of driving. Appellant’s defensive theory was that the State could not prove he had committed even a Class B DWI. According to Appellant, the State could not wheel him because there was no evidence establishing when Appellant was driving. Period. Because the variance between the non-statutory allegation and the proof presented at trial is immaterial, the hypothetically correct jury charge need not include it.” “We measure the sufficiency of the evidence against the elements of the offense as they are defined in the hypothetically correct jury charge. If a jury instruction includes the elements of the charged crime but incorrectly adds an extra, made-up element, a sufficiency challenge is still assessed against the elements of the charged crime, regardless of the source of the extra element. We reverse the court of appeals’ judgment and remand the case to that court for proceedings consistent with this holding.” 13.

Ashby and TFMPP admissibility

Ashby v. State, 527 S.W.3d 356 (Tex. App. - Houston [1st Dist.] 2017, pet. ref’d) DWI case and blood test performed which showed TFMPP in blood. D moved to suppress TFMPP finding and requested a Kelly hearing to determine the reliability and relevance of such evidence. “To be deemed reliable under Kelly, evidence derived from a scientific theory must meet the following three 49

criteria: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Doctor testified about (a) and (b) in that he explained the underlying scientific theory relied upon to determine whether TFMPP was present or absent in D’s blood sample. He offered a detailed abstract explanation of the scientific process used for analyzing the presence or absence of TFMPP in a blood sample. He testified that this technique for blood testing is generally accepted in the scientific community. He further informed the court that the process has been subject to peer review and recently published in the Journal of Applied Toxicology. Asked whether he had followed that same protocol in this instance, he asserted that he followed protocol. This testimony was sufficient to establish the reliability of his blood analysis and his conclusion that TFMPP was present in D’s blood under Kelly. D’s challenged whether evidence showing the presence of TFMPP in his bloodstream would assist the trier of fact in understanding the evidence and in making a factual determination regarding whether he was intoxicated where we know little of the pharmacokinetics of TFMPP and where the specific amount of TFMPP in his bloodstream is unknown. D cited Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) for the proposition that “without evidence [of] the level of dosage, exact times of ingestion, or the half-life of the drug in the human body, the usage of a particular drug was not relevant to a person’s intoxication.” Id. D, however, was charged with driving while intoxicated, but unlike in Layton, the charge was not limited to intoxication by consumption of alcohol. In this case, evidence that TFMPP was present in Ashby's blood sample is relevant because it tends to make it more probable that he was intoxicated by reason of

introduction of a controlled substance or some combination of substances. D also cited DeLarue v. State, 102 S.W.3d 388 (Tex. App. - Houston [14th Dist.] 2003, pet. ref’d), for the proposition that a failure to extrapolate a controlled substance to the time of an event at issue can render evidence showing mere presence of a substance inadmissible.” Id. at 401. In DeLarue, the court concluded that the admission of evidence of marijuana in defendant’s bloodstream to show intoxication without a Daubert-Kelly hearing was error, because without proof of scientific reliability, the evidence was more prejudicial than probative. Id. The trial court here did what the trial court in DeLarue failed to do: the trial court held a Daubert-Kelly hearing to determine the reliability of the State’s TFMPP evidence. Though no attempt was made to quantify the presence of TFMPP in D’s blood sample and no attempt was made to show when the TFMPP was introduced into his system, the State did attempt to show D was under the influence of TFMPP at the time of the traffic stop. Secondly, DeLarue does not categorically require the quantification of a controlled substance in a defendant's bloodstream in order to prove intoxication. The DeLarue court did note that evidence can be rendered inadmissible by a “failure to extrapolate the presence of a controlled substance back to the time of an accident – because such failure can render the evidence insufficient under a Rule 403 analysis.” However, the case supporting that proposition – Manning, 84 S.W.3d at 22 – was subsequently reversed by the Court of Criminal Appeals, which cautioned against confusing sufficiency with admissibility. See Manning, 114 S.W.3d at 927. Here, though evidence that an unquantified amount of TFMPP was in D’s bloodstream at the relevant time may not have been sufficient, by itself, to prove that the 50

observed loss of the normal use of his mental and physical faculties resulted from ingesting TFMPP, it is nevertheless some evidence that D consumed TFMPP. The failure to quantify TFMPP in D’s bloodstream lessens the inherent probative force of the evidence, but it does not render it unreliable or irrelevant under Rule 702. Finally, D relied on State v. Guzman, 439 S.W.3d 482 (Tex. App. - San Antonio 2014, no pet.), to argue that Rule 702 requires the analyst who tests the blood sample to be capable of offering testimony concerning the effects of the drug. In Guzman, the San Antonio Court of Appeals wrote: “our case law is clear that with respect to blood tests, the expert who must satisfy the criteria in any particular case is the analyst who tests the blood sample, not the nurse who performs the blood draw.” Id. Unlike in Guzman, here, no testimony concerning the relevance and reliability of scientific testing of the blood sample was solicited from the phlebotomist, who performed the blood draw. Thus, Guzman is of limited value. Rather than relying on testimony from the phlebotomist, in this case, the State relied on the testimony of two scientists who testified about the process of analyzing D’s blood and explained the significance of that analysis and its result. Neither Guzman nor the cases relied upon by Guzman foreclose the use of two scientific experts involved in the analysis of a blood sample from testifying concerning their respective parts of the analysis. The Court concluded that the trial court did not err in allowing the State to introduce evidence of TFMPP in D’s blood. 14.

of the van was not present. The ignition key had been removed and the owner of the van identified D as the last known driver. D was detained approximately fifteen minutes following the arrival of officers at the scene of the accident and had the keys to the van. D claimed that the key could be removed from the van while the vehicle was running. The owner and witnesses testified that the van could only be driven with the key in the ignition. D admitted to his girlfriend the driving that night and that “something unexpected happened to him,” and resulted in a collision. Officers saw D 15 minutes after accident with red, bloodshot eyes, slurred speech, and odor alcohol. At station, HGN showed six clues. Taken in the light most favorable to the verdict, a rational fact finder could have found beyond a reasonable doubt that appellant was intoxicated both during and after the time the accident took place. D admitted to his former girlfriend that while driving the van on the night in question, he made too wide of a turn and had a collision, running into the bus stop. The lead investigator testified that someone in full command of his mental and physical faculties while driving within the speed limit would have been able to navigate the turn. The introduction of alcohol into the driver's system was a primary factor in causing the accident. D claimed that slippery roads and not his intoxication caused the accident. The State is not required to prove that intoxication is the sole cause of the accident. When concurrent causes are present, the “but for” requirement under the Texas Penal Code is satisfied when either (1) the accused’s conduct is sufficient by itself to have caused the harm; or (2) the accused’s conduct coupled with another cause is sufficient to have caused the harm. Whether such a causal connection exists is normally a question for the jury’s determination. The State was required to

Matamoros and intoxication manslaughter and causation

Matamoros v. State, 500 S.W.3d 58 (Tex. App. - Corpus Christi 2016, no pet.) Officers at accident scene saw that the driver 51

prove that D’s intoxication, and not just his operation of a vehicle, caused the fatal result. A jury may draw reasonable inferences regarding the ultimate facts from basic facts. The evidence was sufficient to sustain D’s conviction for intoxication manslaughter because the State established that D was the operator of the van at the time of the accident, that he was intoxicated both during and after the time the accident took place, and that death occurred by reason of intoxication. 15.

written motion for continuance, because the court’s option to allow D’s expert to testify out of order was unreasonable as the purpose of the expert’s testimony was to rebut testimony given by the State’s expert witnesses, D’s motion was “not made for delay” but was instead made to allow D’s expert to testify at trial, the expert’s testimony was “material,” as it would have related to the reliability of both the results of the intoxilyzer machine and the extrapolation evidence given by the State’s expert, and D was prejudiced as a result of the trial court’s denial of the motion as the expert’s testimony would have been favorable and was essential to the defense. Judgment reversed, and cause remanded for new trial.

Burg and must object to improper DL suspension to raise on appeal

Burg v. State, 592 S.W.3d 444 (Tex. Crim. App. 2020) - Tex. R. App. P. 33.1 required a contemporaneous objection to preserve error for appeal, and because D had opportunity and failed to object to trial judge’s order suspending his license, issue was not preserved for appeal. 16.

17.

Bara and double jeopardy with two children in car

State v. Bara, 500 S.W.3d 582 (Tex. App. - Eastland 2016, no pet.) - Felony DWI with a child passenger. Two children in car at time, so two indictments against D – one for each child. D convicted on first indictment and State sought to try D for second indictment. D claimed jeopardy barred. Court held that double jeopardy barred prosecution of D for DWI with a child passenger because he had already been found guilty of DWI with a child passenger and sentenced for the same incident in another charge. Although there were two children, there was only one incident of driving. The gravamen of the offense was the act of driving, not the presence of the children. Both the United States Constitution and the Texas Constitution protect individuals from multiple punishments for the same offense. The double jeopardy clause prevents (1) a second prosecution for the “same offense” after acquittal, (2) a second prosecution for the “same offense” after conviction, and (3) multiple punishments for the “same offense.”

Rodriguez-Cruz and reversible error to deny motion continuance

Rodriguez-Cruz v. State, 590 S.W.3d 29 (Tex. App. - San Antonio 2019, no pet.) During trial, State moved to continue the trial because PO who did SFST’s was sick in emergency room and unable to testify. D objected b/c the defense’s expert witness was on a plane and was arriving in town that day to testify. The trial judge granted the State’s motion and ordered the trial continued until the next day. The next day, the AO and TS testified and the state rested that afternoon. The D then filed for a continuance explaining that the defense’s expert witness would not be able to testify that day b/c of the State’s continuance and asked the trial court to continue trial until Monday. The trial judge denied D’s motion. The court of appeals held that the trial judge abused its discretion in denying D’s 52

The State charged D with two violations of the same statute. If each alleged violation of the statute was a separate “allowable unit of prosecution,” there is no double jeopardy clause violation. Whether an offense is a separate “allowable unit of prosecution” depends on legislative intent. For the offense in this case, legislative intent was as the allowable unit of prosecution, one offense for each incident of driving or operating a vehicle. No prosecution allowed for second indictment. 18.

the trial court did not err in its submission of the charge in the disjunctive and the jury was not required to agree as to loss of normal use or 0.08. 19.

Couthren and deadly finding disapproved

weapon

Couthren v. State, 571 S.W.3d 786 (Tex. Crim. App. 2019) - D convicted felony DWI and jury made finding of deadly weapon (DW) – vehicle. D claimed insufficient evidence DW because no evidence D operated vehicle in a reckless or dangerous manner. TCCA agreed. There was no evidence D operated vehicle in reckless/dangerous manner. PO’s did not attempt to locate evidence of brake marks, skid marks, road damage, or other circumstance demonstrating manner in which D was operating vehicle. Even though D may have been reckless in not taking hit pedestrian directly to hospital, this did not demonstrate D operated vehicle in manner that was reckless or dangerous.

Nelson and unanimity

Nelson v. State, 504 S.W.3d 410 (Tex. App. - Eastland 2016, pet. ref’d) - Felony DWI child in car. D claimed that trial court should have required jury unanimity as to whether D was intoxicated by reason of not having the normal use of his mental or physical faculties or by reason of having an alcohol concentration of 0.08 or more. Texas law requires a unanimous jury verdict in felony criminal cases. Unanimity means that each and every juror agrees that the D committed the same, single, specific criminal act. The conduct prohibited under the statute is the act of driving while in a state of intoxication. “The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission.” Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007). Further, “different modes of commission may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive.” Id. The definitions for intoxication under Section 49.01 “set forth alternate means by which the State may prove intoxication, rather than alternate means of committing the offense.” Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). Because Section 49.01 sets forth alternate means of proving intoxication,

20.

Moore and deadly weapon finding approved

Moore v. State, 520 S.W.3d 906 (Tex. Crim. App. 2017) - Felony DWI repeater and finding of deadly weapon. D claimed the evidence insufficient to support the deadly weapon finding in the judgment. D’s SUV constituted a deadly weapon under TPC § 1.07(a)(17)(B) because D used SUV in course of committing felony DWI. D was DWI and speeding almost three-and-a-half times the legal limit, accident was at 6:30 p.m. at a red light, impact caused a collision that pushed another SUV into the intersection among other cars with right-of-way, and the other SUV could have been broadsided. While dark, D rear-ended a car. D’s BAC 0.27. Girl in a car had bruises and scratches and suffered crying breakdowns at 53

school as result of the accident but no loss or impairment of a bodily member or organ because of the accident. Car was totaled and photos show damage to both the rear and front of car, primarily to the trunk and hood but the photos provide no insight on why insurance company decided to declare vehicle a total loss, and no one testified about why that particular damage rendered her vehicle a total loss. Pursuant to TPC § 1.07(a)(17)(A), an automobile is not “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury[.]” An automobile, however, may, “in the manner of its use or intended use [be] capable of causing death or serious bodily injury.” TPC § 1.07(a)(17)(B). “In any felony offense in which it is ‘shown’ that the defendant ‘used or exhibited [a] deadly weapon[,]’ the trial court ‘shall’ enter a deadly weapon finding in the judgment.” TCCP art. 42.12, § 3g(a)(2). A deadly weapon finding affects a felony D’s eligibility for community supervision, parole, and mandatory supervision. Id.; Tex. Gov't Code §§ 508.145(d)(1), 508.149(a)(1), & 508.151(a)(2). To justify a deadly weapon finding under 1.07(a)(17)(B), the prosecution “need not establish that the use or intended use of an implement actually caused death or serious bodily injury; only that ‘the manner’ in which it was either used or intended to be used was ‘capable’ of causing death or serious bodily injury.” Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008). There is no requirement that a D actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim. App. 2017). Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001) concerned whether an automobile was a deadly weapon in a felony DWI case when nobody was injured but the D’s car “nearly hit another vehicle head-on

and . . . a collision was avoided only because the other driver took evasive action.” Id. at 132. A deadly weapon finding was allowed even thought there was no death or serious bodily injury. Id. “To sustain a deadly weapon finding requires evidence that others were endangered, and not merely a hypothetical potential for danger if others had been present.” Id. “Because near-certain death or serious bodily injury was narrowly averted only because of the other driver's evasive action, we concluded (by adopting the lower court’s opinion) that the near-collision sufficed to establish more than a merely hypothetical danger of death or serious bodily injury to another.” Id. There was little evidence of the manner of D’s driving prior to the stop. The D drove briefly on the curb and then nearly causing a head-on collision. Mann, 13 S.W.3d at 91. In the case at bar, the facts are more compelling than in Mann. A rational fact-finder could infer D “was using his motor vehicle in this case in a manner that was capable of causing death or serious bodily injury, even though it did not do so, and regardless of whether he intended it to.” There existed more than “a hypothetical potential for danger if others had been present.” Mann, 13 S.W.3d at 92. “Here, others were present, including the driver of the white SUV, and the manner in which Appellant used his motor vehicle placed those others in substantial danger of death or serious bodily injury, even if none of them was actually seriously hurt.” “While there is no evidence of a potential collision quite as devastating as the head-on near-miss in Mann, the danger of such a dire collision is evident on the facts of this case.” 21.

Mills and deadly weapon finding approved

Mills v. State, 541 S.W.3d 381 (Tex. App. - Houston [14th Dist.] 2017, no pet.) The trial court properly entered deadly 54

weapon findings based on D’s guilty pleas and stipulations to use of a deadly weapon; and his guilty pleas to causing death and serious bodily injury with his vehicle due to intoxication. “A guilty plea is valid when it ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’” State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013). “To enter a voluntary plea, a defendant must possess ‘an understanding of the law in relation to the facts.’” McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). “To enter an intelligent plea, a defendant must have ‘sufficient awareness of the consequences.’” Ex Parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). “A guilty plea does not violate due process even when a defendant enters it while ‘operating under various misapprehensions about the nature or strength of the State's case against him – for example, misestimating the likely penalty. . . .’” Id. “Moreover, when a ‘defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts.’” Id. at 808. “As the Court of Criminal Appeals explained in Polk v. State, an affirmative finding can be made in several circumstances. 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). First, the fact-finder’s verdict on the indictment may constitute an affirmative finding if the indictment by allegation specifically places the deadly weapon issue before the trier of fact and the defendant is found guilty as charged in the indictment. Id. Second, an affirmative finding can occur as a matter of law if the trier of fact finds that a deadly weapon per se (such as a firearm) has been used in the commission of the offense. Id. Third, a finding may be made if the trier of fact responds affirmatively to a special issue

submitted during the punishment stage of trial. Id. More recently, the Court of Criminal Appeals has added a fourth circumstance, holding that an affirmative deadly weapon finding can be made when the jury finds the defendant guilty as charged in the indictment and the indictment alleges the defendant caused death or serious bodily injury with a weapon. Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (holding jury necessarily found defendant used a deadly weapon because a deadly weapon is something that, in the manner of its use, is capable of causing death, and jury found defendant did, in fact, cause death).” “According to the Texas Code of Criminal Procedure, the trial court must enter a deadly weapon finding in the final judgment upon an affirmative finding that a deadly weapon was used or exhibited. As explained above, under the first scenario discussed in Polk v. State, an affirmative finding arises when the defendant is found guilty as charged in the indictment and the indictment specifically alleges the use of a deadly weapon. 693 S.W.2d at 394. We have held that appellant’s indictments included deadly weapon allegations. For each offense, appellant pled guilty to having committed each and every element of the offense alleged in the indictment and, as part of an evidentiary waiver, stipulated that ‘the facts contained in the indictment . . . are true and correct and constitute the evidence in this case.’ Appellant’s guilty pleas, waivers, and stipulations were accepted by the trial court and appellant was found guilty as charged in the indictments. Based on the guilty pleas and stipulations, we hold the trial court properly entered deadly weapon findings in the judgments under the first Polk scenario. Id.”

22.

Ouellette is distinguishable from the facts of this case and that, here, the jury charge was erroneous because it did not apply the law to the facts produced at trial.”

Burnett and same transaction contextual and intox definition

Burnett v. State, 541 S.W.3d 77 (Tex. Crim. App. 2017) - In D’s DWI trial, jury should have been instructed that “intoxication” only meant not having the normal use of mental or physical faculties by reason of the introduction of alcohol and should not have referred to other substances because there was insufficient evidence of intoxication by other substances even though police later found hydrocodone pills vehicle, there was no evidence in the record as to what kind of drug hydrocodone was, whether it could cause intoxicating effects, or whether the symptoms of intoxication D experienced were also indicative of intoxication by hydrocodone. “We also decline the State’s invitation to hold that the entire statutory definition of ‘intoxicated’ should be included in every DWI jury charge regardless of the evidence adduced at trial.” “We have explained that the State can use this to its advantage by alleging in its charging instrument that the defendant was simply ‘intoxicated’ or by including the entire statutory definition, instead of pleading the specific intoxicant as was previously required. However, it is the responsibility of the trial court to deliver to the jury a written charge setting forth the ‘law applicable to the case.’” Tex. Code Crim. Proc. art. 36.14. “Part of that duty includes applying the law to the facts of the case. And, although the trial court is obliged to include in the jury charge statutory definitions that affect the meaning of elements of the crime, Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009), the charge must also be tailored to the facts presented at trial.” “That is, the trial court must submit to the jury only the portions of the statutory definition of ‘intoxicated’ that are supported by the evidence. To do otherwise is error.” “We agree with the court of appeals that

23.

Navarro and acquittal for MA DWI not bar to retrial for MB DWI

Ex parte Navarro, 523 S.W.3d 777 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d) - When an appellate court renders a judgment of acquittal for MA DWI because there was no evidence of an aggravating element, could defendant be retried for a lesser-included offense MB DWI that did not require proof of the aggravating element? Defendant could be retried because the jury necessarily found the existence of every element for the MB DWI beyond a reasonable doubt, and while the court may have erroneously upgraded the conviction to a MA DWI, the judgment rendering an acquittal based on the absence of evidence for the aggravating element would not justify the conclusion that D should also be acquitted of the MB DWI, for which there was sufficient evidence. The trial court’s order denying the application for writ of habeas corpus is affirmed. 24.

Clement and in-court HGN of D by officer and right against selfincrimination

Clement v. State, 499 S.W.3d 153 (Tex. App. - Forth Worth 2016, pet. ref’d) At trial, officer testified that he had mistakenly checked the box on his report that indicated D had resting nystagmus. Persons with resting nystagmus are not candidates for the HGN test. State asked to have officer check D for resting nystagmus and D objected that if D had that condition three years ago at time of arrest D would not necessarily have it now and such a test would violate privilege 56

against self-incrimination. Judge allowed incourt test and officer found no resting nystagmus. Court held that when officer conducted an in-court HGN testing of D, such action did not implicate D’s privilege against self-incrimination because the testing did not elicit testimonial communications. Judgment affirmed. 25.

read together, contain “sufficient information to establish both the existence of the prior conviction and the defendant's identity as the person convicted.” In order for a rational jury to find that D was, beyond a reasonable doubt, the person convicted in the second jurisdictional prior, it was “incumbent on the State to go forward and show by independent evidence that the defendant [wa]s the person so previously convicted.” Evidence that the defendant merely has the same name as the person previously convicted is not sufficient to satisfy the prosecution’s burden. Court of appeals reduced D’s felony DWI conviction to misdemeanor DWI because the State failed to prove D’s connection to the second jurisdictional prior offense. The record contained no testimony establishing that D was the same person that was convicted in the prior offense and no date of birth to enable matching.

Strehl and lack of proof of prior DWI in felony DWI case

Strehl v. State, 486 S.W.3d 110 (Tex. App. - Texarkana 2016, no pet.) - “In a felony DWI case, the State must prove, in addition to the . . . elements of that primary offense, that the accused has twice previously, and sequentially, been convicted of DWI.” State linked D to one prior offense. In attempting to link D to the second prior offense, however, the State introduced only a certified copy of a judgment convicting Joseph Leo Strehl, III, of DWI. This judgment contained no fingerprint, photograph, signature, or other information establishing that the person convicted in cause number F35365 was D. Further, the trial record contained no testimony establishing that D was the same person that was convicted in cause number F35365. The State claimed that D’s name is unique, that the name appears on both judgments convicting a Joseph Leo Strehl, III, that both convictions were of the same offense, and that both convictions were for offenses committed in Johnson County. The determination of whether sufficient evidence links the defendant to the prior conviction is made on a case-by-case basis. “No specific document or mode of proof is required to prove” the link. The State is entitled to use circumstantial evidence to prove the defendant is the same person named in the alleged prior convictions, and proof may be made in a number of different ways. For example, the State can meet its burden by introducing multiple documents that, when

26.

Crawford and asleep in vehicle and state refused stipulate to prior DWI

Crawford v. State, 496 S.W.3d 334 (Tex. App. - Fort Worth 2016, pet. ref’d) Felony DWI and indictment alleged three prior DWI’s, two for felony DWI jurisdiction and one for enhancement. Before voir dire began, D offered to stipulate to the two jurisdictional prior DWI convictions. D also asked that the State not be allowed to read the enhancement allegations before the jury. The trial court denied that request, and D entered his plea to the indictment as read. The repeat offender allegation was not presented to the jury. The Court cited the TCCA opinion in Hollen v. State as follows, “I harbor grave concerns that, under the current law, felony DWI defendants will be convicted solely on their prior alcohol related convictions rather than on the offense charged, even when the defendant stipulates to the jurisdictionally 57

required prior convictions. The danger is great, I believe, because the prior convictions the State is required to prove are for similar offenses, any of the specified alcohol related offenses. These understandably arouse strong emotions, especially in those whose lives have been touched by preventable alcohol related accidents.” The Court stated, “Appellant suggests that when a DWI defendant stipulates to the jurisdictional enhancements, the issue is uncontested and should be a matter to be determined by the trial court, not the jury. Although that is a common-sense approach to limiting the issues to be determined, the Texas Court of Criminal Appeals has informed us that it is not the law.” “[W]e are constrained by the authority of the Texas Court of Criminal Appeals to hold that the trial court did not err by allowing the State to inform the jury of the prior DWI convictions and to present evidence of them to the jury to support the jury’s determination of the sufficiency of the proof of those prior DWI convictions.” 27.

the phone call was not illegally recorded, defendant was not entitled to a jury instruction under Tex. Code Crim. Proc. Ann. art. 38.23(a).” Judgment affirmed. 28.

Haas and authenticity of prior DWI’s in enhanced DWI case

Haas v. State, 494 S.W.3d 819 (Tex. App. - Houston [14th Dist.] 2016, no pet.) “In seeking to prove that defendant was a habitual violator for driving while intoxicated (DWI) under Tex. Code Crim. Proc. Ann. art. 37.07, documents that were certified by the clerk of court by way of a certified document number and a seal on the last page of each document, even though they were computer-generated, were authentic under Tex. R. Evid. 901.” “Rule 901(b)(7) did not require original seals.” “The documents admitted, which together established a prior conviction for DWI under defendant’s full name, birth date, and Texas driver’s license number, sufficiently established that defendant was the prior offender.” Judgment affirmed.

Siddiq and technique of blood draw and recorded jail conversations

29.

Siddiq v. State, 502 S.W.3d 387 (Tex. App. - Fort Worth 2016, no pet.) - In D’s trial for DWI, the law-enforcement exception to the federal wiretap statute was applicable to a recording of D’s jailhouse phone call in which he admitted he was drunk because recordings were routinely made pursuant to a policy. “The call was therefore admissible under 18 U.S.C. § 2510(4), (5)(a)(ii); Tex. Code Crim. Proc. Ann. art. 18.20, § 1(3), (4); and Tex. Penal Code Ann. § 16.02(a).” “Although a blood draw differed from hospital procedures in the position of defendant’s arm, the method of cleaning the site, and the method of use of a tourniquet, there was no evidence that defendant’s health or safety was threatened, making the blood draw reasonable.” “Because

Corley and retrograde-extrapolation evidence was reliable

Corley v. State, 541 S.W.3d 265 (Tex. App. - Houston [14th Dist.] 2017, no pet.) Trial judge reasonably could have determined the retrograde-extrapolation evidence was reliable because the expert under TRE 702 knew many of the individual factors, including the amount of food and time D last ate, the time of D’s last drink, and the time and results of D’s breath tests. “Retrograde extrapolation is the process of computing a person’s bloodalcohol level at the time of driving based on the alcohol level found in the person’s blood, drawn some time later. Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). Retrograde-extrapolation testimony can be 58

reliable if certain factors are known. Veliz v. State, 474 S.W.3d 354, 359 (Tex. App. Houston [14th Dist.] 2015, pet. ref’d). A paramount consideration is the expert’s ability to apply the science and explain it with clarity. Mata, 46 S.W.3d at 916. The expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation and must recognize the subtleties of the science and the risks inherent in any retrograde extrapolation. Id. The expert also must be able to apply the science clearly and consistently. Id.” “In assessing the reliability of retrograde-extrapolation evidence, courts must consider: (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing the extrapolation. Id. Relevant personal characteristics may include (1) weight, (2) gender, (3) the person’s typical drinking pattern and tolerance for alcohol, (4) how much alcohol the person had to drink on the occasion in question, (5) what the person drank, (6) the duration of the drinking, (7) the time of the last drink, and (8) how much and what food the person consumed before, during, and after the drinking. Id. The expert need not know every one of these data points to produce a reliable extrapolation. Id. at 916-17. Otherwise, ‘no valid extrapolation could ever occur without the defendant’s cooperation, since a number of facts known only to the defendant are essential to the process.’ Id. at 916.” “The Court of Criminal Appeals has set forth the following guidelines for balancing the factors: If the State conducts more than one test, each test a reasonable length of time apart, and the first test [was] conducted within a reasonable time from the time of the offense, then an expert could

potentially create a reliable estimate of the defendant’s [blood-alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. Id. at 916-17.” “Approximately one hour elapsed between the traffic stop and the breath tests. The longer the period between the traffic stop and the breath test, the less reliable retrograde extrapolation will be. See Bhakta v. State, 124 S.W.3d 738, 742 (Tex. App. - Houston [1st Dist.] 2003, pet. ref’d). More than two hours after the offense is an unreasonable amount of time. See Bigon v. State, 252 S.W.3d 360, 368 (Tex. Crim. App. 2008) (noting ‘research indicates that a blood test can be reliable if taken within two hours of driving’); Mata, 46 S.W.3d at 916-17 (concluding that testing blood-alcohol concentration more than two hours after the alleged offense seriously affects the reliability of any extrapolation); Fulenwider v. State, 176 S.W.3d 290, 295 (Tex. App. - Houston [1st Dist.] 2004, pet. ref’d). Although the police conducted two breath tests, because the tests were only a few minutes apart, the reliability is more akin to situations in which only one test was conducted. See Owens v. State, 135 S.W.3d 302, 308 (Tex. App. - Houston [14th Dist.] 2004, no pet.). Because the two tests were close together in time and an hour from the traffic stop, Israel needed to know some of appellant’s personal characteristics to reliably extrapolate his blood-alcohol content at the time he was driving based on the results of the breath tests. Mata, 46 S.W.3d at 916-17.” “In today’s case, the expert knew many 59

of the individual factors, including (1) the amount of food and time appellant last ate, (2) the time of appellant’s last drink, and (3) the time and results of appellant’s breath tests. Based on this record, the trial court reasonably could have concluded that the retrogradeextrapolation evidence Israel proffered was reliable and that Israel’s testimony was helpful. See Mata, 46 S.W.3d at 916-17; Fulenwider, 176 S.W.3d at 297. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Israel's testimony.” 30.

motive, the court of appeals explained, he could not invoke ‘strategy’ as an excuse not to conduct an adequate investigation into that financial motive. Id. According to the court of appeals, ‘[a]n investigation that did not include obtaining the payroll records, which were available and readily detailed the vast extent of [the arresting officer’s] overtime-pay abuse, does not reflect reasonable professional judgment.’ Id. (citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)).” “In his writ application, Appellant argued, and the court of appeals agreed, that Barnett did not conduct an adequate preliminary investigation to inform his decision to forego impeaching Officer Lindsey with his payroll records. Bowman, 483 S.W.3d at 740-41. We need not address this contention, however, because we conclude there is no record support for the premise. The record does not bear out the convicting court’s finding that Barnett failed to obtain and review those records to begin with. At no point did Barnett concede that he failed to obtain Lindsey’s payroll records prior to Appellant’s 2005 DWI trial. The trial court made a fact finding that Barnett did not have those payroll records, but there is no evidentiary support for that finding. All Barnett ever conceded at the writ hearing was that he could not presently remember whether he had obtained those records.”

Bowman and IAC for failure get payroll records for impeachment

Ex parte Bowman, 533 S.W.3d 337 (Tex. Crim. App. 2017) - Appellant failed to show that his counsel was ineffective for failing to properly investigate his DWI case because there was no evidence showing whether counsel had obtained the officer's payroll records to use to impeach him, as counsel testified at the hearing that he could not remember whether he had obtained the records. “Appellant argued on appeal that the convicting court’s deference to trial counsel’s strategy decision was inappropriate because that strategy decision had been based upon an inadequate investigation. Trial counsel could not legitimately choose to raise a question about the arresting officer’s financial motivation to testify, but then soft sell it for strategic reasons, without first conducting an investigation adequate to reveal exactly how compelling a case he could have made. The court of appeals agreed. Bowman, 444 S.W.3d at 281. The court of appeals noted that the convicting court had found as a matter of fact both 1) that trial counsel had endeavored to expose the arresting officer’s financial motive, and 2) that he had failed to obtain the officer’s payroll records. So long as trial counsel chose to broach the subject of the officer’s financial

31.

Voda and speedy trial

Voda v. State, 545 S.W.3d 734 (Tex. App. - Houston [14th Dist.] 2018, no pet.) - D was not denied a speedy trial due to the 32-month delay because D waited 18 months before asserting his speedy trial rights via a motion to dismiss, failed to show prejudice by the delay, failed to show exercise of due diligence in attempting to locate a witness, D was on bond during the 32-month period 60

In Harrell v. State, No. PD-0985-19 (Tex. Crim. App., April 21, 2021) (published), the police department received a report at about 4:00 a.m. of a gray minivan being driven erratically. The caller followed the van to a gas station, told police where it was parked, provided the license plate number, then hung up without describing the driver. Police located the van a few minutes later, the engine was off, and the defendant was in the driver seat with the seatbelt buckled and admitted to driving the van. Two passengers were in the van and they along with the driver were intoxicated. The defendant claimed that his admission to driving alone failed to show the corpus delicti of DWI because, without his admission, there was insufficient evidence he operated the van. The Court recognized that:

between indictment and motion to dismiss, and failed to show that the claims caused D stress beyond the level normally associated with being arrested for driving while intoxicated. 32.

Taylor and corpus delecti

Taylor v. State, 572 S.W.3d 816 (Tex. App. - Houston [14th Dist.] 2019, pet. ref’d) “The corpus delicti rule applies when there is an extrajudicial confession to involvement in a crime.” See Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015). Under the rule, “a defendant’s extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent evidence.” Id. “The rule’s purpose is to ensure that a person will not be convicted based solely on his own false confession to a crime that never occurred.” Id. “Within the framework of the Jackson sufficiency standard, the corpus delecti rule requires only that evidence independent of the extrajudicial confession show ‘that the “essential nature” of the charged crime was committed by someone.’” Id. “The rule is thus satisfied when some evidence outside of the extrajudicial confession, considered alone or in conjunction with the confession, shows that the crime actually occurred.” In this case, D’s car was stopped in main lane on freeway while D was standing alone outside car near front door. No other person was on the scene who could have operated the car. PO smelled alcohol on D’s breath and D had “slow, deliberate speech” os PO did SFST’s. D failed HGN and blew .169 and .170 three hours after car stalled. This is corroborating evidence D was operating motor vehicle in public place while intoxicated, and thus the corpus delecti rule was satisfied. 33.

[I]n cases involving extrajudicial confessions when “beyond a reasonable doubt” is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)). To determine if the corpus delicti of an offense is shown, an appellate court must examine all the evidence except the defendant’s extrajudicial confession to see if it shows that “the ‘essential nature’ of the charged crime was committed by someone.” Id. (citing Hacker, 389 S.W.3d at 866 (emphasis added); Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002)). The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes. Id. (quoting Carrizales v. State, 414 S.W.3d 737, 740 (Tex. Crim. App. 2013)). The analysis focuses on only whether someone committed the crime, but it is not as rigorous as the Jackson legal sufficiency review. Threet v. State, 157 Tex. Crim. 497, 250 S.W.2d 200, 200 (1952). The corpus delicti of DWI is that someone

Harrell and corpus delecti

operated a motor vehicle in a public place while intoxicated. Id.

the testing techniques itemized in the old manual were techniques deemed acceptable under the new one.

The Court held that, absent the defendant’s admission to driving, the corpus delicti of DWI was met under the facts of this case because the evidence tends to show: (1) the defendant and passengers were traveling in the same van identified by the 911 caller; (2) the van’s plates were the same plates reported by the 911 caller; (3) the van was found where the caller said it was parked; (4) the defendant was in the driver seat with the seatbelt buckled; (5) one of the passengers, when asked about the defendant’s intoxication, told the officer that the defendant was “supposed to be the sober one.” The Court held that this evidence “tends to show that someone in the minivan was operating it on the highway when 911 was called. (While the evidence indicates that Appellant was driving, we stress that proof of identity is not required in a corpus delicti analysis.)” “The corpus delicti rule has been satisfied and the evidence is legally sufficient because it tends to show that someone operated a motor vehicle in a public place while intoxicated.”

35.

Screws v. State, No. 11-18-00183-CR (Tex. App. - Eastland, July 9, 2020, no pet.) “The trial court did not err in failing to include all possible conditions of community supervision in the jury charge; the court was not required to list all of the terms and conditions of community supervision in the charge; The trial court’s failure to provide the jury with a reasonable-doubt instruction under Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Supp. 2019) did not deprive defendant of a fair and impartial punishment hearing because his pending misdemeanor offense of unlawful possession of a handgun was only briefly mentioned while he was being cross-examined by the State; additionally, the punishment assessed by the jury was below that which the State requested and the maximum sentence allowed by law.” G.

34.

Screws and probation conditions in the court’s charge

Cabral-Tapia and no proof PO followed NHTSA HGN standards

Expunctions

Ex parte Ferris, No. 05-19-00835-CV (Tex. App. - Dallas, October 2, 2020, no pet. h.) - D arrested in 2018 for a DWI misdemeanor and acquitted, the trial court did not err by granting an expunction order under Tex. Code Crim. Proc. Ann. art. 55.01(a)(1), “because the 2018 DWI arrest did not arise out of the same criminal episode as the 2014 DWI conviction; therefore, the arrest record for the 2018 DWI offense was available for expunction.” “The dissent identifies In re M.T.R., a decision by the First Court of Appeals, which involved a fact pattern similar to this case. See In re M.T.R., No. 01-18-00938-CV, 2020 Tex. App. LEXIS 1649, 2020 WL 930842, at *1 (Tex. App. -

State v. Cabral-Tapia, 572 S.W.3d 751 (Tex. App. - Amarillo 2019, no pet. h.) The judge correctly suppressed HGN results because in order for the test to be considered reliable under TRE 702, the PO doing the HGN test must follow the standardized procedures specified in the NHTSA manual. The State failed to prove the PO followed the NHTSA test procedures because the case was not one involving proof of slight variation from standardized procedures and the PO was trained on a superceded NHTSA manual and the older manual was not admitted into evidence. It was therefore conjecture whether 62

Houston [1st Dist.] Feb. 27, 2020, no pet.). In In re M.T.R., the defendant was arrested in 2012 for boating while intoxicated (BWI) in Montgomery County. Id. He subsequently pleaded guilty to the 2012 BWI offense, was convicted, served his punishment, and paid a fine. Id. In October 2015, the defendant was arrested and charged with DWI in Fort Bend County. Id. The defendant was acquitted of the DWI charge in Fort Bend County, and he sought and obtained an expunction of the acquitted DWI arrest. Id. The Department appealed, and our sister Court held that the 2012 BWI and 2015 DWI were a part of the same criminal episode—interpreting Section 3.01's definition of "criminal episode" outside of the context of prosecution. 2020 Tex. App. LEXIS 1649. We disagree with their reasoning.” In re K.T., No. 02-19-00376-CV (Tex. App. - Fort Worth, October 22, 2020, no pet. h.) - The Legislature never intended to prohibit expunction of arrest records if D acquitted of an offense merely because D had previously been convicted of a separate, but same or similar type, of offense. Plain language of TCCP art. 55.01(c) allows D arrested for and charged with DWI in 2017 and acquitted was eligible to expunge the arrest records even though D had a prior 2013 DWI conviction.

DWI Caselaw Update Insert

Michael C. Gross Gross & Esparza, PLLC 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

Texas Criminal Defense Lawyers Association 17th Annual Stuart Kinard Advanced DWI November 4-5, 2021 San Antonio, Texas

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2021-2022 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2021 Named Best Lawyers San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

Driving factors and reasonable suspicion to stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Failure to maintain a single lane (FMSL) – Leming and Heien and Dugar . . . . . . 1 B. Speeding – Leming and Yoda – and 38.23 jury instruction . . . . . . . . . . . . . . . . . . 1

II.

Search warrant for blood – Martinez motions, Crider, and Ramirez . . . . . . . . . . . . . . . . . 2

III.

Warrantless blood draws – exigent circumstances – Weems, Cole, Mitchell, and Ruiz . . . 3

IV.

Good faith exclusionary rule exception doesn’t apply to unsworn affidavits – Wheeler . . 4

HIPPA issues and grand jury subpoena for defendant’s medical records – Consuelo . . . . 4

VI.

Trial issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. An “ATV” is a motor vehicle for DWI purposes – Flores-Garnica . . . . . . . . . . . 5 B. The corpus delicti rule – Harrell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. 38.23 instruction, right confront, enhancements, call to police – Kinnett . . . . . . . 6 D. Two children in car is only one offense – Cook . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 E. Absence of retrograde extrapolation and guilty verdict – Ortiz . . . . . . . . . . . . . . . 9 F. Judge cannot sua sponte dismiss DWI information – Martinez . . . . . . . . . . . . . . . 9 G. Causal connection intox manslaughter/assault – Olalde . . . . . . . . . . . . . . . . . . . 10

Driving factors and reasonable suspicion to stop

Failure to maintain a single lane (FMSL) – Leming and Heien and Dugar

holding that, because “reasonable differences of opinion exist about how the maintain-a-single-lane statute applies,” the trial judge did not err in denying the motion to suppress because any mistake by the officer regarding what constituted FMSL, the officer’s mistake was one that was objectively reasonable.

The FMSL statute, Tex. Transp. Code Ann. § 545.060(a), provides that an operator on a roadway divided into two or more clearly marked lanes for traffic “shall drive as nearly as practical entirely within a single lane” and may not move from that lane unless the movement can be made safely. The Court of Criminal Appeals in its plurality opinion in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016), was presented with the question of whether or not FMSL occurs and is unsafe when it is committed by driving on the divider stripes of a road. The Court held that it need not decide if driving on the divider stripes constituted a failure to stay “entirely within” a designated lane because, “for a peace officer to stop a motorist to investigate a traffic infraction, as is the case with any investigative stop, ‘proof of the actual commission of the offense is not a requisite.’” The Court stated that the officer had an objectively reasonable basis to suspect the driver was intoxicated because a partially-identified informant saw the vehicle swerving from side to side and the officer corroborated the observation.

Speeding – Leming and Yoda – and 38.23 jury instruction

In Yoda v. State, No. 11-19-00191-CR (Tex. App. - Eastland, May 6, 2021, no pet. h.) (published), an officer was stopped at an intersection and saw a car driving at a high rate of speed in a 45 mile per hour zone at approximately 2:15 a.m. The officer pursued the car, and it took awhile to catch up to the car after the officer sped up to about 73 miles per hour. The officer believed, based upon his personal driving experiences, the driver was traveling at about 60-70 miles per hour. The officer was not qualified to use radar to determine speed and had no scientific method to determine the car’s speed. He admitted he could not issue a speeding ticket because he did not know the exact speed of the car. He also admitted he was not trained to tell if a car is speeding based upon a side vantage perspective. After the traffic stop, the officer eventually arrested the driver for DWI. The defendant filed a motion to suppress claiming the officer lacked reasonable suspicion to conduct a traffic stop for speeding. The court of appeals stated that the officer’s opinion of the speed “allowed the trial court to view the opinion as an estimate and not a precise mathematical calculation of Appellant's speed.” Because the trial judge chose to believe the officer’s testimony, the court of appeals was required to “give the trial court’s ruling almost complete deference given that the trial court had the right to decide whether [the officer] was a credible witness.” The court of appeals held that the officer was not

In Dugar v. State, No. 09-19-00098CR (Tex. App. - Beaumont, April 7, 2021, no pet. h.) (published), the court of appeals addressed the situation where a driver was stopped for FMSL but the defendant argued in a motion to suppress that he did not cross the lane divider and there was no proof his vehicle movement was unsafe as required by 545.060(a). The court of appeals stated that the law on this issue is unsettled given the split in the lower courts after Leming. The court cited Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) in 1

required to know the exact speed of the car in order to form a reasonable suspicion to believe the defendant was speeding over the posted limit. “A reasonable suspicion determination ‘need not rule out the possibility of innocent conduct.’” Leming v. State, 493 S.W.3d 552, 565 (Tex. Crim. App. 2016)). The trial court did not err in denying the motion to suppress.

issue requiring a 38.23 instruction. “As suggested by the Texas Court of Criminal Appeals in Hamal v. State, a factual dispute requires an Article 38.23 instruction if it is about what an officer ‘did, said, saw, or heard.’ 390 S.W.3d 302, 307 (Tex. Crim. App. 2012). In this case, there is no factual dispute about what [the officer] did, said, saw, or heard. The only dispute is as to his opinion that what he saw constituted obvious speeding – thereby providing a reasonable suspicion.” Because there was no genuine dispute about a material fact issue, the defendant was not entitled to a 38.23 instruction.

Article 38.23 of the Texas Code of Criminal Procedure requires the exclusion of evidence if the State obtained the evidence by violating the law. If there exists a genuine dispute about a factual issue regarding whether police conduct was illegal, Article 38.23(a) requires a trial judge to submit to the jury an instruction telling the jury that “if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, . . . [it must] disregard any such evidence so obtained.” To demonstrate the existence of a genuine dispute about a material fact issue, a defendant must show: (1) the evidence before the jury raises a fact issue; (2) the fact issue is affirmatively contested; and (3) the fact issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Absent a genuine dispute about a material fact issue, the legality of the challenged conduct is a question of law determined by the trial judge. If other undisputed facts establish the lawfulness of the conduct, there is no materiality on the contested factual issue, and the defendant is not entitled to a 38.23 jury instruction. A defendant’s questions on cross-examination cannot, by themselves, raise a disputed fact issue, but the witness' answers to those questions might raise a fact issue. If the officer’s opinion of speeding in this case was contradicted by another witness or the defendant that there was no speeding, or if the officer on cross-examination had stated the defendant was not speeding, this would have been a genuine dispute about a material fact

II.

Search warrant for blood – Martinez motions, Crider, and Ramirez

The Court of Criminal Appeals held in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019), that when a defendant’s blood is drawn at a hospital for medical purposes and that blood is later obtained by a grand jury subpoena and tested without a warrant, the testing of that blood violated the Fourth Amendment because of the privacy interest in blood drawn for medical purposes and the fact that such “testing of the blood was a Fourth Amendment search separate and apart from the seizure of the blood by the State.” The Court then held in Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020), that when blood is drawn pursuant to a warrant, the “magistrate’s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face.” Judge Newell in his concurring opinion cautioned that a reading of both the search warrant and probable cause affidavit limits the scope of the search – “Further, this reference to search and seizure of ‘evidence that shows the offense was committed’ also limits the scope of the search to evidence of intoxication and not to a 2

broader search for evidence unrelated to the crime such as DNA. Reading the search warrant and the affidavit to authorize only the seizure of blood, and not the evidence within the blood, that shows Appellant committed the offense applies an unduly technical and restrictive reading of the search warrant affidavit that fails to allow for any reasonable inferences that the issuing magistrate could have made.”

Another officer was present which militated against finding that practical problems prevented law enforcement from timely obtaining a search warrant within a time frame that preserved the ability to obtain evidence in the blood. “[W]here police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

In Ramirez v. State, 611 S.W.3d 645 (Tex. App. - Houston [14th Dist.] 2020), the court of appeals held, consistent with Crider, that when blood is drawn pursuant to a warrant that allows for the blood draw, a second warrant is not then required before testing the blood. The court also held as an issue of first impression that the blood testing need not be completed within the three-day period set out in Article 18.07(a)(3) of the Texas Code of Criminal Procedure which provides that a search warrant must be executed within three days. “We conclude that, based on the plain language of chapter 18 of the Code of Criminal Procedure set out above, the three-day requirement for the execution of a search warrant sets the limit for the actual search for and seizure of the evidence by a peace officer, not the timing for any subsequent forensic analysis that may be conducted on the seized evidence.”

In Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016), the Court held that a warrantless blood draw was proper given exigent circumstances in that case because, “From our review of the totality of the circumstances, we conclude that law enforcement reasonably believed that obtaining a warrant in this case would have significantly undermined the efficacy searching Cole's blood. The circumstances surrounding the taking of Cole’s blood sample demonstrate that obtaining a warrant was impractical.” Exigency factors included natural destruction of evidence by dissipation of intoxicating substances, logistical constraints of a severe accident involving a death, the time required to complete the accident investigation, the lack of other law enforcement to obtaining a warrant while the investigator continued the accident investigation and another officer was at the hospital with the arrested defendant.

III.

Warrantless blood draws – exigent circumstances – Weems, Cole, Mitchell, and Ruiz

In Mitchell v. Wisconsin, ___U.S.___, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019), the Court held that if a driver is unconscious and cannot be given a breath test, the exigent circumstances rule almost always permits a warrantless blood test. With an unconscious driver, it is very likely that the driver would be taken to an emergency room for a blood draw for medical treatment even if law enforcement was not seeking BAC information. Officers sometimes find unconscious drivers after the officer gets to the accident scene where the

In Weems v. State, 493 S.W.3d 574 (Tex. Crim. App. 2016), the Court of Criminal Appeals held that a warrantless blood draw was improper given the State’s failure to prove exigent circumstances. The defendant evaded law enforcement which could have caused the defendant’s blood alcohol concentration to diminish, but “little else in the record lent support to finding exigency.” 3

officer may also have other injured people or traffic control issues which may be incompatible with the procedures required to get a warrant. Therefore, if a driver is unconscious, the general rule is that a warrant is not needed to draw blood

The same officer then executed the search warrant. The State claimed that the officer acted in good faith pursuant to Article 38.23 of the Texas Code of Criminal Procedure in executing the search warrant. Article 38.23(b) states, “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” The Court held that the test is objective as opposed to subjective good faith and, as such, the good faith exception was inapplicable because an officer cannot be said to have acted in “objective good faith reliance” on a search warrant when he submitted an unsworn affidavit, so the Article 38.23 good-faith exception was inapplicable.

In State v. Ruiz, No. 13-13-00507-CR (Tex. App. - Corpus Christi, March 11, 2021, no pet. h.) (published), the court of appeals held exigent circumstances justified the warrantless blood draw pursuant to Weems and Mitchell. The prosecution established the following facts: (1) a car crash after which the defendant fled the scene and was found unconscious in a nearby field; (2) the defendant unconscious the rest of the night; (3) at the hospital, doctors kept the defendant hospitalized overnight due to his condition; (4) no local police procedures were in place to obtain blood search warrants; (5) it would have been difficult to find a judge to sign the blood warrant at that time of day; (6) it would have been difficult to find a judge that time of day and it would have taken two or three hours to obtain a warrant that night; and (7) only two officers were on duty that night and one officer could not be taken away from police duties in order to obtain a warrant that would take over two hours to procure. IV.

HIPPA issues and grand jury subpoena for defendant’s medical records

In Consuelo v. State, 613 S.W.3d 330 (Tex. App. - Dallas 2020, no pet.), the defendant was involved in an accident with another vehicle resulting in injuries to three people in the other vehicle and the defendant rendered unconscious. The defendant was taken to a hospital, emergency personnel drew his blood while performing emergency care to him, and hosptial personnel informed law enforcement that the toxicology revealed PCP, amphetamines, cocaine, opiates, marijuana, and benzodiazepines in his system. An officer included this information in his affidavit in support of a blood draw search warrant in addition to the defendant being unable to perform SFST’s because unconscious, a witness saw him operating a motor vehicle in a public place, his eyes were bloodshot and dilated, his appearance with disorderly and bloody, and he refused to provide a breath or blood sample. Blood was drawn pursuant to the search warrant and, the defendant was charged with intoxication assault. The State

Good faith excep ti on to exclusionary rule does not apply to unsworn affidavits

In Wheeler v. State, 616 S.W.3d 858 (Tex. Crim. App. 2021), an officer submitted an unsworn affidavit in support of a search warrant for blood. “One of the most fundamental tenets of search and seizure law is that a search warrant must be supported by a probable-cause affidavit that is sworn ‘by oath or affirmation.’” Tex. Const. art. I, § 9. The magistrate found probable cause in the unsworn affidavit, did not realize the affidavit was unsworn, and issued the search warrant. 4

also issued a grand jury subpoena for the defendant’s medical records. A motion to suppress was filed claiming that the test results were inadmissible because hospital personnel violated HIPPA by telling the police about the toxicology results and if that information was removed from the search warrant affidavit, probable cause was lacking to issue a search warrant for his blood. The court recognized that 45 C.F.R. § 164.512(f)(6)(i) allows a health care provider providing emergency health care may disclose protected health information to a law enforcement official if such disclosure appears necessary to alert law enforcement to: (A) The commission and nature of a crime; (B) The location of such crime or of the victim(s) of such crime; and (C) The identity, description, and location of the perpetrator of such crime. The court held that the defendant’s toxicology results were obtained while hospital personnel were providing him health care in response to a medical emergency. The court held that, under the facts of this case, HIPAA specifically allowed the release of the toxicology results to the police and, therefore, the grand jury subpoena for the medical records could not be fruit of the poisonous tree. VI.

Trial issues

An “ATV” is a motor vehicle for DWI purposes

The defense at trial was that the defendant was driving on a private road and the ATV was not a motor vehicle contrary to the officer’s testimony that it was a motor vehicle. The court of appeals recognized that, “A person commits [DWI] if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). “Motor vehicle,” as used in Section 49.04, “has the meaning assigned by Section 32.34(a).” The court concluded that pursuant to § 32.34(a), a motor vehicle therefore is “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.” “Highway” is not defined in the Penal Code, but in Hardy v. State, 281 S.W.3d 414, 421 n.14 (Tex. Crim. App. 2009), the Court of Criminal Appeals stated, “In common usage, ‘highway’ is an area that has been modified so that it may be used for vehicular travel.” A parking lot, however, is not a highway. Rouse v. State, 651 S.W.2d 736, 738 (Tex. Crim. App. [Panel Op.] 1982). The court of appeals held that the evidence, including the videos, establish the ATV “could transport a person and property on a highway and that it was not exclusively used on stationary rails or tracks. Specifically, the evidence shows that Flores-Garnica drove the ATV to the store for beer and then drove it to the mobile home park on roads. We therefore hold the evidence sufficient to support the jury's finding that the ATV was a motor vehicle” and that the mobile home road was a public place.

In Flores-Garnica v. State, No. 02-2000016-CR (Tex. App. - Fort Worth, May 31, 2021, no pet. h.) (published), an officer saw an ATV rush into a store’s parking lot, the driver ran into the store and exited with a 12-pack of beer, left the parking lot in the ATV “in a very alarming manner,” and entered a mobile home parking lot that was marked as private property. The officer stopped the defendant’s ATV, smelled alcohol on his breath, conducted SFST’s, and arrested him for DWI.

The corpus delicti rule

then hung up without describing the driver. Police located the van a few minutes later, the engine was off, and the defendant was in the driver seat with the seatbelt buckled and admitted to driving the van. Two passengers were in the van and they along with the driver were intoxicated. The defendant claimed that his admission to driving alone failed to show the corpus delicti of DWI because, without his admission, there was insufficient evidence he operated the van. The Court recognized that:

the same van identified by the 911 caller; (2) the van’s plates were the same plates reported by the 911 caller; (3) the van was found where the caller said it was parked; (4) the defendant was in the driver seat with the seatbelt buckled; (5) one of the passengers, when asked about the defendant’s intoxication, told the officer that the defendant was “supposed to be the sober one.” The Court held that this evidence “tends to show that someone in the minivan was operating it on the highway when 911 was called. (While the evidence indicates that Appellant was driving, we stress that proof of identity is not required in a corpus delicti analysis.)” “The corpus delicti rule has been satisfied and the evidence is legally sufficient because it tends to show that someone operated a motor vehicle in a public place while intoxicated.”

38.23 jury instruction, right of confrontation, enhancements, DWI elements, call to police

In Kinnett v. State, No. 01-18-01128CR (Tex. App. - Houston [1st Dist.], December 22, 2020, no pet.), the court of appeals first addressed whether or not the prosecution proved one of the enhancement paragraphs for the defendant’s felony DWI. The court recognized that DWI is a third-degree felony if there is proof the defendant has previously been twice convicted of any offense relating to operating a motor vehicle while intoxicated. Proof of two prior convictions is an element of the felony offense of DWI and vests the district court with jurisdiction. Regarding the enhancements, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove the existence of the prior conviction or linking the defendant to that prior conviction. Methods used for this

proof include: (1) certified copy of the final judgment and sentence that shows the prior conviction and the defendant as the person convicted; (2) the defendant’s admission; or (3) testimony by a person who was present at the conviction and can identify the defendant as the person convicted. The State proved the enhancement in issue because it produced the defendant’s fingerprint card; a certified copy of the judgment that did not contain the defendant’s fingerprint but gave the date of offense and date of judgment, full name, and court of conviction; and the defendant’s pen packet which contained the date of offense and defendant’s name and matched the judgment and provided the defendant’s fingerprints.

prove both per se and impairment intoxication. A blood-alcohol test result, however, without more, is insufficient to prove intoxication at time of driving. “There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.” “Other evidence” of intoxication at time of driving – as well as at the time of blood draw – “includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, any admissions by the defendant concerning when and how much he had been drinking, in short, any and all of the usual indicia of intoxication.” The State offered evidence that the defendant was 0.134, the call to police describing defendant’s vehicle and reckless driving, defendant asleep in his vehicle in the parking lot at the bar, the odor of alcohol on his person, slurred speech, disorderly clothes, admission to drinking that day and driving to the parking lot, multiple clues on the SFST’s, unsteady on his feet and assertive behaviors, and both officers believed he was intoxicated. This was sufficient evidence of intoxication at time of driving.

The court of appeals next addressed whether the State proved the defendant was operating the motor vehicle given that a caller to the police identified the driver as “him” but provided no description of the driver or whether there were any passengers, police did not see the defendant driving, and the officer’s dash cam video indicated the vehicle was not running at the time of the stop. The evidence was sufficient because the police dispatched an officer to the bar’s parking lot and the officer arrived 13 minutes after the call to the police and saw the vehicle identified by the caller, the defendant was inside the running vehicle, and the defendant admitted to drinking and driving the vehicle to the parking lot.

The court of appeals addressed whether the right of confrontation was violated by the admission into evidence of the caller’s call without the caller testifying at trial. The court recognized that at the time of the call the defendant was no longer driving, was parked, and was still sitting inside his vehicle, so the defendant was still in public and in his vehicle. The call related to the driving behavior including a near head-on collision, so it was made “mainly to enable a police response to an ongoing emergency.” The caller initiated contact with the dispatcher when he called the police department, and statements made to police during contact initiated by a witness at the beginning of an

The court of appeals addressed whether the State proved the blood test was valid for the time period when the defendant was driving the vehicle because the blood draw was three hours after the arrest, there was no testimony as to time of driving, and there was no retrograde extrapolation of the blood results. The court of appeals recognized that BAC-test results, even absent retrograde extrapolation, are often highly probative to 7

investigation are generally not considered testimonial. The call was informal, and most of the statements were spontaneous with little prompting from the dispatcher. Although the caller was calm and composed and not frantic, the call’s primary purpose was to alert police to a potentially intoxicated/dangerous driver who was still in his vehicle and in public. These facts indicate the call was non-testimonial, so the admission into evidence of the call was not a violation of the right of confrontation.

Article 38.23 instruction regarding whether or not the vehicle was running at the time of the stop. The court held that there was no affirmative evidence of a factual dispute concerning whether the vehicle was running at the time the officer approached it. The dash cam video did not indicate if the vehicle was running, the officer’s testimony on cross-examination agreeing with defense counsel that he did not state on the video recording that the car was running was not affirmative evidence that the vehicle was not running, and the officer’s failure to testify at the suppression hearing that the vehicle was running was not affirmative evidence that the vehicle was not running. Under these facts, the issue of whether the vehicle was running when the officer approached it was not contested by affirmative evidence at trial. Therefore, a 38.23 instruction was not required.

The court of appeals addressed whether police had reasonable suspicion to detain him for a DWI investigation given that the call lacked sufficient indicia of reliability to provide reasonable suspicion because the caller was not a known informant whose reputation and credibility could be assessed. The court recognized that an informant may be considered more reliable if he provides a firsthand account of events and a detailed description of wrongdoing soon after its occurrence. “Courts also consider an informant who is not connected with the police inherently trustworthy when advising the police of suspected criminal activity.” “An anonymous tip alone is rarely sufficient to justify a traffic stop, but an anonymous tip supported by other ‘sufficient indicia of reliability’ may be enough to justify a stop.” If the informant “provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.” Under the totality of the circumstances, the court held that the call was supported by sufficient indicia of reliability and the officer’s observations prior to initiating conversation with the defendant provided the officer with reasonable suspicion that the defendant had been driving while intoxicated.

Two children in car is only one offense

In Ex parte Cook, No. WR-91,503-01 (Tex. Crim. App., September 15, 2021), the Court of Criminal appeals determined that, when a driver arrested for DWI with two children in the car (a state jail felony), the driver commits only one offense, not two. The three types of gravamen for unit of prosecution purposes are: (1) result of conduct, (2) nature of conduct, or (3) circumstances surrounding the conduct. “An offense may have more than one of these types of conduct elements, but the question is which conduct element is the focus of the statute.” DWI has both nature of conduct element (driving while intoxicated) and circumstance surrounding the conduct (presence of a child under age 15). With DWI, “the circumstance element (the presence of a child under age 15) does not make otherwise innocent conduct criminal; it merely aggravates otherwise criminal conduct.” With DWI, he circumstance element “does not describe the

The court of appeals addressed whether the defendant was entitled to an 8

focus of the offense. Rather, the focus, for unit of prosecution purposes, is the act of driving while intoxicated. Consequently, we conclude that each incident of driving describes the unit of prosecution for the offense at issue, not the presence of each child.” E.

probable than not that he was intoxicated at the time he drove under either definition of intoxication because the test results provided evidence that he had consumed alcohol.” Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) (“BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication.”); Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (results from defendant’s breath test, taken more than an hour after traffic stop, had considerable probative value on issue of intoxication at time of driving). Under the facts of this case, evidence is sufficient in light most favorable to verdict. Kirsch, 306 S.W.3d at 745 (admission of drinking alcoholic beverages and erratic driving raises inferences of intoxication); Zill v. State, 355 S.W.3d 778, 786-88 (Tex. App. - Houston [1st Dist.] 2011, no pet.) (strong odor of alcohol and admission of drinking raises inferences of intoxication). Moreover, after being indicted for the offense, Appellant jumped bail and fled the jurisdiction for three years before being caught re-entering the United States from Mexico. In conclusion, the admitted evidence supports the jury’s finding that Appellant was intoxicated while operating his car.

Absence of retrograde extrapolation and guilty finding

In Ortiz v. State, No. 07-19-00425-CR (Tex. App. - Amarillo, July 28, 2021, no pet), deputy saw D driving across a yellow line into the lane of oncoming traffic. When deputy requested to see D’s drivers license, he struggled locating it in his wallet before she retrieved it for him. D’s breath smelled of alcohol, consistent with D’s admission during the traffic stop that he had consumed ten beers. There was no retrograde extrapolation. The court of appeals recognized that “the Court of Criminal Appeals has held for more than fifteen years that alcohol content tests ‘are probative without retrograde extrapolation testimony.’” State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013) (quoting State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005)). “Breath or blood test results can be relied upon, even without retrograde extrapolation testimony, along with other evidence of intoxication to determine whether a particular defendant was intoxicated, as the term is defined, at the time of driving.” Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018) (citing Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004)). When a trial court submits both intoxication definitions to the jury, the jury may consider loss of normal use of mental or physical faculties or 0.08 or more. In this case, an hour and fifteen minutes after Appellant was stopped, he blew .298 and .309. There was no evidence he drank alcohol after driving. “Thus, despite the absence of any retrograde extrapolation, Appellant’s breathalyzer results tend to make it more

F. Judge cannot sua sponte dismiss DWI information. In State v. Martinez, No. 14-20-00255CR (Tex. App. - Houston [14th Dist], August 12, 2021, no pet.), the trial judge dismissed a DWI information sua sponte without a motion to dismiss filed by the D. Defects in a complaint must be raised pretrial and failure to object pretrial to a defect, error, or irregularity in an information waives the right to raise that issue on appeal. Ramirez v. State, 105 S.W.3d 628 (Tex. Crim. App. 2003); Matthews v. State, 530 S.W.3d 744 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d). A sua 9

sponte dismissal of an information is improper “because neither party had the opportunity to raise or develop these issues in the trial court before the complaint was dismissed and the case proceeded to appeal . . .” G.

Causal connection manslaughter/assault

combinations exist to satisfy the “but for” requirement: (1) the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may be sufficient to have caused the harm.’” Robbins v. State, 717 S.W.2d 348 (Tex. Crim. App. 1986). However, “[i]f the additional cause, other than the defendant’s conduct, is clearly sufficient, by itself, to produce the result and the defendant’s conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.” Id.; Walter v. State, 581 S.W.3d 957 (Tex. App. - Eastland 2019, pet. ref’d) (holding if injuries caused by defendant contributed to death of deceased, he is responsible even though other contributing causes existed). “Viewing the evidence in the light most favorable to the prosecution and assuming the jury resolved any conflicts in the evidence in the verdict’s favor, the jury could have reasonably found Olalde’s alcohol intoxication – well above the legal limit – caused the death and injuries, alone or concurrently with another cause because she was too impaired to operate her Ford Expedition on a public road, causing her to lose control of the vehicle and collide with the Chevrolet Malibu driven by the decedent.”

intox

In Olalde v. State, Nos. 04-20-00197CR to 04-20-00199-CR (Tex. App. - San Antonio, August 18, 2021, no pet.), D’s vehicle collided with another vehicle on an access road resulting in death and injuries to four passengers and driver. D blew 0.18 and 0.14 and was charged with intox manslaughter and intox assault in that intoxication caused the harm alleged by driving a motor vehicle into another motor vehicle. D claimed on appeal that two factors, when viewed “in combination,” were a “concurrent cause of the accident and resulting harm, thereby making her intoxication a clearly insufficient cause of the harm.” D claimed that a vehicle collided with her vehicle while D was driving which forced D’s vehicle “to move from the far left lane of the access road to the right lane and onto the sidewalk that paralleled the right lane.” D’s expert testified that D “had been traveling on the sidewalk for approximately 140 feet ‘and was reentering the outside travel lane’ at the moment of impact.” “The existence or nonexistence of a causal connection is normally a question for the jury.” Hale v. State, 194 S.W.3d 39 (Tex. App. - Texarkana 2006, no pet.). Under section 6.04(a) of the Texas Penal Code, “a person is criminally responsible if the result would not have occurred but for [that person’s] conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor [was] clearly insufficient.” “In other words, if a concurrent cause is present, ‘two possible 10

DWI 101

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

TCDLA’s 17th Annual Kinard Advanced DWI San Antonio, Texas November 4-5, 2021

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, San Antonio Criminal Defense Lawyers Association, 2011 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2020 Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2020 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2020 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS List of items 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

DIC-23 DIC-24 DIC-25 Property inventory from jail TDPS application for copy of driver record ALR hearing request TCOLE request TCOLE report Booking photo request Blood draw items to request List of potentially discoverable information Subpoena duces tecum Notice of ALR hearing Request for ALR discovery 1 TAC § 159.103 37 TAC § 17.16

TEXAS DPS

DR-1 (Rev. 10/16)

*012004*

APPLICATION FOR COPY OF DRIVER RECORD

MAIL TO: Texas Department of Public Safety, Box 149008, Austin, TX 78714-9008

DO NOT MAIL CASH. Mail check or money order payable to: Texas Department of Public Safety

Any questions regarding the information on this form should be directed to the Contact Center at 512-424-2600. Allow 2-3 weeks for delivery.

Check Type of Record Desired

| 1. Name – DOB – License Status – Latest Address.

| 2A. CERTIFIED version of #2. This Record is Not acceptable for a Defensive Driving Course (DDC).

| 4. Abstract Record – Certified abstract of completed driver record.

| Other: (Original Application, DWLI, etc.)

Mail Driver Record To: (Please Print or Type)

Requestor’s Last Name

Street Address

City

State

| |

Requestor’s First Name

Zip Code

$ 7.00

Last Name

First Name

Middle Name/Maiden Name

|-|

| M | M | / | D |D | / | Y | Y | Y | Y | Date of Birth

| |

Individual’s Written Consent For ONE TIME Release to Above Requestor

$ 20.00

| |

Suffix (SR., JR., etc.)

|.00

(If Required)

Daytime Telephone Number (include area code)

Texas Driver License Number

Type of business, organization, etc. (i.e., insurance provider, towing company, private investigation, firm, etc.)

Texas Driver License Number

Name of business, organization, entity, etc. Your Title or Affiliation with above

$ 10.00

If requesting on behalf of a business, organization, or other entity, please include the following:

Information Requested On:

$ 10.00

| 3A. CERTIFIED version of #3. Furnished to Licensee Only and is Acceptable for DDC.

$ 6.00

| 3. Name – DOB – License Status – Record of ALL Crashes/Violations. Furnished to Licensee Only.

$ 4.00

| 2. Name – DOB – License Status – 3 Year Record only lists Crashes/Moving Violations.

FEE

(Requestor, if you do not meet one of the exceptions listed on the back of this form, please be advised that without the written consent of the driver license/ID card holder, the record you receive will not include personal information.)

, hereby certify that I granted access on this one occasion to my Driver License/ID Card

record, inclusive of the personal information (name, address, driver identification number, etc.) to Signature of License / ID Card Holder or Parent / Legal Guardian

State and Federal Law Requires Requestors to Agree to the Following:

Date

In requesting and using this information, I acknowledge that this disclosure is subject to the federal Driver’s Privacy Protection Act (18 U.S.C. Section 2721 et seq.) and Texas Transportation Code Chapter 730. False statements or representations to obtain personal information pertaining to any individual from the DPS could result in the denial to release any driver record information to myself and the entity for which I made the request. Further, I understand that if I receive personal information as a result of this request, it may only be used for the stated purpose and I may only resell or redisclose the information pursuant to Texas Transportation Code §730.013. Violations of that section may result in a criminal charge with the possibility of a $25,000 fine.

I certify that I have read and agree with the above conditions and that the information provided by me in this request is true and correct. If I am requesting this driver record on behalf of an entity, I also certify that I am authorized by that entity to make this request on their behalf. I also acknowledge that failure to abide by the provisions of this agreement and any state and federal privacy law can subject me to both criminal and civil penalties.

Signature of Requestor

Date

If you are not requesting a copy of your own record or do not have the written consent of DL/ID holder, you must provide the information requested on the reverse.

Texas Department of Public Safety

Save Time – Request Your Driver Record Online www.texas.gov

Important Instructions – Read Carefully

The Texas Department of Public Safety may disclose personal information to a requestor without written consent of the DL/ID holder, on proof of their identity and a certification by the requestor that the use of the personal information is authorized under state and federal law and that the information will be used only for the purpose stated and in complete compliance with state and federal law.

You must meet one or more of the following exceptions if you do not have written consent of the DL/ID holder to be entitled to receive personal information on the above named individual. Please initial each category that applies to the requested driver record.

1. For use in connection with any matter of (a) motor vehicle or motor vehicle operator safety; (b) motor vehicle theft; (c) motor vehicle emissions; (d) motor vehicle product alterations, recalls, or advisories; (e) performance monitoring of motor vehicles or motor vehicle dealers by a motor vehicle manufacturer; or (f) removal of nonowner records from the original owner records of a motor vehicle manufacturer to carry out the purposes of the Automobile Information Disclosure Act, the Anti Car Theft Act of 1992, the Clean Air Act, and any other statute or regulation enacted or adopted under or in relation to a law included in the above.

2. (Valid for Certified Abstract) For use by a government agency in carrying out its functions or a private entity acting on behalf of a government agency in carrying out its functions.

3. For use in connection with a matter of (a) motor vehicle or motor vehicle operator safety; (b) motor vehicle theft; (c) motor vehicle product alterations, recalls, or advisories; (d) performance monitoring of motor vehicles, motor vehicle parts, or motor vehicle dealers; (e) motor vehicle market research activities, including survey research; or (f) removal of nonowner records from the original owner records of motor vehicle manufacturers.

4. For use in the normal course of business by a legitimate business or an authorized agent of the business, but only to verify the accuracy of personal information submitted by the individual to the business or the authorized agent of the business and to obtain correct information if the submitted information is incorrect to prevent fraud by pursuing a legal remedy against, or recovering on a debt or security interest against the individual.

5. (Valid for Certified Abstract) For use in conjunction with a civil, criminal, administrative, or arbitral proceeding in any court or government agency or before any self regulatory body, including service of process, investigation in anticipation of litigation, execution or enforcement of a judgement or order, or under an order of any court.

6. For use in research or in producing statistical reports, but only if the personal information is not published, redisclosed, or used to contact any individual.

7. For use by an insurer or insurance support organization, or by a self insured entity, or an authorized agent of the entity, in connection with claims investigation activities, antifraud activities, rating or underwriting.

8. For use in providing notice to an owner of a towed or impounded vehicle.

9. For use by a licensed private investigator agency or licensed security service for a purpose permitted as stated on this page.

10. (Valid for Certified Abstract) For use by an employer or an authorized agent or insurer of the employer to obtain or verify information relating to a holder of a commercial driver license that is required under 49 U.S.C. Chapter 313. 11. For use in connection with the operating of a private toll transportation facility.

12. For use by a consumer-reporting agency as defined by the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) for a purpose permitted under the Act.

13. For any other purpose specifically authorized by law that relates to the operation of a motor vehicle or to public safety. Please state specific statutory authority

14. For use in the preventing, detecting, or protecting against identity theft or other acts of fraud. The Department prior to release of personal information may require additional information.

Below is an example of how numbers and letters should be written on front of this form: |1 |

|A|

2 | 3 |4 | 5 | 6 | 7 | 8 | 9 |0 |

B | C | D | E | F | G | H | I | J | K | L |M | N | O | P | Q| R | S | T | U| V |W| X| Y | Z |

*012004*

Texas Commission On Law Enforcement Personal Status Report Name

STATUS

Citizen

Race

Gender

Yes

White

Male

Federal ID

State ID

Education Information Institution

Hours Education 0 UNIVERSITY

133 Total Hours

133

Total Training Hours

2660

High School Bachelor

Service History Appointed As

Department

Award

Peace Officer

SAN ANTONIO POLICE DEPT.

Peace Officer License

Service Service Start Date End Date

Service Time

5/7/2010

9 years, 3 months

Total Service Time Description

Service Time

Peace Officer

9 years, 3 months

Total officer time

9 years, 3 months

Award Information Award

Type

Peace Officer License

License

Basic Peace Officer

Action

Action Date

Granted

5/10/2010

Certification Issued

4/26/2011

Certificate

Academy History Completed

Date

Institution

Course Title

3/4/2010

San Antonio Police Academy

Basic Peace Officer

Courses Completed

7/31/2019

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2017 - 08/31/2019 *

Course No. Course Title

Course Course Date Hours Institution

3106

Conference ( General )

6/25/2019

2046

Driving

8/31/2018

San Antonio Police Academy

2049

Report Writing - general

8/31/2018

San Antonio Police Academy

2053

Baton (All)

8/31/2018

San Antonio Police Academy

3018

Police Labor Relations

8/31/2018

San Antonio Police Academy

3027

Verbal/Nonverbal Communication

8/31/2018

San Antonio Police Academy

3038

Agency Operations (General) 8/31/2018

San Antonio Police Academy

3185

85th Legislative Session Legal Update

8/31/2018

San Antonio Police Academy 85th Session State and Federal Law Update

3232

Special Investigative Topics

8/31/2018

San Antonio Police Academy Special Investigative Topics (Intermediate)

3342

Tactical Firearms Training

8/31/2018

San Antonio Police Academy

3344

Less Lethal Electronic Control 8/31/2018 Device Training

San Antonio Police Academy

3518

Assessing for Suicide, 8/31/2018 Medical, and Mental Impairm

San Antonio Police Academy

4100

Information Technology (General)

8/31/2018

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

8/31/2018

San Antonio Police Academy

6030

Tactical Vehicle Traffic Stops 8/31/2018 & Extractions

San Antonio Police Academy

1849

De-escalation Tech (SB 1849) 7/10/2018

Combined Law Enforcement Asso. of Texas

2083

Drug Recognition Expert InService Training

5/16/2018

Bill Blackwood LEMI of Texas

4065

Canine Encounters (Intermediate/Advance)

5/15/2018

San Antonio Police Academy Canine Encounter (Intermediate) Canine Encouter (Advance)

2046

Driving

5/9/2018

TEEX Central Texas Police Academy

2024

Narcotics/Dangerous Drug Inv.

9/1/2017

San Antonio Police Academy

3018

Police Labor Relations

9/1/2017

San Antonio Police Academy

3030

Answering EEO Complaints

9/1/2017

San Antonio Police Academy

3038

Agency Operations (General) 9/1/2017

San Antonio Police Academy

3206

Professional Standards/Internal Investigations Tra

San Antonio Police Academy

7/31/2019

9/1/2017

Training Mandates

Texas Municipal Police Association

De-escalation Tech (SB 1849)

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2017 - 08/31/2019 *

Course No. Course Title

Course Course Date Hours Institution

3305

Active Shooter Response

9/1/2017

San Antonio Police Academy

3342

Tactical Firearms Training

9/1/2017

San Antonio Police Academy

3343

Less Lethal Chemical Weapons Training (OC, Mace, e

9/1/2017

San Antonio Police Academy

3344

Less Lethal Electronic Control 9/1/2017 Device Training

San Antonio Police Academy

3904

Cultural Awareness

9/1/2017

San Antonio Police Academy

3931

Defensive Driving

9/1/2017

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

9/1/2017

San Antonio Police Academy

6030

Tactical Vehicle Traffic Stops 9/1/2017 & Extractions

San Antonio Police Academy

Unit Hours

Training Mandates

116

09/01/2015 - 09/30/2017

Course No. Course Title

Course Date

2024

Narcotics/Dangerous Drug Inv.

9/1/2017

San Antonio Police Academy

3018

Police Labor Relations

9/1/2017

San Antonio Police Academy

3030

Answering EEO Complaints

9/1/2017

San Antonio Police Academy

3038

Agency Operations (General) 9/1/2017

San Antonio Police Academy

3206

Professional Standards/Internal Investigations Tra

9/1/2017

San Antonio Police Academy

3305

Active Shooter Response

9/1/2017

San Antonio Police Academy

3342

Tactical Firearms Training

9/1/2017

San Antonio Police Academy

3343

Less Lethal Chemical Weapons Training (OC, Mace, e

9/1/2017

San Antonio Police Academy

3344

Less Lethal Electronic Control 9/1/2017 Device Training

San Antonio Police Academy

3904

Cultural Awareness

9/1/2017

San Antonio Police Academy

3931

Defensive Driving

9/1/2017

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

9/1/2017

San Antonio Police Academy

6030

Tactical Vehicle Traffic Stops 9/1/2017 & Extractions

San Antonio Police Academy

7/31/2019

Course Hours Institution

Training Mandates

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2015 - 09/30/2017

Course No. Course Title

Course Course Date Hours Institution

3851

Breathalyzer / Intoxilyzer

8/17/2017

San Antonio Police Academy

8158

Body Worn Camera

5/25/2017

San Antonio Police Academy

2042

Mechanics of Arrest & Search 6/15/2016

San Antonio Police Academy

2045

Patrol Procedures

6/15/2016

San Antonio Police Academy

2096

Arrest, Search & Seizure (Non-Intermediate Core Co

6/15/2016

San Antonio Police Academy

2083

Drug Recognition Expert InService Training

3/22/2016

Bill Blackwood LEMI of Texas

2053

Baton (All)

3/11/2016

San Antonio Police Academy

2095

Use of Force (NonIntermediate Core Course)

3/11/2016

San Antonio Police Academy

3018

Police Labor Relations

3/11/2016

San Antonio Police Academy

3038

Agency Operations (General) 3/11/2016

San Antonio Police Academy

3184

84th Legislative Session Legal Update

3/11/2016

San Antonio Police Academy 84th Session State and Federal Law Update

3342

Tactical Firearms Training

3/11/2016

San Antonio Police Academy

3344

Less Lethal Electronic Control 3/11/2016 Device Training

San Antonio Police Academy

3843

CIT-Update

3/11/2016

San Antonio Police Academy Crisis Intervention Training (Intermediate) issued prior to 4-1-18 Peace Officer Intermediate Options Peace Officer Intermediate Options 2009-09

3871

Stress Manangement

3/11/2016

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

3/11/2016

San Antonio Police Academy

2046

Driving

3/11/2016

San Antonio Police Academy

57120

Calibre Press The Bulletproof 12/10/2015 Warrior

Combined Law Enforcement Asso. of Texas

3038

Agency Operations (General) 10/9/2015

San Antonio Police Academy

3018

Police Labor Relations

10/9/2015

San Antonio Police Academy

3851

Breathalyzer / Intoxilyzer

9/17/2015

San Antonio Police Academy

Unit Hours

7/31/2019

Training Mandates

126

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2013 - 08/31/2015

Course No. Course Title

Course Course Date Hours Institution

2046

Driving

6/19/2015

San Antonio Police Academy

2049

Report Writing - general

6/19/2015

San Antonio Police Academy

3038

Agency Operations (General) 6/19/2015

San Antonio Police Academy

3270

Human Trafficking

6/19/2015

San Antonio Police Academy Human Trafficking

3342

Tactical Firearms Training

6/19/2015

San Antonio Police Academy

3343

Less Lethal Chemical Weapons Training (OC, Mace, e

6/19/2015

San Antonio Police Academy

3344

Less Lethal Electronic Control 6/19/2015 Device Training

San Antonio Police Academy

3939

Cultural Diversity

6/19/2015

San Antonio Police Academy Cultural Diversity (Intermediate)

6012

Health/Physical Fitness/Stress

6/19/2015

San Antonio Police Academy

2045

Patrol Procedures

6/19/2015

San Antonio Police Academy

2031

White Collar Crimes

6/19/2015

San Antonio Police Academy

2178

S.F.S.T. Practitioner Update

3/26/2015

Texas Municipal Police Association

2045

Patrol Procedures

9/26/2014

San Antonio Police Academy

2046

Driving

9/26/2014

San Antonio Police Academy

2053

Baton (All)

9/26/2014

San Antonio Police Academy

3018

Police Labor Relations

9/26/2014

San Antonio Police Academy

3038

Agency Operations (General) 9/26/2014

San Antonio Police Academy

3183

83rd Legislative Session Legal Update

9/26/2014

San Antonio Police Academy 83rd Session State and Federal Law Update

3232

Special Investigative Topics

9/26/2014

San Antonio Police Academy Special Investigative Topics (Intermediate)

3287

Animal Investigations/Law

9/26/2014

San Antonio Police Academy

3342

Tactical Firearms Training

9/26/2014

San Antonio Police Academy

3344

Less Lethal Electronic Control 9/26/2014 Device Training

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

9/26/2014

San Antonio Police Academy

3851

Breathalyzer / Intoxilyzer

8/25/2014

San Antonio Police Academy

2082

Drug Recognition Expert Certification

4/25/2014

Bill Blackwood LEMI of Texas

2081

Drug Recognition Expert Classroom

3/27/2014

Bill Blackwood LEMI of Texas

7/31/2019

Training Mandates

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2013 - 08/31/2015

Course No. Course Title

Course Course Date Hours Institution

2080

Drug Recognition Expert Pre- 3/18/2014 School

Bill Blackwood LEMI of Texas

2180

NHTSA - ARIDE

2/7/2014

Bill Blackwood LEMI of Texas

3851

Breathalyzer / Intoxilyzer

9/27/2013

Unit Hours

Training Mandates

San Antonio College LEA

266

09/01/2011 - 08/31/2013

Course No. Course Title

Course Course Date Hours Institution

2045

Patrol Procedures

4/19/2013

San Antonio Police Academy

2046

Driving

4/19/2013

San Antonio Police Academy

2096

Arrest, Search & Seizure (Non-Intermediate Core Co

4/19/2013

San Antonio Police Academy

3018

Police Labor Relations

4/19/2013

San Antonio Police Academy

3159

Property Seziure and Forfeiture (General)

4/19/2013

San Antonio Police Academy

3305

Active Shooter Response

4/19/2013

San Antonio Police Academy

3340

Crowd Control

4/19/2013

San Antonio Police Academy

3342

Tactical Firearms Training

4/19/2013

San Antonio Police Academy

3343

Less Lethal Chemical Weapons Training (OC, Mace, e

4/19/2013

San Antonio Police Academy

3344

Less Lethal Electronic Control 4/19/2013 Device Training

San Antonio Police Academy

3854

Computer Operations

4/19/2013

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

4/19/2013

San Antonio Police Academy

3700

Management/Supervision

4/19/2013

San Antonio Police Academy

3308

Officer Safety/Survival

2/26/2013

Victoria College LEA

3800

Technical/Specialized

12/18/2012

Texas Municipal Police Association

3300

Patrol/Tactical

12/6/2012

Combined Law Enforcement Asso. of Texas

2178

S.F.S.T. Practitioner Update

10/4/2012

San Antonio Police Academy

3300

Patrol/Tactical

4/6/2012

San Antonio Police Academy

66701

FEMA NIMS Multi Coordi Sys 3/9/2012 (MACS) (FEMA IS-701a)

San Antonio Police Academy

3854

Computer Operations

San Antonio Police Academy

7/31/2019

3/9/2012

Training Mandates

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2011 - 08/31/2013

Course No. Course Title

Course Course Date Hours Institution

3340

Crowd Control

3/9/2012

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

3/9/2012

San Antonio Police Academy

3402

DWI/DUI Detection and Enforcement

3/9/2012

San Antonio Police Academy

2046

Driving

3/9/2012

San Antonio Police Academy

3182

82nd Legislative Session Legal Update

3/9/2012

San Antonio Police Academy 82nd Session State and Federal Law Update

3300

Patrol/Tactical

3/9/2012

San Antonio Police Academy

3700

Management/Supervision

3/9/2012

San Antonio Police Academy

3342

Tactical Firearms Training

3/9/2012

San Antonio Police Academy

3843

CIT-Update

3/9/2012

San Antonio Police Academy Crisis Intervention Training (Intermediate) issued prior to 4-1-18 Peace Officer Intermediate Options Peace Officer Intermediate Options 2009-09

2053

Baton (All)

3/9/2012

San Antonio Police Academy

3409

Crash Reporting & Analysis Course (TXDOT)

11/11/2011

San Antonio Police Academy

3851

Breathalyzer / Intoxilyzer

11/4/2011

San Antonio Police Academy

3214

Family Violence Web w/ Exercises

10/10/2011

Unit Hours

TCOLE Online

Training Mandates

Part 1 of 4 (POSEIT) Special Investigative Topics

180

09/01/2009 - 08/31/2011

Course No. Course Title

Course Date

3344

Less Lethal Electronic Control 7/15/2011 Device Training

2053

Baton (All)

Course Hours Institution 16

San Antonio Police Academy

6/15/2011

San Antonio Police Academy

2010

Auto Theft/Motor Vehicle Inv. 4/29/2011

San Antonio Police Academy

2031

White Collar Crimes

4/29/2011

San Antonio Police Academy

2046

Driving

4/29/2011

San Antonio Police Academy

3300

Patrol/Tactical

4/29/2011

San Antonio Police Academy

3341

Police K9 Training

4/29/2011

San Antonio Police Academy

3342

Tactical Firearms Training

4/29/2011

San Antonio Police Academy

7/31/2019

Training Mandates

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2009 - 08/31/2011

Course No. Course Title

Course Course Date Hours Institution

3343

Less Lethal Chemical Weapons Training (OC, Mace, e

4/29/2011

San Antonio Police Academy

3700

Management/Supervision

4/29/2011

San Antonio Police Academy

3939

Cultural Diversity

4/29/2011

San Antonio Police Academy Cultural Diversity (Intermediate)

3854

Computer Operations

4/29/2011

San Antonio Police Academy

6012

Health/Physical Fitness/Stress

4/29/2011

San Antonio Police Academy

3722

Peace Officer Field Training

7/24/2010

160

66700

FEMA National ICS (FEMA IS-700a)

5/7/2010

SAN ANTONIO POLICE DEPT. (Training Rosters)

66200

FEMA ICSSingle Res/Initial Action Inc(FEMA IS-200)

5/7/2010

SAN ANTONIO POLICE DEPT. (Training Rosters)

66100

FEMA Intro ICS (FEMA IS100a)

5/7/2010

SAN ANTONIO POLICE DEPT. (Training Rosters)

101

Addendum Basic Peace Officer

5/7/2010

570

San Antonio Police Academy

2054

Radar

5/7/2010

San Antonio Police Academy

3255

Asset Forfeiture

5/7/2010

San Antonio Police Academy Asset Forfeiture (Intermediate)

3256

Racial Profiling

5/7/2010

San Antonio Police Academy Racial Profiling (Intermediate)

3277

Identity Theft

5/7/2010

San Antonio Police Academy Identity Theft (Intermediate)

1999

Personnel Orientation by Dept. Basic Proficiency

5/7/2010

San Antonio Police Academy Personnel Orientation

3807

TCIC/NCIC for Less than Full 5/7/2010 Access Operators

San Antonio Police Academy

1000

Basic Peace Officer

3/4/2010

618

2176

S.F.S.T. NHTSA 24hour Practitioner - BPOC

3/4/2010

7/31/2019

Training Mandates

San Antonio Police Academy Peace Officer Field Training

San Antonio Police Academy Crisis Intervention Training (Mandate) Cultural Diversity (Mandate) S.F.S.T. NHTSA 24hour Practitioner Special Investigative Topic (Mandate) State and Federal Law Update San Antonio Police Academy

Page Number:

Texas Commission On Law Enforcement Personal Status Report Courses Completed 09/01/2009 - 08/31/2011

Course No. Course Title

Course Course Date Hours Institution

3842

3/4/2010

CIT(16hr)-BPOC

Unit Hours

1463

Total Hours

2151

Training Mandates

San Antonio Police Academy Crisis Intervention Training (AdvPOC) issued prior to 4-1 -18 Crisis Intervention Training (Intermediate) issued prior to 4-1-18 Peace Officer Intermediate Options Peace Officer Intermediate Options 1987-01 Peace Officer Intermediate Options 2005-01 Peace Officer Intermediate Options 2006-01 Peace Officer Intermediate Options 2009-09

Total Hours TotalTraining Hours From Education

2660

Total Course Hours

2111

Total Hours

4771

*Courses submitted between 09/01/2017 and 09/30/2017 will be credited to the 2015-2017 and 2017-2019 training unit, but will only count once toward total training hours.

7/31/2019

Page Number:

Gmail - Booking Photo Request

1 of 2

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Michael Gross <lawofcmg@gmail.com>

Booking Photo Request 3 messages Michael Gross <lawofcmg@gmail.com> To: record@bexar.org Please email me the booking photo for my client,

Thu, May 9, 2019 at 10:58 AM

, SID #

, date of arrest

. Thank you.

-Sincerely, Michael C. Gross Board Certified - Criminal Law & Criminal Appellate Law Texas Board of Legal Specialization Board Certified - Criminal Trial Advocacy National Board of Trial Advocacy Gross & Esparza, P.L.L.C. Website: txmilitarylaw.com 1524 N. Alamo St. San Antonio, Texas 78215 (210) 354-1919 (210) 354-1920 Fax Central Records <record@bexar.org> To: Michael Gross <lawofcmg@gmail.com>

Thu, May 9, 2019 at 11:13 AM

A n: Michael Gross

Please see a ached mug shot.

If you should have any questions, please feel free to contact our office.

Records Iden fica on Clerk Central Records Bexar County Sheriﬀ’s Oﬃce 200 North Comal San Antonio, TX 78207 Phone: (210) 335 – 6302 Fax: (210) 335 – 6195

5/9/2019, 11:23 AM

DEANDRA GRANT’S BLOOD DRAW ITEMS TO REQUEST AS POSTED ON THE TCDLA LIST SERVE 1. The protocol or standard operating procedure, by whatever name it is known, for all nurses who draw blood for purposes of blood alcohol testing. 2. Any logs, reports or spreadsheets, or other documents, in whatever form, indicating that protocol or standard operating procedure was followed in the blood draw at issue in this case and indicating where specifically the blood draw occurred (direct venipuncture vs. from indwelling IV line, location of venipuncture relative to indwelling IV lines, etc.) 3. Any logs, reports or spreadsheets, or other documents, in whatever form, indicating any IV solutions and/or medications given to the accused prior to blood being drawn. 4. All logs, reports, spreadsheets, or other documents, in whatever form, reflecting any lab abnormalities noted at the time the blood sample was collected. 5. The general laboratory protocol or standard operating procedures manual, by whatever name it is known. 6. The protocol or standard operating procedure, by whatever name it is known, specific to the test used in this case including the make and model of the chemistry analyzer used and the commercial name of the test kit used, along with a copy of the test cartridge packaging insert from the manufacturer. 7. The protocol for the preparation of all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested. 8. The quality control protocol for all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested. 9. All records reflecting internal testing or quality control testing of all solutions, reagents, or mixtures used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested. 10. If any solution used in any sample, internal standard, control, mixture, or standard in the batch in which the sample in this case was tested was purchased from an outside supplier, any quality control certificate provided by the supplier or manufacturer with or applicable to such solution. 11. Documents reflecting the expiration date of all externally purchased solutions or reagents used in the batch in which the sample in this case was tested.

12. All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case -- both for the three years preceding the test and for any such testing since the testing in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturers information sheet) against which the proficiency test results are judged. 13. All lab notes, case files, case reports, or bench notes, by whatever name known, and in whatever form, as well as all documents contained in the testing folder specific to the test in this case. This includes a copy of the case or testing folder itself if it contains any notations or entries. 14. All chain of custody documents and records, whether maintained manually or electronically generated, specific to the specimen(s) in this case. 15. All documents, whether manually maintained or electronically recorded. reflecting, evidencing, or concerning, the identity of any person(s) involved in the acquisition, transportation, transmittal, storage, analysis, disposal, or other possession or manipulation of the specimen(s) from which the analysis in this case was performed. 16. All documents, including emails, reflecting communications within the lab or between lab personnel and others outside the lab regarding the drafting or editing of any audit or quality control report or related to the analysis or specimens in this case. 17. All reports of internal audits for the last three years or since the time of the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, reagents, storage facilities, or anything else used in connection with the testing of the sample, internal standards, controls, mixtures, or standards in the batch in this test. 18. All reports of external audits for the three years preceding the test in this case and at any time since the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, storage facilities, or anything else used in connection with the testing of the sample, internal standard, mixtures, standards, and controls in the batch in this test. 19. All documents reflecting lab accreditation (for forensic labs, this specifically includes, without limitation ASCLD and DPS accreditation) and all reports to or of, or communications to and from, any accrediting entity in the three years prior to the test in this case and at any time since the test in this case. This specifically requests not only the accreditation certificate, but also the evaluation and report generated as part of the accreditation process. The documents should include any accreditation in effect at the time of the test in this case as well as any accreditation subsequent to the time of the test in this case. 20. If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

21. All Quality Action Plans for or regarding blood alcohol testing of or for any person listed on chain of custody documents in this case from two years prior to the test in this case to the present. 22.

Annual self assessment reports for from two years prior to the test in this case to the present.

23. All deviation request forms regarding blood alcohol testing from two years prior to the test in this case to the present. 24. The method used to transfer blood from the draw site to the lab. ie. In person delivery, pneumatic tube system, etc. 25.

Regarding any person listed on chain of custody documents in this case: A. Employee training record; B. Employment application excluding any personal data such as date of birth, address or social security number; C. All CV's and resumes; and D. Performance reviews for two years prior to the test in this case to the present

List of Potentially Discoverable Information Video Recordings Prior video recordings of that officer Recordings of other officers present Audio Recordings (officer) Radio communications between officers 911 recordings Police reports Arresting officer’s report Arresting officer’s other DWI reports Reports from other officers present Injured prisoner report Use of Force report (photographs) Supervisor reports Officer’s personal files (computer and written) Email/computer communications between officers NCIC/TCIC records TCOLE records Officer’s training records Officer’s employment application Officer’s Disciplinary History Department’s Procedures or Operations Manual (Standard Operation Procedures, etc) Dispatch Records to include any notes by the call taker GPS Records Computer communications between officers BOLO’s (Be On the Look Out) Vehicle records (installation of equipment, maintenance of equipment, etc) Ticket Information Database Gang Database Location/Call History Persons of Interest to Police Database Field Contact Database 911 Database Towing Report Consent to Search Forms Pursuit Report Drug Recognition Evaluation Log Intoxilyzer 5000 records Booking paperwork Mugshot Photographs Worksheets or Lineups (who was working and vehicles assigned)

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1 TAC § 159.103 Copy Citation This document reflects all regulations in effect as of July 31, 2019 TX - Texas Administrative Code ADMINISTRATIVE HEARINGS

TITLE 1. ADMINISTRATION

PART 7. STATE OFFICE OF

CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE

LICENSE SUSPENSION HEARINGS

SUBCHAPTER C. WITNESSES AND SUBPOENAS

§ 159.103. Issuance and Service of Subpoenas (a) A party that issues or is granted a subpoena shall be responsible for having the subpoena served. The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witnesss attorney. A subpoena may also be served by accepted alternative methods established by a peace officers law enforcement agency. (b) A subpoena must be served at least five days before the hearing. (c) After a subpoena is served upon a witness, the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. Upon the subpoenaed witnesss appearance at the hearing, the party that issued the subpoena shall tender a witness fee check or money order in the amount of $ 10 to the witness. In addition, if the witness traveled more than 25 miles round-trip to the hearing from the witnesss office or residence, mileage reimbursement must also be tendered at the same time. The amount of mileage reimbursement will be that listed in the state mileage guide at http://fmx.cpa.state.tx.us/fm/travel /travelrates.php. (d) If the hearing is conducted telephonically, the party that issued the subpoena shall mail the witness fee check or money order to the witness within one day of the conclusion of the hearing unless the witness fails to appear at the hearing. Also within one day of the conclusion of the hearing, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH. (e) If a party that served a subpoena on a witness fails to appear at a hearing, that party shall mail the witness fee check or money order to the witness within one day from receipt of a default decision or any other order issued by the judge ordering payment of the fee and mileage reimbursement. Also within one day from receipt of the judges order, the party shall forward to SOAH a certification that the witness fee or money order

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was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH. (f) If special equipment will be required in order to offer subpoenaed documents or tangible things, the party seeking their admission shall be required to supply the necessary equipment. The party requesting a subpoena duces tecum may be required to advance the reasonable costs of reproducing the documents or tangible things requested. (g) Service upon opposing party. (1) A party that issues a subpoena must serve the opposing party with a copy of the subpoena on the same date it is issued. (2) A party that requests a subpoena from a SOAH judge must serve the opposing party with a copy of the request at the time it is filed with SOAH. (3) When a subpoena has been served, and not less than three days prior to the hearing, a party that has served a subpoena must provide the opposing party with a copy of the return of service. (4) If a party fails to serve a copy of a subpoena or a subpoena return on the opposing party, the subpoena may be rendered unenforceable by the judge. (h) Continuing effect. A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or for protective order. If a hearing is rescheduled and a subpoena is extended, and unless the judge specifically directs otherwise, the party that requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date and serve a copy of the notice on the opposing party.

History SOURCE:

The provisions of this § 159.103 adopted to be effective January 20, 2009, 34 TexReg 330; amended to be effective December 10, 2014, 39 TexReg 9515; amended to be effective January 1, 2017, 41 TexReg 9459

Annotations

Research References & Practice Aids CROSS-REFERENCES: This Chapter cited in 1 TAC § 155.1, (relating to Purpose and Scope).

TEXAS ADMINISTRATIVE CODE

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37 TAC § 17.16 Copy Citation This document reflects all regulations in effect as of July 31, 2019 TX - Texas Administrative Code

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

DEPARTMENT OF PUBLIC SAFETY REVOCATION

PART 1. TEXAS

CHAPTER 17. ADMINISTRATIVE LICENSE

SUBCHAPTER A. ADMINISTRATIVE LICENSE REVOCATION

§ 17.16. Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed With the Department (a) Where authorized, required, or permitted by statute or rule, a Request for Production, Maintenance and Repair records, and/or any tangible/documentary evidence required to be served by the defendant on the department must be served on the department by one of the following methods: (1) by first-class mail, or by certified mail where required, addressed to Director of Hearings, ALR Program, Box 15327, Austin, Texas 78761-5327; (2) by telephonic document transfer (fax) to (512) 424-7171, to the attention of the Director of Hearings, ALR Program; (3) by hand delivery, during regular business hours, directly to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300. (4) by courier receipted delivery through a commercial overnight express delivery service to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300. (b) This section does not authorize or confer any discovery rights on a person or entity. (c) Any request for the appearance of the "breath test operator and/or breath test technical supervisor" at the ALR hearing, pursuant to Texas Transportation Code, § 524.039(a), must be made by one of the methods set forth in paragraph (a) of this section and must be received by the department at least five days prior to the scheduled hearing date.

History

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Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: Collateral Consequences of DWI Speaker:

Betty Blackwell

1306 Nueces St Austin, TX 78701-1722 (512) 479-0149 Phone (512) 320-8743 Fax bettyblackwell@bettyblackwell.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

COLLATERAL CONSEQUENCES OF DWI CONVICTIONS BY BETTY BLACKWELL ATTORNEY AT LAW BOARD CERTIFIED CRIMINAL LAW 1306 NUECES STREET AUSTIN, TEXAS 78701 512-479-0149 bettyblackwell@bettyblackwell.com

BIOGRAPHICAL INFORMATION EDUCATION Summa Cum Laude from Texas A&M with a B.A. degree J.D. with Honors, The University of Texas Law School Board Certified in Criminal Law PROFESSIONAL ACTIVITIES & AWARDS 2021 Distinquished Lawyer Award from the Austin Bar Association 2017 inducted into the Texas Criminal Defense Lawyer’s Hall of Fame 2016 awarded the Warren Burnett Award by the State Bar Legal Services to the Poor in Criminal Matters Committee Appointed by State Bar President to the Commission for Lawyer Discipline 2005-2011 Appointed as the Chair of the Commission for Lawyer Discipline for 2006-2011. President of the Texas Criminal Defense Lawyers Association 2001-2002 Chairman of the Criminal Justice Section of the State Bar of Texas, 2001 Governor George Bush’s Appointee to rewrite the Code of Criminal Procedure, 1996 Governor Ann Richard’s Appointee to the Texas Punishment Standard's Commission to rewrite the Penal Code, 1994 Past Chairman of the Criminal Law & Procedure Section of the Travis County Bar Past President and Founding Member of the Austin Criminal Defense Lawyers Voted Best Criminal Lawyer in Austin by the Austin Chronicle, 1994 Voted Best Trial Lawyer in Austin by the Travis County Women Lawyer’s Association, 1992 Presidential Award of Merit - TCDLA 1990, 1992, 1993, 1994 Ambassador Award, Austin Criminal Defense Lawyers Association, 1994 Super Lawyer by Texas Monthly and Texas Lawyer, 2007-2018 LAW RELATED PUBLICATIONS Co-author with Judge Tom Blackwell and Judge Michael McCormick of Texas Practice Volume 7, 7A and 8, published by West Publishing Co. Author/speaker for the State Bar of Texas Advanced Criminal Law, Criminal Law Boot Camp, & Law office Management of a criminal practice Former Adjunct Professor of Law, University of Texas, Criminal Defense Clinic

TABLE OF CONTENTS DRIVER’S LICENSE SUSPENSION ……………………..................p.4 DEFERRED ADJUDICATION ...........................................................p.7 SURCHAGES…………………………………......................................p.9 FINAL CONVICTIONS......................................................................p.10 OCCUPATIONAL DRIVER’S LICENSES………………………….p.11 MONITORS…………………………………………………………….p.12 COURT COSTS....................................................................................p.14 CONVICTIONS EFFECT ON PROFESSIONAL LICENSES ……p.15 PEACE OFFICERS…………………………………………………….p.16 TEACHERS…………………………………………………………….p.18 ATTORNEY’S BAR LICENSE……………………………………….p.20 CRIMES OF MORAL TURPITUDE…..…………………………….p.20 ORDER FOR NONDISCLOSURE……………………………………p.22 PROCEDURE FOR NONDISCLOSURE……………………………p.22 GUNS……………………………………………………………………p.24 IMMIGRATION……………………………………………………….p.26 FINANCIAL AID……………………………………………………….p.27 VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p.27 CONCLUSION………………………………………………………….p.28

Collateral Consequences of DWI Convictions

Driver’s License Suspension DWI 1st offense is a Class B misdemeanor which if probated does not result any driver’s license suspension, as long as the defendant completes the DWI education course within 6 months of being placed on probation.Article 42A.406 CCP. Starting 9/1/2019 the defendant arrested on or after that date is eligible for deferred adjudication with an interlock device as long as the defendant did not have a commercial driver’s license. The Transportation Code only refers to “convictions” and “final convictions” under Article 49 being subject to driver’s licenses suspension, so that a deferred adjudication should not result in any additional license suspension. If the sentence is probation, on a 1st offense, the trial court is without authority to order a corresponding license suspension as long as the condition of probation includes the required alcohol education course. Love v. State, 702 S.W.2d 319 (Tex. App. Austin 1986). However, beware of Burg v. State, 592 S.W.3d 444 (Tex. Crim. App. 2020) which held this issue could not be raised for the 1st time on appeal as an illegal sentence. The Court held that the license suspension is not part of the sentence or probation terms, and thus did not affect the legality of the sentence. The objection to suspending the license of a 1st time probated DWI, with the education course required, must be raised at the trial court to appeal any adverse decision. If the sentence is a jail sentence, the license is automatically suspended under Transportation Code §521.341 from 90 days up to one year per Transportation Code §521.344. The code states that the court shall grant the defendant credit against the suspension for the Administrative License Revocation suspension for failure of a breath or blood test or refusal to provide a specimen [referred to as ALR credit] against this mandatory suspension and the suspension may begin no later than the 30 th day after the conviction as set by the court. See §521.344(c) Transportation Code for credit for refusal ALR suspension and §524.023(b)Transportation Code for credit for failure ALR suspension. Credit can only be applied to a 1st offense

DWI. Even if the DWI 2nd is reduced to a DWI-1st conviction, DPS will not honor a request for credit for the ALR suspension as the Transportation Code states the credit can not be extended to a person who has been previously convicted for an offense under §49.04. DPS has in the past interpreted “has been convicted” to exclude cases in which the person received deferred adjudication. Thus it remains to be seen if a person has completed deferred adjudication for a DWI case and is subsequently convicted in a subsequent DWI case, whether the court can award credit for the ALR suspension that DPS will honor. DWI with .15 or higher is a Class A misdemeanor with no mandatory jail time, but if probation is granted, an ignition interlock device is required for ½ the term of probation. §521.344 (d)(2) of the Transportation Code provides that DPS may not suspend the driver’s license for someone placed on community supervision who is required to not operate a motor vehicle unless the vehicle is equipped with an interlock device. There is no driver’s license suspension as long as the person receives community supervision and is required to complete an education course, within 6 months of being placed on probation. DWI-1st offense under 21 years of age is either a Class B misdemeanor or a Class A misdemeanor if the alcohol concentration is .15 or higher. If the person is younger than 21 years of age at the time of the offense, the judge who places the defendant on community supervision must suspend the driver’s license for 90 days beginning on the date of the community supervision. Article 42A.407 (f)C.C.P. The judge must order as a condition of community supervision, that the defendant not operate any motor vehicle unless it is equipped with an ignition interlock device. Article 42A.408(e)C.C.P. If the sentence is a jail sentence and not community supervision, then the license suspension is for one year. See §521. 343 Transportation Code. There is no ALR credit available to someone under 21 years of age at the time of the DWI offense. §521. 344 (c)(2) Transportation Code. DWI-2nd offense’s range of punishment is from 30 days up to one year in jail and/or up to a $4000.00 fine. The jail time can be probated, but 42A requires at least 72 hours of continuous confinement. Article 42A.401(a)(1) C.C.P. The jail time on a 2nd offense probation is up to a maximum of 30 days as a condition of probation. The license suspension is from 180 days up to two years. However if the prior DWI offense date is within 5 years of the conviction date, then the minimum license suspension

is one year and the minimum jail time as a condition of probation is 5 days. See Article 49.09(h) Penal Code. The trial court does not have to give the defendant credit for time already served against the mandatory 72 hours of confinement. Martinez v. State, 427 S.W.3d 496 (Tex. App. San Antonio 2014) An open plea could not be set aside based on a claim of involuntariness, even though the defendant believed that she would not receive jail time. She had pled unnegotiated to a DWI-2nd offense, which the appellate court noted required jail time as a condition of probation. Cortez v. State, 971 S.W2d 100 (Tex. App. Ft Worth 1998) This analysis would be the same, if the defendant pled guilty believing the driver’s license would not be suspended, but was notified by DPS that it was in fact suspended due to the conviction. The driver’s license suspension for a 2nd offense is mandatory and no ALR credit can be given toward this suspension. Article 42A.407(b) C.C.P. starts out with the words “Notwithstanding Section 521.344(d-i), Transportation Code” which means that the Transportation Code provisions about not suspending the license if an educational course are required as a condition of probation, do not apply to convictions for 2 nd and 3rd DWI offenses. The Texas Department of Public Safety will impose a one year suspension if they receive notice the defendant is required to attend a subsequent educational program, even if the charge is reduced to a DWI-1st offense, if the driving record reflects that the defendant has previously been required to attend an educational program, or it has been waived. See Article 42A.407 C.C.P. Felony DWI: The driver’s license suspension is from 180 days up to two years, with no credit for any ALR suspension. If the prior conviction is within 5 years, under Section 49.09(h), the driver’s licence suspension must be for a minimum of one year, up to two years. Probation including an interlock device, and required educational course will not prevent DPS from suspending the license, if the trial court fails to impose a suspension. See Article 42A.407(c)C.C.P. Driving While Intoxicated with child passenger younger than 15 year of age, is a state jail felony. Section 521.344 of the Transportation Code, states that anyone convicted under §49.045 is subject to a driver’s license suspension of not less than 90 days or more than one year. However, §521.344 (d) provides that DPS may not suspend the license if the person is required to complete an educational program during a period of probation.

Article 42A.407 C.C.P. and §521.344 (d)(1) provide that the defendant may request that the jury make a recommendation about whether the driver’s license should be suspended, if the jury recommends community supervision. If the jury recommends against a suspension, none shall be entered by DPS. Intoxication assault that does not involve injury to a specified person listed in §49.09(b-1) Penal Code, [firefighter, ems, police officer or judge], it is a 3rd degree felony requiring a minimum of 30 days in jail, if the sentence is probated. If the person caused another to suffer a traumatic brain injury that results in a persistent vegetative state, it is a 2 nd degree felony under §49.09(b-4) Penal Code. If a jury recommends community supervision, they may also recommend that the driver’s license not be suspended. Otherwise Section 521.344 Transportation Code provides that driver’s license can be suspended from 90 days up to one year. Intoxication Manslaughter that does not involve the death of a specified person in §49.09(b-1) is a 2nd degree felony requiring a minimum of 120 days of confinement, if the sentence is probated. It is a 1 st degree felony if the victim is a firefighter, EMS, peace officer or judge. If a jury recommends community supervision, they may also recommend that the driver’s license not be suspended. Section 521.344 Transportation Code provides that the license may be suspended by the Court for not less than 180 days or more than two years. 2019 legislation (Deferred is back) H.B. 3582 is effective September 1, 2019 and it amends Article 42A.102(b) allowing deferred adjudication for 1st DWI & BWI occuring on or after 9/1/2019 unless the defendant held a commerical driver’s license, or had an alcohol concentration of 0.15 or more. The court shall require as a condition of the community supervision that the defendant have an ignition interlock device installed and that the defendant not drive a motor vehicle without that device. The judge may waive the interlock requirement, if based on a controlled substance and alcohol evaluation of the defendant, the judge determines and enters in the record that the interlock is not necessary for the safety of the community. Article 49.09(g) Penal Code is amended to provide that for the purposes of this section, deferred adjudication can be used for enhancement for a subsequent DWI charge.

The issue is whether DPS will interpret a deferred adjudication as a conviction for driver’s license issues. Under the Transportation Code and Code of Criminal Procedure, driver’s licenses are only suspended for those under 21 upon conviction of a DWI. If deferred adjudication is not a conviction for those sections of the law, then DPS could honor a court order not to suspend the license of a person under 21. A phone call to DPS Enforcement and Compliance division resulted in a manager stating that the DIC-17 is not sent to DPS on any deferred adjudication, and this was confirmed with our local county clerk’s office so that no license suspension should result. Deferred adjudication and the use of prior probations in DWI cases Beginning in 1979, the Legislature amended Article 42.12 CCP, now Section 42A.102, to delineate that DWI offenses were not eligible for deferred adjudication.The Legislature, effective September 1, 1997, created a new class C offense of Driving with a Detectable Amount of Alcohol by one who was under 21 years of age. DUI minor cases are eligible for deferred disposition which has caused confusion by many with deferred adjudication. Starting January 1, 1984, a sentence on a DWI was considered a final conviction for enhancement purposes regardless of whether it was probated or not. See §49.09(d) Penal Code. Though this section refers to a date of September 1, 1994, case law makes it clear that the prior law which allows probation to be used for enhancement, is still in effect for all offenses committed after January 1, 1984. Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999). The legislature eliminated the remoteness rule, effective September 1, 2005. Previously, DWI convictions from more than 10 years prior to the new arrest date could not be used for enhancement purposes. The date of the probation is important because probated sentences prior to January 1, 1984, including prior deferred adjudications, can not be used for enhancement purposes. State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) The finality of probation did not originally apply to intoxication assault and manslaughter cases. Probation in those cases became final convictions on or after September 1, 1994. Ex parte Roemer, 215 S.W.3d 887 (Tex. Crim. App. 2007). Use of a completed deferred adjudication on an offense committed before 1979, for enhancement would violate the Ex Post Facto provisions of the Texas Constitution. See Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001)

The 2005 DWI enhancement provision removing all time limitations on the use of prior DWI convictions was held to not violate the prohibition against ex post facto laws. Englebrecht v. State, 294 S.W.3d 864 (Tex. App. Beaumont 2009) However, both the conviction date and the offense date must occur after January 1, 1984, in order for the conviction to be used for enhancement. Nixon v. State, 153 S.W.3d 550 (Tex. App. Amarillo 2004). The issue that has arisen involves a probation that has been completed, and whether a completed felony probation on a DWI can be used to raised the next felony DWI from a 3rd degree felony to a 2nd degree felony. Article 49.09(d) treats probation as a final conviction only “for purposes of this section”. Chapter 12 Penal Code, sets out the enhancements provision of a 3rd degree felony based on the defendant having been finally convicted of a felony other than a state jail felony. Section 49.09(g) states that a conviction can be used for enhancement under Chapter 49 of the Penal Code or Chapter 12 of the Penal Code, but not both. Rivera v. State, 957 S.W.2d 636 (Tex. App.Corpus Christi 1997). The prior completed felony probation will prohibited the person from receiving community supervision on a subsequent felony DWI conviction as the prior is a conviction which makes the defendant ineligible for a subsequent probation from a jury. The Court of Criminal Appeals has held that even in cases where the trial court has granted judicial clemency, the defendant is still ineligible for probation from a jury. Yazdchi v. State, 428 S.W.3d 831 (Tex. Crim. App. 2014) Surcharges 2019 Legislation: The DPS surcharge is repealed!! H.B. 2048 repeals Chapter 708, Transportation Code as of September 1, 2019. In addition it states that DPS shall reinstate any driver’s license that is suspended under Section 708.152, if the only reason the driver’s license is suspended is failure to pay a surcharge under chapter 708. However, H.B.2048 creates a new Chapter 709 to add a new “fine” to convictions for DWI. On a final conviction the person shall pay a fine of : (1)

$3000.00 for the first conviction within a 36 month period;

(2)

$4500 for a second or subsequent conviction within a 36 month period; and

(3)

$6000.00 for a first or subsequent conviction if it is shown on the trial of the offense that an anlysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

If the court makes a finding that the person is indigent, the court shall waive all fines and costs imposed under this section. This money is paid to the county and they may retain four percent of the money collected. Failure to pay does not result in the suspension of the driver’s license. Texas District and Count Attorney’s Association has published in their 2019 Legislative Update their opinion that this new “fine” only applies to DWI jail sentences because the legislation does not define final conviction to include probated sentences as did the previous Section 708 of the Transportation Code. It would not apply to any of the new deferred adjudication sentences. They also stated that to avoid ex post facto and retroactive law prohibitions of the U.S. and Texas constitutions, the new “fine” wil only apply to offenses after September 1st, 2019. Final convictions without probation Credit for an ALR suspension can only be applied to suspension for convictions of 1st offense DWI cases, over 21 year of age at the time of the offense. It is possible to be sentenced to 3 days in jail with a 90 day license suspension with credit for the 90 day license suspension imposed at the Administration License Revocation and court costs. The prosecutor must agree that the suspension be set at 90 days, as it is up to a maximum of one year suspension, but the Transportation Code mandates credit for the ALR suspension. The new “fine” will still be assessed unless the person is indigent and the court makes that finding. Many defendants consider the possibility of taking a final conviction (jail sentence) on misdemeanor DWI cases to avoid all the conditions of probation and the interlock device. However, if the license is suspended for potentially up to two years, the defendant will still be required to obtain the interlock device if they apply for an occupational license under §521.246 of the Transportation Code. Other Driver’s license suspensions upon conviction: Racing, §545.420 Transportation Code Theft of motor fuel §521.349 Transportation Code

Furnishing alcohol to a minor §106.06 alcohol Beverage Code Purchase or possession or consumption of alcohol by a minor in violation of §106.071 Alcohol Beverage Code will result in a 30 day license suspension for a 1st offense unless deferred disposition is granted. Possesson of a fake driver’s license §521.451 or §521.453 Graffiti §521.320 Transportation Code Fake License Plate §502.409 Criminal Negligent homicide and manslaughter with a motor vehicle §521.341 Transportation Code Evading arrest §38.04 Penal Code, suspension listed in §521.341 Transportation Code. Accident involving death under §550.021Transportation Code, the suspension is authorized in §521.341 Transportation Code §521.341 of the Transportation Code requires proof of a final conviction for the license to be suspended so that deferred adjudication would not result in the license being suspended. Tampering with a government record which is a motor vehilce registration nor license under §37.10 Penal Code will result in a license suspension upon final conviction pursuant to §521.3466 Transportation Code Drug offenses under the Texas Controlled Substances Act carry a 180 day minimum suspension under §521.372 which also requires a final conviction. Occupational Driver’s licenses §521.242 Transportation Code provides that an application for an occupational license must be filed in the court in which the person was convicted if that conviction automatically suspended their driver’s license. Over the years the legislature would add restrictions to this section, including that the person could not have been issued more than one occupational license in the 10 years preceding the petition, after a conviction. The state was entitled to receive notice of the application if the license was suspended for an offense under Sections 49.04-49.08 or Section 19.05 of the Penal Code or Section 521.342 Transportation Code. §521.245 of the Transportation Code was added to require alcohol counseling for an ALR suspension. This section requires a showing of essential need and §521.248 Transportation Code restricts the driving to 4 hours in a 24 hour period or 12

hours if a necessity is shown and it requires the court to set the days of the week and the areas or routes of travel permitted and the reasons for the driving. In 2001 the Legislature added §521.251to the Transportation Code to provide for black out periods where a person was ineligible to apply for an occupational license based on their history of suspensions, the longest of which was a one year prohibition based on a subsequent conviction suspension within 5 years. Finally the Legislature realized that the better practice was to allow individuals to apply for and receive an occupational license, but to require the installation of an interlock device. Starting in 2015, the Legislature added §521.246 to the Transportation Code to require the installation of an ignition interlock device for an occupational license based on a conviction for an offense under section 49-04-49.0, Penal Code. §521.246(e) allows the person to drive a work vehicle without an interlock device but with some strict requirements, including notifying the employer. Most importantly, the Legislature removed any requirement of showing an essential need to drive (§521.244(e) Transportation Code), and they removed any restriction for time of travel, reasons for travel, or location of travel, if the occupational license restricts their driving to a motor vehicle equipped with an ignition interlock device (§521.248 (d) Transportation Code). §521.251 of the Transportation Code was amended to add section (d-1) which removed the black out periods for occupational licenses based on the previous suspension for an “alcohol related contact”, if the person submits proof that they have an ignition interlock device installed on each motor vehicle owned or operated by the person. The person must still obtain SR-22 insurance. Another improvement to the occupational license law, was permitting the justice of the peace to issue occupational licenses for non-DWI conviction suspensions. This means that all ALR suspensions can apply in JP court where the court costs are a fraction of the costs in county and district court. Monitors Ignition Interlock Device All second and subsequent DWI offenses are required to obtain an ignition interlock device as a condition of community supervision for at least ½ the term of probation. A condition of probation shall require that the

defendant not operate any motor vehicle that is not equipped with the device. A DWI with a finding of .15 or higher at trial of the offense, is also required to obtain the ignition interlock device. Article 42A.408 (c)(1)Code of Criminal Procedure. Ignition interlock devices can be avoided, if the prior conviction was more than 10 years before the instant offense and the person has not been convicted of a DWI within the 10 year period. However, Article 42A.408(b) of the Code of Criminal Procedure states that a judge “may” order the device on any DWI probated sentence. The ignition interlock requirement is not required, if the employer has been notified of the driving restriction and proof of the notification is with the vehicle. The employment exemption does not apply to vehicles owned by a business that is owned by the defendant. Article 49.09(h) Penal Code mandates the court to enter an order requiring the ignition interlock device on all cases of conviction of second or subsequent offense within five years of the date on which the most recent offense was committed regardless of whether the person is granted community supervision. This section further requires the restriction to continue until the first anniversary of the ending date of the license suspension under Section 521.344, Transportation Code. The Court retains jurisdiction over the defendant until the device is no longer required, failure to comply is punishable by contempt, and Article 49.09(h) Penal Code controls over Article 42A, Code of Criminal Procedure. Scram: Mathis v. State, 424 S.W.3d 89 (Tex. Crim. App. 2014) held that the trial court had the authority to order that the defendant be fitted with a secure continuous remote alcohol monitor (SCRAM) device. This is an ankle monitor that detects consumption of alcohol. The case was remanded to determine whether the defendant would be able to pay, without undue hardship, for the device. The trial court must consider the defendant’s financial ability in deciding whether to order the defendant to pay for the device. But the case makes it clear that the trial court had the authority to order the use of the monitor, particularly if the county paid for it. Monitors as a condition of bond: Article 17.441(a) C.C.P. states that a defendant charged with a subsequent offense under Section 49.04-49.08, Penal Code shall be required to install and ignition interlock device and to not operate a vehicle unless it is equipped with the device. The magistrate may not require the installation,

if they find that to require the device would not be in the best interest of justice. Many counties require the defendant to obtain a portable alcohol monitor or a Scram ankle monitor, if they are not driving. It is, therefore, a condition of bond to not consume alcohol at all during the pendency of the case.

Court Costs Costs of the police responding to an accident which resulted in a DWI conviction can be included in the court costs. On all DWI cases there is an insurance surcharge for 3 years. See Texas Insurance Code 5.03-1 Section 1. Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017) held the statute allowing court costs in a criminal case for rehabilitation and abused children counseling, violated the separation of powers prohibition of the Texas Constitution, and held that the application of this would be prospective only. Thus began an attack on numerous other court costs attached to convictions. Penright v. State, 537 S.W.3d 916 (Tex. Crim. App. 2017) applied Salinas, as the case was on appeal when Salinas was decided. In Casas v. State, 524 S.W.3d 921 (Tex. App. Ft. Worth 2017), the court that in DWI cases, the $100.00 court cost assessed for the emergency services was facially unconstitutional as it was a tax since it did not direct that the funds be used for a legitimate criminal justice purpose. The court may collect fees if the statute provides that the fees are to be expended for a legitimate criminal justice purpose. 2021 Legislation: SB 41 is an omnibus court cost bill that amends, repeals and adds more than 115 different statutes across 11 different codes, in order to fix a lot of the issues being raised in the case law. ABILITY TO PAY 2021 Legislation: Article 42A.655 of the Code of Criminal Procedure is amended by the 87 Legislature, effective September 1, 2021, to change the way the court considers a defendant’s ability to pay before ordering payments as a condition of probation. Restitution is excluded for any consideration of ability to pay. Monthly probation fees cannot be reduced or waived for th

indigent clients unless all additional payments owed are waived first and the court determines the defendant still cannot pay. The Defendant can periodically ask the court to reduce or waive or impose alternative means of satisfying payments and the court on its own motion or at the prosecutor’s request may reconsider a reduction or waiver of a payment after providing written notice to the defendant and an opportunity to be heard.

Conviction effect on Professional Licenses Chapter 53 of Texas Occupations Code sets out the possible impacts that a criminal conviction can have upon a professional license. This particular code does not apply to attorneys, police, or medical personnel as they are regulated by different codes. Section 53.021(b) previously stated that the licensing authority had the discretion to suspend or revoke a license, disqualify a person from receiving a license, or deny a person the opportunity to take a licensing exam for any offense committed less than five years before the date the person applies for the license. HB1342 amended this section to delete that provision effective 9/1/2019. Now a license may be denied, or revoked upon conviction for an offense relating to the duties and responsibilites of the licensed occupation; an offense listed in Article 42A.054CCP; or a sexually violent offense. This provision covers licenses issued to professions from Electrician, Barbers, plumbers, child care administrators, fish farmers, air conditioning contractors, stenographers, occupational therapists, physical therapists, massage therapists, polygraph examiners, nursing facility administrator, teachers, professional counselors, professional engineers, fire protection system contractor, interior designers, chiropractors, land surveyors and many many others. Some professions are covered by their own statute, like attorneys, doctors and nurses and accountants. Rule 501.90 of the Texas State Board of Public Accountancy’s “Rule of Professional Conduct” states that a person shall not commit a discreditable act, which includes a criminal prosecution involving alcohol abuse or controlled substance. A CPA must disclose if they are ultimately convicted of the DWI-1st offense and the advisor told them that they would more than likely not lose their CPA license, but they would be referred to the

“Accountants Confidential Assistance Network”. Doctors and nurses, licensed by the Medical Board have a similar referral program of Peer Assistance, which can have the requirement of inpatient treatment, followed by random and often urine testing which is required to maintain their license, even on 1st offense DWI cases. Pilots licenses are put on a medical deferment because of a DWI arrest. For an excellent discussion of what to expect and how a pilot can return to flying status see the September 2020 issue of Voice for the Defense. Peace officers Occupational Code §1701 sets out that any person convicted of a felony is disqualified from being a police officer. The Texas Commission on Law enforcement is charged with licensing police officer and if someone is already a police officer and is charged with a felony and placed on community supervision, their license is suspended for thirty years unless revocation is required under §223.19 of the TCLO manual. If the person is convicted or placed on community supervison for any offense above a class C misdemeanor it may be suspended for 10 years with suspension for a class A must be at least 120 days and Class B at least 60 days. Title 37 of the Texas Administrative Code § 223.19 states that the peace officer’s license must be immediately revoked upon conviction of a felony. Occupation Code §53 sets out in what situations deferred adjudication shall not effect a license under that Code and then states that it does not apply to law enforcement. Texas commission on law enforcement hand book is available on line at http://www.tcole.texas.gov/sites/default/files/Rules%20Handbook%202-1-2020.pdf

But beware other rules that may cause the individual agency to decide a certified peace officer is unemployable. Such as the new rules were enacted and adopted by Texas DPS concerning who has access to the TCIC and NCIC: TEXAS CJIS SYSTEMS ACCESS POLICY APPLICANT’S, EMPLOYEE’S, AND CONTRACTOR’S CRIMINAL HISTORY RECORD INFORMATION

ORIGINAL APPLICATION FOR ACCESS

FELONY CONVICTION Permanent Disqualifier

PERSON WHO ALREADY HAS ACCESS

Permanent Revocation of Access

FELONY DEFERRED ADJUDICATION Permanent Disqualifier Suspension of Access for 20 years CLASS A MISDEMEANOR CONVICTION Permanent Disqualifier Suspension of Access for 10 years CLASS A MISDEMEANOR DEFERRED ADJUDICATION Permanent Disqualifier Suspension of Access for term of deferral CLASS B MISDEMEANOR CONVICTION Disqualifier for 10 years Suspension of Access for 10 years CLASS B MISDEMEANOR DEFERRED ADJUDICATION Disqualifier for 10 years Suspension of Access for term of deferral OPEN ARREST FOR ANY CRIMINAL OFFENSE (FELONY OR MISDEMEANOR) Disqualifier until disposition Maintain Access pending court disposition FAMILY VIOLENCE CONVICTION OR DEFERRED ADJUDICATION Permanent Disqualifier Permanent revocation of Access

This System Access Policy applies to commissioned peace officers, terminal operators and others with network access to CJI systems, as well as, an employee who may have access to an area where this information is received, maintained or stored either manually or electronically if having access is not part of their job. (i.e. custodian, maintenance). Both Class A and Class B convictions/deferred adjudications can receive an agency sponsored waiver after 5 years from final disposition. If approved, agency sponsored waivers are only valid at that agency and cannot transfer with the individual. Waivers submitted where the individual has multiple convictions/deferred adjudications for class A misdemeanors or above will NOT be considered unless the individual holds an active valid license from the Texas Commission on Law Enforcement (TCOLE). The Department will not revoke a peace officer’s access as long as the TCOLE license remains valid and active regardless of the number of non-felony convictions on the officers criminal history background. Offenses that were committed while the individual was a juvenile will receive the same consideration and will be held to the same standard as adult offenses. Deferred Adjudications where the subject’s conviction has been set aside resulting in the proceedings being dismissed and the individual discharged are not considered a permanent disqualifier. The criminal history will display a disposition coding of PROCEED DISM/DEF DISCHARGED. Please note a subject being solely discharged from deferred adjudication is a permanent disqualifier. Revised 01/01/2019

Teachers and Public and Private Schools When a teacher is hired in the State of Texas, beginning in 2007, they are required to provide their fingerprints and photograph to the DPS vendor’s FAST program and have them on file with a clearinghouse. The fingerprints are placed into a fingerprinting and registry system that monitors all state and federal fingerprinting in reference to criminal arrests. If a teacher is fingerprinted in a jail in the state of Texas, and email will be sent to the school on file with the notation to the school that there has been a

change in the teacher’s criminal history. Most principals are aware of the arrest of one of their teachers before the person is released from jail. School districts are allowed access to criminal history records for all employees and volunteers, which includes records that have been subject to an Order for Nondisclosure. Each school district will also have its own local rules concerning criminal history termination which can be found in the employee handbook or manual. Failure to disclose a conviction for a felony or misdemeanor involving moral turptiude allows a school district to discharge the person. See Texas Administrative Code, Title 19, Chapter 153.1107. §22.085 of the Education Code states that the school discharge shall discharge an employee convicted of a sex offense, an offense under Title 5 of the penal Code which is offenses against the person and the victim was under 18 years of age, except if the date of the offense is 30 years before. §21.060 of the Texas Education Code sets out which offenses the Board may revoke, suspend or refuse issuance of a license when the offense relates to the duties and responsibilities of the education profession. The State Board of Education Commission states that it does not believe that an isolated DWI would result in any sanction, however they allow local school districts to have their own policies. In the Austin Independent School District manual, it lists crimes of moral turpitude to include but not limited to dishonesty; fraud; misrepresentation, deliberate violence; base, vile, or depraved acts that are intended to arouse or gratify the sexual desire of the actor; drug or alcohol related offenses. The AISD manual also states that the District shall not disqualify a person based solely on an arrest. The District may make an employment decision based on the conduct underlying the arrest if the conduct makes the person unfit for the position in question. Others people having contact with students: In 2009 the Texas Legislature passed Senate Bill 9 requiring background checks for anyone who has access to student in the school setting. Everyone must undergo a criminal background check, including employees, volunteers, student teachers and contractors. The fingerprints will be submitted to DPS and kept on file so that any future criminal proceedings will be reported to the school. Criminal history that will render one ineligible includes convictions for felonies and misdemeanors involving moral turpitude. Texas Education Code §21.060.

Attorney’s Bar License Compulsory Discipline 8.01 of the Rules of Disciplinary Procedure: When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication. Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary. Because DWI does not have a culpable mental state, it will not qualify as an intentional crime. Serious Crime means barratry; any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes. In re Locke, 54 S.W.3d 305 (Tex. 2001) held that a conviction for possession of a controlled substance is not a serious crime and therefore the attorney is not subject to compulsory discipline. Mandatory reporting of a conviction by the attorney: Beginning June 1, 2018, the Supreme Court’s amendment to Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct takes effect. Rule 8.03 (e) was added to require that a lawyer convicted or placed on probation, with or without adjudication, by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property, must notify the chief disciplinary counsel within 30 days of the date of the order or judgment. This notice must include a copy of the order or judgment. Driving While Intoxicated, misdemeanor, offense would not be reportable. Crimes of Moral Turpitude: Crimes of moral turpitude, like felonies can affect a person’s ability to be licensed and to obtain security clearances. Moral turpitude is defined as conduct that is base, vile or depraved and something that is inherently

immoral or dishonest. Ludwig v. State, 969 S.W.2d 22 (Tex. App. Ft. Worth 1998) Crimes that have been defined as involving moral turpitude are: Prostitution, Holgin v. State, 480 S.W.2d 405 (Tex. Crim. App. 1972) Theft, Benshaw v. State, 88 S.W.2d 495 (Tex. Crim. Ap. 1935) Bail Jumping, Lopez v. State, 990 S.W. 2d 770 (Tex. App. Austin 1999) Assault by a man against a woman, Hardeman v. State, 868 S.W.2d 404 (Tex. App. Austin 1993) Failure to identify, Lape v. State, 893 S.W.2d 949 (Tex. App. Houston 14th Dist. 1994) Violation of a protective order when underlying offense is family violence, Smith v. State, 439 S.W.3d 451 (Tex. App. Houston 1st 2014) Indecent exposure, Polk v. State, 865 S.W.2d 627 (Tex. App. Ft. Worth 1993) Crimes that do not involving mortal turpitude are: DWI. Stephen v. State, 417 S.W.2d 286(Tex. Crim. App. 1967) Possession of marijuana, Hernandez v. State, 976 S.W.2d 753 (Tex. App. Houston 1st 1998) 2021 Legislation: Article 42A.111 (c-1) is added by the 87th Legislature to prevent a dismissal and discharge of a deferred adjudication from being used as grounds for denying the issuance of, suspending, or revoking a professional or occupational license or certificate of a defendant who would otherwise be entitled to or qualified for the license or certification. The exception is subsection (d) include use in criminal cases, licensure needed for work in child-care, sex offenders services, law enforcement, or anything with direct contact with child; and deferred adjudication for 42A.054(a) [formerly “3g” offenses], offenses, requiring sex offender registration; or sexual offense or public indecency offense, or related to the activity or conduct of which the person seeks or holds the license. This new limitation only applies to those placed on deferred adjudication for offense committed on or after September 1, 2021. So a misdemeanor DWI deferred discharge should not be grounds for denial of a license, except for law enforcement or teachers or others with direct contact with children.

Orders for Nondisclosure DWI cases Effective 9/1/2017 certain 1st offense DWI cases are eligible for nondisclosure orders. Convictions under §49.04 Penal Code, other than those punishable under (d), which involves a alcohol concentration of 0.15 or higher, are eligible, if they were placed on community supervision under Chapter 42A, CCP. The petitioner must have completed community supervision, satisfy the requirements of Section 411.074 Government Code and they must not have been previously convicted of or placed on deferred adjudication community supervision for another offense other than traffic. After notice to the state, the court shall issue the order if it determines that it is in the best interest of justice. The Court may not issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in a vehicle operated by the person seeking the Order. The person may petition the court only after 2 years from the completion of community supervision, if the person successfully complied with a condition, that for a period of not less than six months, restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device. If there was no interlock requirement, the person must wait until 5 years after the competion of the community supervision. See §411.0731, Government Code. §411.0736 Government Code applies to 1st offense DWI cases under §49.04, Penal Code, that are not shown to have an alcohol concentration of 0.15 or higher under §49.04(d) Penal Code and that do not qualify under §411.0731 for an order of nondisclosure. If a person completes their sentence, including a term of confinement, payment of all fines, costs and restitution, they may petition the court if they meet the requirements of §411.074 and they have never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense. After notice to the state, and a determination that it is in the best interest of justice, the court shall issue the order. The court can not issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in the vehicle operated by the petitioner. The person may petition the court only after 3 years from the completion of the sentence, if the sentence included at least 6 months of restriction the person’s operation of a motor vehicle to a vehicle equiped with an interlock

device. Otherwise the person must wait 5 years from the date of completion of the sentence, if there was no interlock requirement. State v. L.P., 525 S.W.3d 418 (Tex. App. Ft. Worth 2017) held that there court of appeals lacked jurisdiction to hear an appeal by the state of an order granting a nondisclosure. 2019 Legislation: H.B.3582 amends Section 411.0726 to allow an order for nondisclosure in the new DWI deferred adjudication cases. There must be no affirmative finding under Article 42A.105(f), that is, that the judge has determined that it is not in the best interest of justice that the defendant receive an order for nondisclosure. The defendant must satisfy Section 411.074 and must never have been previously convicted of or placed on deferred adjudication for another offense, other than traffic offenses. They may apply only on or after two years from the date of discharge and dismissal of the case. The court may not grant the order if the state presents evidence that the offense resulted in a motor vehicle accident involving another person, including a passenger.

Procedure to apply for an Order of Nondisclosure The person shall petition the court that placed the defendant on deferred adjudication by paying to the clerk of the court the fee of $28.00. For DWI nondisclosure petitions, there is a separate requirement that it must include evidence that the person is entitled to file the petition. Some counties require a certified copy of the arrest record to be attached to the petition. When an order is issued, the clerk of the court shall send a copy of the order by certified mail, to the Crime records Service of the Department of Public Safety. They shall send a copy to all law enforcement agencies, courts, prosecuting attorneys or other entities and to the central federal depositories, that there is reason to believe have criminal history record information that is subject of the order. Information is not subject to a public records request, if an order for nondisclosure has been issued. A person who has obtained an order for nondisclosure of the deferred adjudication, may deny the occurrence of the arrest and prosecution to which the information relates unless it is being used against the person in a subsequent criminal proceeding.

Civil Penalties: A private entity that collects and compiles criminal history information must comply with the order for nondisclosure. A district court may issue a warning and after the first warning, the private entity is liable to the state for a civil penalty not to exceed $1000.00 for each subsequent violation. Attorney’s fees are recoverable. Changes to the law apply to deferred adjudication, regardless of whether the deferred adjudication is entered before, on, or after the effective date of this act. Additional penalties for private providers were added in the 2007 legislation, including requiring the Department of Public Safety to refuse to disseminate information to a provider who is not in compliance. GUNS Federal and state laws prohibit possession of firearms based on certain convictions. §46.04 Tex. Penal Code prohibits a convicted felon from possessing a firearm. So a person convicted of a felony in either state or federal court, whether placed on community supervision or not, violates both state and federal law, if they possess a firearm. Under state law, they may possess a firearm after the completion of the community supervision if there is an order setting aside the conviction and an order releasing them from all penalties and disability pursuant to Article 42A.701, Tex. Code of Criminal Procedure. It is less clear whether it is a violation under federal law. See Cuellar v State, 70 S.W.3d 815 (Tex. Crim. App. 2002) §46.04(b) Tex. Penal Code makes it a class A misdemeanor for a person convicted of a misdemeanor family violence assault to possess a firearm before the fifth anniversary of either (1) release from confinement or (2) discharge from probation. Under Texas law deferred adjudication will not trigger this prohibition. A conviction will affect a person’s ability to obtain a concealed handgun license. Tex. Gov Code §411.172, Tune v. DPS, 23 S.W.3d 358 (Tex. 2000) §46.04 Tex. Penal Code allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever is later. However, this does not control over federal law. Federal law, 18 U.S.C.922 (g), bans the possession of a firearm or ammuninition by anyone convicted of an offense where the maximum punishment is more than one year in prison. In addition, it is a crime to

acquire firearms while under indictment for such an offense. This causes problems for clients who accept deferred adjudication on a felony as it will not violate state law, but it is a violation of federal law, because while on deferred adjudication they are still under indictment for the offense. Under 18 U.S.C.922(g)(9) a defendant who is convicted of a misdemeanor crime of domestic violence is prohibited from ever possessing or receiving a firearm. Under 18 U.S.C. 921 (20) definitions, an offense where the maximum punishment is more than one year, does not include a state offense where the state classifies it as a misdemeanor with a maximum punishment of up to two years. Misdemeanor DWI cases will not result in the loss of the ability to possess or buy a handgun under federal law. Federal law also provides that what constitutes a conviction will be determined by the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction, unless such restoration expressly provides that the person may not possess or receive firearms. Deferred adjudication will not result in the loss of the ability to possess a firearm under federal law. A felony DWI sentence would result in the loss of the ability to possess a firearm under federal law as Article 42A.701 states that the judicial clemency section of our Code of Criminal Procedure does not apply to those convicted under §49.04-49.08, Penal Code. A DWI conviction will result in the loss of a concealed handgun permit and will not allow the person to reapply for 5 years. Deferred adjudication counts, as any probation or deferred for a class B or A misdemeanor requires a 5 year waiting period prior to applying for a CHL. The person can not apply for a CHL with a pending class B or A misdemeanor charge. If the person already has a CHL it will be suspended upon arrest for a Class B, or A misdemeanor or a felony. If they are subsequently convicted or receive deferred adjudication, the license is revoked. If the case is dismissed the license can be reinstated. The Texas State Law Library has some very good reference material on possession of a firearms and gun laws in general in Texas at: https://guides.sll.texas.gov/gunlaws/carry-of-firearms . In addition Texas DPS puts out a handbook at: https://www.dps.texas.gov/InternetForms/Forms/LTC-16.pdf. Two or more convictions for DWI misdemeanors within a 10 year period will make the person ineligible for a CHL. 2021 Legislation: House Bill 1927 enacted by the 87th Legislature,

effective September 1, 2021, created an open carry right to possess a firearm by a person 21 years of age or older and not otherwise prohibited by state and federal law from possessing a firearm. Texas Penal Code §46.02 is amended to prohibit carrying a hangun on or about his or her person if: the person is younger than 21 years of age; or has been convicted of an offense under Section 22.01(a)(1) [assault causing bodily injury], Section 22.05 [Deadly conduct], Section 22.07 [Terroristic Threat], or 42.01(a)(7) or (8) [Disorderly conduct discharging a firearm in a public place, or displaying a firearm or other deadly weapon] and the conviction was committed within the 5 year period preceding the date of theinstant offense and the person is not on the persons own premises or premises under the person’s control; or inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control. None of this would prohibit a person convicted of or who has received deferred adjudication for a misdemeanor DWI from carrying a handgun. Section (a-1) of §46.02 Penal Code sets out the crime of carrying a handgun in a motor vehicle or watercraft, if they are prohibited by law from possessing a firearm. So a person convicted or placed on deferred for a misdemeanor DWI can carry a handgun in their car or boat. But a person convicted of a final felony DWI, including probation, can not. Section (a-7) was added to §46.02 Penal Code to make it a crime for a person to intentionally, knowingly or recklessly carry on or about his or her person a handgun and the person is not on there own premises, or inside of or directly en route to a motor vehicle or watercraft and at the time, the person was prohibited from possessing a firearm under Section 46.04 (a) [felon], 46.04(b)[assault family violence before the 5th anniversary of the release from confinement or supervision], or 46.04(c)[a person subject to a protective order]. It specifically states that the felon who violates this section can be charged under this section or §46.04 or under both. Under this section, it is a felony of the second degree with a minimum term of imprisonment of five years, if the actor was prohibited from possessing a firearm under Section 46.04(a). Immigration & Travel Bans Canada does not allow anyone to come into Canada that has been

convicted of a DWI, even a 1st offense with no limitation on how old the conviction is. The person will be turned away at the border, or put on the next flight back out of Canada. There are ways to obtain a certificate of “criminal rehabilitation” status which requires documentation and money paid well in advance of any travel plans. Spain does not allow anyone to obtain a visa to stay more than 90 days even with a pending DWI-1st offense misdemeanor. The U.S. is a member of the Schengen agreement allowing most travelers to enter without a visa as long as the stay is less than 90 days. However, the passport must not expire for three months past the end of the trip. For aliens who are permanate residents within the U.S., one DWI conviction does not deport them or subject them to losing their permanate resident status. However two or more DWI convictions has been held to show a lack of good moral character and the person can be denied citizenship and perhaps even a renewal of their status. For those here illegally any arrest can result in deportation. DACA recipients are also required to not have a DWI conviction to maintain their legal status in the country. A DWI arrest during the time a permanate resident is applying for citizenship can result in a 5 year set off before they can apply again. Financial Aid for Higher Education A student convicted of a Class A misdemeanor, or felony loses their prepaid high education tuition scholarship under Texas Education Code §54.633. Many scholarships have Code of Conduct that allows the scholarship to be terminated upon criminal conviction. Universities can also have codes of conduct that can result in disciplinary action against a student, even for conduct that did not occur on the University property. The University Dean’s office can take action against a student who engages in conduct that violates any state, federal or local law, including the offenses of a minor driving under the influence of alcohol and driving while intoxicated. See Institutional Rules on Student Services and Activities, Chapter 11 Student Discipline and Conduct for the University of Texas. https://catalog.utexas.edu/generalinformation/appendices/appendix-c/student-discipline-and-conduct/

Voting Rights Senate Bill 1 that passed in the 2ND special session of the 87th

Legislature, added a number of new crimes related to voting and to registering to vote when a person is ineligible to do so. In addition it amended Article 42.0194 of the Code of Criminal Procedure requiring that in all felony trials, if the defendant is adjudged guilty of the offense, the court shall: (1) make an affirmative finding that the person has been found guilty of a felony and enter the affirmative finding in the judgment of the case; and (2) instruct the defendant regarding how the felony conviction will impact the defendant’s right to vote in this state. Texas Constitution Article 6, Section 1 lists the classes of person not allowed to vote, including those under 18 years of age, those who have been determined mentally incompetent by a court, and persons convicted of any felony, subject to such exceptions as the legislature may make. The Constitution prohibits felons from voting, but then grants the Legislature the ability to make exceptions. In the Texas Election Code, the Legislature designates in Section 11.002 who is a qualified voter. Section 4 states that the person has not been finally convicted of a felony or, if so convicted, has: (A) fully discharged the person’s sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or (B) been pardoned or otherwise released from the resulting disability to vote. The Texas Secretary of State issued a memo in clarification of what is a final felony conviction. A conviction on appeal is not considered a final felony conviction. Deferred adjudication is not considered a final felony conviction and the mere prosecution, indictment or other criminal procedures leading up to, but not yet resulting in a final conviction, are not final felony convictions. The memo goes on to state that once a felon has successfully completed his or her punishment, including any term of incarceration, parole, supervision, period of probation, or has been pardoned, that person is immediately eligible to register to vote. Conclusion DWI convictions and deferred adjudications have unique traps that every lawyer must try to avoid. The clients are best served by being prepared for what they are facing, even if it is not good. Failure to adequately advise someone can sometimes lead to writs of ineffective

assistance of counsel and claims of an involuntary plea. But most often it leads to unhappy clients and anguished attorneys. It is important to inquire of the client what licenses they might hold or if they are in school planning on obtaining a license in the future. The duty is upon the attorney to understand the array of consequences so as to properly advise clients what to expect and for the lawyer to determine whether to refer the client to another attorney that can help with specialized issues like licensing and immigration.

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Speaker:

Topic: Ethics Stephanie Stevens 2507 NW 36th St San Antonio, TX 78228-3918 (210) 431-5710 Phone (210) 431-5750 Fax sstevens@stmarytx.edu email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

ETHICS FOR THE CRIMINAL LAWYER 17th Annual Stuart Kinard Memorial Advanced DWI San Antonio, Texas 2021

Stephanie L. Stevens 2507 NW 36th Street San Antonio, Texas 78228 (210) 431-5710 sstevens@stmarytx.edu

Table of Contents

THE SCOPE OF THIS PAPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

COMPETENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Preamble: Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rule 1.01. Competent and Diligent Representation . . . . . . . . . . . . . . . . . . 1 Rule 1.02. Scope and Objectives of Representation . . . . . . . . . . . . . . . . . . 2 Rule 1.15. Declining or Terminating Representation . . . . . . . . . . . . . . . . 2

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rule 1.01, n. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rule 1.01, n. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rule 1.02, n. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.

Doing more than required is not forbidden . . . . . . . . . . . . . . . . . 4 a.

Constitutional duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 (1)

Sleeping in the courtroom . . . . . . . . . . . . . . . . . . . . . 5

(2)

The duty to investigate when not sleeping . . . . . . . . . 6

(3)

The duty to convey a plea bargain . . . . . . . . . . . . . . . 7

(4)

The right to testify. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The right to enter a plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ii

III.

HONESTY AND INTEGRITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Rule 3.01: Meritorious Claims and Contentions . . . . . . . . . . . . . . . . . . . . 7 Rule 3.03. Candor Toward the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rule 3.04. Fairness in Adjudicatory Proceedings . . . . . . . . . . . . . . . . . . . 8 Rule 3.05. Maintaining Impartiality of Tribunal . . . . . . . . . . . . . . . . . . . 10 Rule 3.06. Maintaining Integrity of Jury System . . . . . . . . . . . . . . . . . . . 11 Rule 4.02: Communication with One Represented by Counsel . . . . . . . . 11 Rule 4.04. Respect for Rights of Third Persons . . . . . . . . . . . . . . . . . . . . 12 Rule 5.04: Professional Independence of a Lawyer. . . . . . . . . . . . . . . . . 13 Rule 5.08. Prohibited Discriminatory Activities . . . . . . . . . . . . . . . . . . . . 13 Rule 8.03. Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . 14

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 3.01, n. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 3.03, n. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 3.03, n. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 3.03, n. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rule 3.03, n. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rule 3.03, n. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rule 4.02, n. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iii

Rule 4.02, n. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 C.

Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1.

IV.

Appointed counsel’s duty on appeal . . . . . . . . . . . . . . . . . . . . . . 17 a.

The Anders brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Anders in the Fourth Court. . . . . . . . . . . . . . . . . . . . . . . . . 18

Retained counsel’s duty on appeal . . . . . . . . . . . . . . . . . . . . . . . . 19

The limits of zealous advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rule 3.03(a)(5) and perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A permissible ex parte discussion under Rule 3.05(b) . . . . . . . . 20

Rule 5.08 and Batson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The duty to cite adverse authority . . . . . . . . . . . . . . . . . . . . . . . . 20

Reporting unauthorized jury contacts . . . . . . . . . . . . . . . . . . . . 20

Second opinions are authorized, even if without consent . . . . . 21

10.

Threatening criminal prosecution . . . . . . . . . . . . . . . . . . . . . . . . 21

11.

Do not split fees with your investigator . . . . . . . . . . . . . . . . . . . . 21

CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Rule 1.05. Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. R. EVID. 503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1.

TEX. CODE CRIM. PROC. ANN. 39.14(b) . . . . . . . . . . . . . . . . . . . . 26 Rule 4.02(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Rule 4.02(b), n. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Rule 1.06. Conflict of Interest: General Rule . . . . . . . . . . . . . . . . . . . . . 27 Rule 1.08. Conflict of Interest: Prohibited Transactions . . . . . . . . . . . . 28 Rule 3.08. Lawyer as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

B. VI.

Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

PUBLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Rule 3.07. Trial Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

VII.

FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Preamble: A Lawyer’s Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Rule 6.01. Accepting Appointments by a Tribunal. . . . . . . . . . . . . . . . . . 34 Rule 1.04. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Rule 6.01, n. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 v

Rule 6.01, n. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Rule 6.01, n. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Rule 6.01, n. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 VIII. SPECIAL OBLIGATIONS OF PROSECUTORS . . . . . . . . . . . . . . . . . . . . . . . . 38 A.

The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Rule 3.09. Special Responsibilities of a Prosecutor . . . . . . . . . . . . . . . . . 38

The Constitutional Obligation To Disclose Exculpatory Evidence . . . 39

The Texas Code Of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . 40

THE SCOPE OF THIS PAPER This paper presents selected rules of professional conduct that – in my admittedly subjective view – are particularly relevant to criminal lawyers. These rules can be found in their entirety in the Texas Government Code, Title II, Subtitle G, Appendix A, Article X, § 9. The paper also occasionally refers to case law which interprets the rules and related concepts, and to the commentary to the rules. II. COMPETENCE A.

The Rules Preamble: Terminology

"Competent" or "Competence" denotes possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client. Rule 1.01. Competent and Diligent Representation (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. (b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. (c) As used in this Rule, "neglect" signifies inattentiveness involving a conscious 1

disregard for the responsibilities owed to a client or clients. Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. (b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. *

Rule 1.15. Declining or Terminating Representation (a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if: (1) the representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law; (2) the lawyer's physical, mental or psychological condition materially impairs the lawyer's fitness to represent the client; or (3) the lawyer is discharged, with or without good cause. (b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services 2

that the lawyer reasonably believes may be criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. B.

Commentary Rule 1.01, n. 6 Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. A lawyer’s workload should be 3

controlled so that each matter can be handled with diligence and competence. As provided in paragraph (a), an incompetent lawyer is subject to discipline. See also STATE BAR RULES art. XII, § 8, Canon 7 (repealed)(“A lawyer should represent a client zealously within the bounds of the law”) Rule 1.01, n. 8 Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. Among things lawyers could now be subjected to disciplinary action for is in failing to keep up with technology trends that protect the “storage and transfer of client information, including sensitive and confidential private information and other protected data.” While lawyers will not be required themselves to personally be knowledgeable in all areas of technology, they will at least have to consult and hire folks who are knowledgeable to ensure the lawyer is in compliance with industry standards. Furthermore, if a more affordable technology solution allows for legal services to be delivered more efficiently, under certain circumstances, it may be a violation of the ethical duty of technology competence to bill more time than necessary to complete the project instead of purchasing the technology solution. Rule 1.02, n. 2 Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer is obligated to communicate any settlement offer to the client in a civil case; and a lawyer has a comparable responsibility with respect to a proposed plea bargain in a criminal case. C.

Case Law 1.

Doing more than required is not forbidden

Frankly, the case law and the rules of professional conduct do not require much of lawyers representing persons accused of crime. Real lawyers, though, will not be satisfied to perform merely at the level of minimal acceptability. a.

Constitutional duties

The Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution have been interpreted to require the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984)(emphasis supplied); Hernandez v. State, 988 S.W. 2d 770, 770 (Tex. Crim. App. 1999). There are scores and scores of Texas cases which interpret the constitutional duty render effective assistance of counsel and an even cursory coverage of these cases goes far beyond the scope of this paper. Four lines of cases, though, illustrate important points. (1)

Sleeping in the courtroom

Twice in recent years the Texas Court of Criminal Appeals has refused to grant relief to persons condemned to die merely because their lawyers slept through parts of their trials. See McFarland v. State, 928 S.W. 2d 482, 508 (Tex. Crim. App. 1996); Ex parte Burdine, 901 S.W. 2d 456 (Tex. Crim. App. 1995)(Maloney, J., dissenting). The Fifth Circuit, sitting en banc, had a different view. “The Supreme Court has long recognized that ‘a trial is unfair if the accused is denied counsel at a critical stage of his trial.’ United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). When a state court finds on the basis of credible evidence that defense counsel repeatedly slept as evidence was being introduced against a defendant, that defendant has been denied counsel at a critical stage of his trial. In such circumstances, the Supreme Court's Sixth Amendment jurisprudence compels the presumption that counsel's unconsciousness prejudiced the defendant.” Burdine v. Johnson, 262 F. 3d 336, 338 (5th Cir. 2001). The court refused to hold that proof of sleeping would invariably compel the presumption of prejudice. “Our holding, that the repeated unconsciousness of Burdine’s counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine’s capital murder trial warrants a presumption of prejudice, is limited to the egregious facts found by the state habeas court in this case.” Id. at 349. Recently, the court of criminal appeals examined McFarland on habeas corpus. Although applicant’s retained lawyer slept through critical stages of the trial, co-counsel “was an awake, active, and zealous advocate in the adversarial testing of the prosecution’s case.” Ex parte McFarland, 163 SW3d 743 (Tex. Crim. App. 2005). In 5

such a situation, the court will not presume prejudice under Cronic. Ex parte McFarland, 2005 WL 1162800 (Tex. Crim. App. 2005). (2)

The duty to investigate when not sleeping

Although Burdine and McFarland make it seem like the life of the criminal lawyer is pretty relaxed, some work is clearly mandated. In Stearnes v. Clinton, 780 S.W. 2d 216 (Tex. Crim. App. 1989), the trial court removed previously appointed defense counsel because they interviewed a witness for the prosecution, in violation of a rule of the Lubbock County District Attorney’s Office. The court of criminal appeals granted the defendant’s petition for mandamus, holding that the trial court had had no authority to remove counsel under the circumstances. Id. at 226. In the process, the court made it clear that the district attorney’s rule requiring permission to interview “its” witnesses was unauthorized. Indeed, the court recognized that defense counsel have a duty to make an independent investigation of the facts, which includes the duty to “seek out and interview potential witnesses.” Id. at 224. Wiggins v. Smith, 539 U.S. 510 (2003), is important because it highlights “counsel’s duty to investigate.” Id. at 522. There the petitioner complained that his trial counsel were ineffective because they failed to properly investigate and present mitigating evidence of his unfortunate life history at the punishment phase of his capital trial. Id. at 514. The state court had denied habeas relief after finding that trial counsel had made a deliberate, tactical decision to forego a mitigation case in favor of convincing the jury that appellant was not directly responsible for the murder. Id. at 517-518. The Fourth Circuit Court of Appeals agreed that counsel had made a reasonable strategic decision to focus on petitioner’s responsibility. Id. at 519. The Supreme Court reversed, finding that the state court’s “application of Strickland’s governing legal principles was objectively unreasonable.” Id. at 528. The Court found counsel constitutionally deficient for failing to investigate petitioner’s life history beyond consideration of a presentence investigation report and a report prepared by a municipal social services office. The respondent claimed that trial counsel had exercised reasonable professional judgment in choosing not to put on a mitigation case, and that for this reason, they had not performed deficiently. But the Supreme Court made it clear that its concern was not whether counsel should have presented a mitigation case. “Rather, we focus on whether the investigation supporting counsel’s decision not to introduce evidence of Wiggins’s background was itself reasonable. Id. at 523(emphasis in original); See also Soffar v. Dretke, 368 F. 3d 441, 478 (5th Cir. 2004)(counsel ineffective for not conducting an adequate pretrial investigation); Lewis v. Dretke, 355 F. 3d 364, 369 (5th Cir. 2003)(failure to investigate mitigating childhood abuse evidence); Anderson v. Johnson, 338 F. 3d 382, 394 (5th Cir. 2003)(failure to investigate and interview eyewitnesses); Lampkin v. State, 470 S.W.3d 6

876, (Tex. App. – Texarkana 2015, pet. ref’d.)(failure to investigate mental health history to uncover mitigating evidence in felony DWI case was ineffective). (3)

The duty to convey a plea bargain

Trial counsel was ineffective in not advising the defendant that the state had offered a plea bargain of 13 years, where defendant went to trial, was convicted, and was given a life sentence, and where defendant later testified that he would have accepted the plea bargain offered had he known about it. Ex parte Wilson, 724 S.W. 2d 72, 74 (Tex. Crim. App. 1987); but see Ex parte Argent 393 S.W.3d 781 (Tex. Crim. App. 2013). (4)

The right to testify

“[D]efense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant.” Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005) cert denied 546 U.S. 1181 (2006).

The right to enter a plea

“Thus, when a client makes it plain that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abivde by that objective and may not overrride it by conceding guilt.” McCoy v. Louisiana, 138 S.Ct. 1500, 1504 (2018).

III.

HONESTY AND INTEGRITY A.

The Rules Rule 3.01: Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.

Rule 3.03. Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the 8

witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; (3) a reasonable fee for the professional services of an expert witness. (c) except as stated in paragraph (d), in representing a client before a tribunal: (1) habitually violate an established rule of procedure or of evidence; (2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; (3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein; (4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or (5) engage in conduct intended to disrupt the proceedings. (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's 9

willingness to accept any sanctions arising from such disobedience. (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Rule 3.05. Maintaining Impartiality of Tribunal A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure; (b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than: (1) in the course of official proceedings in the cause; (2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer; (3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. (c) For purposes of this rule: (1) "Matter" has the meanings ascribed by it in Rule 1.10(f) of these Rules; (2) A matter is "pending" before a particular tribunal either when that entity has been selected to determine the matter or 10

when it is reasonably foreseeable that that entity will be so selected. Rule 3.06. Maintaining Integrity of Jury System (a) A lawyer shall not: (1) conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a venireman or juror; or (2) seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure. (b) Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings. (c) During the trial of a case, a lawyer not connected therewith shall not communicate with or cause another to communicate with a juror or alternate juror concerning the matter. (d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. (e) All restrictions imposed by this Rule upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. (f) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge. (g) As used in this Rule, the terms "matter" and "pending" have the meanings specified in Rule 3.05(c). Rule 4.02: Communication with One Represented by Counsel

(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (c) For the purpose of this rule, "organization or entity of government" includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or omission. (d) When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer. Rule 4.04. Respect for Rights of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer shall not present, participate in presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or (2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.

Rule 5.04: Professional Independence of a Lawyer (a) A lawyer or law firm shall not share or promise to share legal fees with a non-lawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate, or a lawful court order, may provide for the payment of money, over a reasonable period of time, to the lawyer's estate to or for the benefit of the lawyer's heirs or personal representatives, beneficiaries, or former spouse, after the lawyer's death or as otherwise provided by law or court order. (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and (3) a lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. (b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. Rule 5.08. Prohibited Discriminatory Activities (a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as 13

provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity. (b) Paragraph (a) does not apply to a lawyer's decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as "confidential information" under these Rules. See Rule 1.05(a), (b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy: (i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and (ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure. Rule 8.03. Reporting Professional Misconduct (a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. (b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b). (d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information: (1) by Rule 1.05 or

(2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program. (e) A lawyer who has been convicted or placed on probation, with or without an adjudication of guilty, by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property–including a conviction or sentence of probation for attempt, conspiracy, or solicitation–must notify the chief disciplinary within 30 days of the date of the order or judgment. The notice must include a copy of the order or judgment. (f) A lawyer who has been disciplined by the attorney-regulatory agency of another jurisdiction must notify the chief disciplinary counsel within 30 days of the date of the order or judgment. The notice must include a copy of the order or judgment. B.

Commentary Rule 3.01, n. 3

A filing or contention is frivolous if it contains knowingly false statements of fact. It is not frivolous, however, merely because the facts have not been first substantiated fully or because the lawyer expects to develop vital evidence only by discovery. Neither is it frivolous even though the lawyer believes that the client's position ultimately may not prevail. In addition, this Rule does not prohibit the use of a general denial or other pleading to the extent authorized by applicable rules of practice or procedure. Likewise, a lawyer for a defendant in any criminal proceeding or for the respondent in a proceeding that could result in commitment may so defend the proceeding as to require that every element of the case be established. Rule 3.03, n. 3 Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Rule 3.03, n. 9 15

Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. Rule 3.03, n. 10 The proper resolution of the lawyer's dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer's resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. Rule 3.03, n. 11 Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. Rule 3.03, n. 12 The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client's perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not 16

have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. Rule 4.02, n. 2 Paragraph (a) does not, however, prohibit communication between a lawyer's client and persons, organizations, or entities of government represented by counsel, as long as the lawyer does not cause or encourage the communication without the consent of the lawyer for the other party. Consent may be implied as well as express, as, for example, where the communication occurs in the form of a private placement memorandum or similar document that obviously is intended for multiple recipients and that normally is furnished directly to persons, even if known to be represented by counsel. Similarly, that paragraph does not impose a duty on a lawyer to affirmatively discourage communication between the lawyer's client and other represented persons, organizations or entities of government. Furthermore, it does not prohibit client communications concerning matters outside the subject of the representation with any such person, organization, or entity of government. Finally, it does not prohibit a lawyer from furnishing a "second opinion" in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so. But see Rule 7.02. Rule 4.02, n. 3 Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large. C.

Case Law 1.

Appointed counsel’s duty on appeal a.

The Anders brief

What is appointed counsel’s duty when he determines that the defendant’s first appeal is frivolous? In Anders v. California, trial counsel concluded that his client’s appeal was frivolous and he wrote a letter to the court in which he refused to file a brief and advised that the defendant would file his own brief. The Supreme Court held that this procedure was inadequate. Counsel must be an active advocate, not merely 17

an amicus curiae. 386 U.S. 738, 744 (1967). Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Id. b.

Anders in the Fourth Court

The Fourth Court of Appeals has established the following course of action where a court appointed attorney determines the appeal is frivolous under Anders: (1) the attorney shall file a motion requesting permission to withdraw; (2) accompanying that motion shall be an Anders brief and an exhibit showing that counsel sent appellant a copy of the motion and brief and informed him of his right to review the record and file a pro se brief; (3) counsel must “explain ‘the details of the procedure to be used in the particular court of conviction to gain access to the record.’” (4) if the court of appeals determines that Anders has been complied with, it will grant the motion to withdraw; (5) appellant will then have 30 days either to file a pro se brief or a motion for extension of time; 18

(6) After the pro se brief is filed, or the time lapses for its filing, the court of appeals will determine if there are arguable grounds for the appeal; (7) If there are arguable points, the appeal will be abated and new counsel will be appointed to assist the appellant. See Bruns v. State, 924S.W.2d 176, 177 n. 1 (Tex.App.– San Antonio 1996, no pet.); see also Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). 2.

Retained counsel’s duty on appeal

Anders does not apply to retained counsel. Like appointed counsel, retained counsel has a duty “to refuse to prosecute a frivolous appeal.” Nguyen v. State, 11 S.W. 3d 376, 378 (Tex. App.–Houston [14th Dist.] 2000, no pet.). Retained counsel is not required to file an Anders brief, and, if he does, it will be stricken. Instead, he must file a motion to withdraw that will be evaluated according to the Rules of Appellate Procedure. This motion must be accompanied by a showing that it was served on appellant, and that appellant was advised of impending time deadlines. The appellate court must be provided a current address for the appellant. Id. at 379. 3.

The limits of zealous advocacy

“Counsel's argument goes beyond the limits of zealous advocacy. He has misrepresented the facts, distorted the record, and falsely accused the trial court of highly unprofessional and unethical conduct. In our opinion, counsel's statements exceed the very broad scope of permissible argument set forth in rule 3.01 of the Texas Disciplinary Rules of Professional Conduct.” Bond v. State, 176 S.W. 3d 397 n.3 (Tex. App.–Houston [1st Dist.] 2004, no pet. h.). 4.

Rule 3.03(a)(5) and perjury

What do you do when you know your client intends to commit perjury? First, do not be too quick to cry “perjury.” How do you know the intended testimony is perjury? But if, somehow, you do, consider (at the risk of really confusing yourself) two cases -- Nix v. Whiteside, 475 U.S. 157 (1986) and Maddox v. State, 613 S.W. 2d. 275 (Tex. Crim. App. 1981). In Nix, the Court rejected respondent’s complaint that he had been denied the effective assistance of counsel when his trial lawyer dissuaded him from committing perjury. “[T]he right to counsel includes no right to have a lawyer who will cooperate 19

with planned perjury.” Nix v. Whiteside, 475 U.S. at 173; but see McCoy v. Louisiana, 138 S.Ct. 1500 (2018). In Maddox, trial counsel apparently concluded, before calling the defendant, that he was going to perjure himself. Failing to persuade him not to testify, counsel moved to withdraw, and their motion was denied. Counsel then requested that the defendant represent himself while testifying, and this request was granted by the court. Defendant then testified in a narrative form, without participation of counsel. Id. at 277. Calling this “one of the hardest questions a criminal defense lawyer faces,” the court of criminal appeals cited a number of secondary sources. Id. at 279-280. The court first recognized that “[e]xperienced and conscientious people can come to different conclusions about how to deal with the conflict.” Id. at 280. Then, without answering the difficult question, the court held that the defendant was not denied the effective assistance of counsel, either by counsel’s motion to withdraw, or by their permitting him to testify in narrative form. Id. at 284. Dissenting judges wrote to “make it clear that no panacea for the difficult problem of the perjurious client has been presented here.” Id. at 287. 5.

A permissible ex parte discussion under Rule 3.05(b)

In Ake v. Oklahoma, 470 U.S. 68 (1986), the Court held that an indigent defendant may make his threshold showing of the need for a court-appointed expert ex parte. Proceeding ex parte may be a very valuable right, necessary to avoid exposing your defensive theories prematurely. See Williams v. State, 958 S.W. 2d 186, 193-94 (Tex. Crim. App. 1997). The right to an ex parte hearing is waived absent a request to do so at trial. Busby v. State, 990 S.W. 2d 263, 270 (Tex. Crim. App. 1999). 6.

Rule 5.08 and Batson

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court recognized that purposeful racial discrimination in jury selection violates a defendant's right to equal protection of the law. Id. at 86. This practice is also prohibited by article 35.261 of the Texas Code of Criminal Procedure. 7.

The duty to cite adverse authority

Ibarra v. State, 782 S.W. 2d 234 (Tex. App.–Houston [14th Dist.] 1989, no pet.)(chastising counsel for not attempting to distinguish, or even mentioning adverse authority contained in one of his own earlier, published, cases) 8.

Reporting unauthorized jury contacts 20

In Mize v. State, 754 S.W. 2d 732, 740 (Tex. App.–Corpus Christi 1988, pet. ref’d), the district attorney learned that someone had made threatening calls to a juror during the trial, but the prosecutor did not report it. The prosecutor’s failure to alert the court to jury tampering violated the rules of professional responsibility, but it was not reversible error. 9.

Second opinions are authorized, even if without consent

“Rule 4.02(d) permits an otherwise prohibited communication if it is initiated by the client.” In re Medrano, 956 F. 2d 101, 103 (5th Cir. 1992). 10.

Threatening criminal prosecution

A lawyer was properly disciplined for the following threats: Why don't you tell me what you are willing to pay me. I don't want to go to the District Attorney's office. I have sworn affidavits of the people you've been questioning and talking to. There is an antistalking law in Texas. I don't know how ugly you want to get with me, but you are going about this the wrong way, Mr. Del Castillo. If you want me to press criminal charges against you, I can do that right now.... I wish you would just sit down with me, agree to pay me something, and you can go your way and I'll go my way. But if you want to make trouble for me, I can assure you that you're violating the law, and you can be put in jail for what you are doing. I have sworn affidavits against you. *** Do you want me to file criminal charges against you? *** Fine. Then I suggest you get yourself a criminal defense lawyer if you want to stalk me. Weiss v. Commission for Lawyer Discipline, 981 S.W.2d 8, 18 (Tex. App.–San Antonio 1998, rev. den.). 11.

Do not split fees with your investigator

Sharing legal fees with an investigator/paralegal based on his involvement in a particular case is improper. State Bar of Texas v. Faubion, 821 S.W. 2d 203, 208 (Tex. App.–Houston [14th Dist.] 1991, writ denied).

IV.

CONFIDENTIALITY A.

The Rules Rule 1.05. Confidentiality of Information

(a) "Confidential information" includes both "privileged information" and "unprivileged client information." "Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm. (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: 22

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; 23

(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). B.

TEX. R. EVID. 503

(a) Definitions. As used in this rule: (1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer. (2) A "client’s representative" is: (A) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client, or (B) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client. (3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

(4) A "lawyer’s representative" is: (A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services. (5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. (b) Rules of Privilege. (1) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or the client’s representative and the client's lawyer or the lawyer’s representative; (B) between the client’s lawyer and the lawyer's representative; (C) by the client or the client’s representative, or the client's lawyer or the lawyer’s representative, to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action; (D) between the client’s representatives or between the client and the client’s representative; or (E) among lawyers and their representatives representing the same client. (2) Special Rule in a Criminal Case. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing 25

any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. (c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. (d) Exceptions. There is no privilege under this rule: (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions; (3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer; (4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or (5) Joint clients. If the communication: (A) is offered in an action between clients who retained or consulted a lawyer in common; (B) was made by any of the clients to the lawyer; and ( C) is relevant to a matter of common interest between the clients. C.

EXPERTS 1.

TEX. CODE CRIM. PROC. ANN. 39.14(b)

“On a party’s request made not later than the 30th day before the date that jury 26

selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On a motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party. Rule 4.02(b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Rule 4.02(b), n. 3 “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” V.

CONFLICTS A.

The Rules Rule 1.06. Conflict of Interest: General Rule *

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person's interests are 27

materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests. (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules. (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct. Rule 1.08. Conflict of Interest: Prohibited Transactions * * * * * (c) Prior to the conclusion of all aspects of the matter giving rise to the lawyer's employment, a lawyer shall not make or negotiate an agreement with a client, prospective client, or former client giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. * * * * * (e) A lawyer shall not accept compensation for representing a client from one other than 28

the client unless: (1) the client consents; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05. (f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement to guilty or nolo contendere pleas, unless each client has consented after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the nature and extent of the participation of each person in the settlement. * * * * * (i) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member of or associated with that lawyer's firm may engage in that conduct. *

Rule 3.08. Lawyer as Witness (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure. (c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.

Case Law

1. The Sixth Amendment guarantees representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981); See also Ex parte McCormick, 645 S.W. 2d 801, 806 (Tex. Crim. App. 1983)(where same lawyer represented two defendants charged with capital murder, the convictions were reversed because that lawyer could not “simultaneously argue with any semblance of effectiveness that each defendant is most deserving of the lesser penalty”); but see Ex parte Prejean, 625 S.W. 2d 731, 733 (Tex. Crim. App. 1981)(trial court erred in disqualifying counsel because of conflict of interest in capital case, because defendant may waive conflict). 2. In Ramon v. State, 159 S.W. 3d 927 (Tex. Crim. App. 2004), the prosecutor called herself to testify on a collateral matter before the jury. The court of criminal appeals “agree[d] that the prosecutor’s behavior was improper.” Id. at 931. The court did not reverse the conviction, though. “Given the strength of the evidence against appellant, the court's instruction to the jury to disregard the prosecutor's testimony, and the tangential nature of that testimony, we do not find an abuse of discretion in the trial court's failure to declare a mistrial.” Id. at 932. 3. Interestingly, the same prosecutor in Ramon called the defense lawyer as a witness in Flores v. State, 155 S.W. 3d 144 (Tex. Crim. App. 2004). This time, the court reversed:

The adversary system of justice is predicated upon the proposition that justice will most surely prevail when adversaries are pitted one against the other. Under that system, it is the sworn duty of defense counsel to use all honorable and legal means to defend a client charged with a crime. It is inconceivable that a lawyer, seeking to convince a jury of the innocence of his client, or that the accused has not been proven guilty, can perform that high duty when he assumes the dual role of defense counsel and witness for the prosecution. Such a procedure sullies the entire legal profession. More particularly, it is manifestly unfair to the honorable trial counsel in this case, who was forced, against his will, to testify against the very client he was sworn to defend; his credibility as a lawyer immediately becomes suspect in the eyes of the jury. Above all, it was unfair to the defendant, who was convicted with the help of his own lawyer's testimony. Thus, in accordance with our holding today, the State may indeed call defense counsel to the stand, and the court may require the lawyer testify, but the State will do so at its own peril. Id. at 151. 4. In Powers v. State, 165 S.W. 3d 357 (Tex. Crim. App. 2005), Williams was a police officer who investigated a DWI case in Tarrant County. By the time the case got to trial, Williams had become a Tarrant County prosecutor. He took no part in the case as a prosecutor, but was permitted to testify as a fact witness at trial. The court of appeals held that the trial court erred under Rule 3.08 when it permitted Williams to testify. The court of criminal appeals disagreed. Rule 3.08 does not apply because Williams did not serve as an “advocate” in the case. Because Williams did not serve as an advocate and a witness, he did not serve dual roles, and the trial court did not abuse its discretion when it admitted his testimony. Id. . 5. The trial court did not err when it disqualified appellant’s attorney under Rule 3.08. According to the state, the lawyer was a potential witness. When determining whether to disqualify a lawyer as a potential witness, the courts use Rule 3.08 as a guideline. “Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the 31

dual role of advocate-witness.” Gonzalez v. State, 117 S.W. 3d 831 (Tex. Crim. App. 2003). VI.

PUBLICITY A.

The Rules Rule 3.07. Trial Publicity

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement. (b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement; (3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial. 32

(c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in that paragraph when the lawyer merely states: (1) the general nature of the claim or defense; (2) the information contained in a public record; (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved; (4) except when prohibited by law, the identity of the persons involved in the matter; (5) the scheduling or result of any step in litigation; (6) a request for assistance in obtaining evidence, and information necessary thereto; (7) a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (8) if a criminal case: (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

VII.

FEES A.

The Rules 33

Preamble: A Lawyer’s Responsibilities *

6. “A lawyer should render public interest legal service. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally. A lawyer may discharge this basic responsibility by providing public interest legal services without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation, the administration of justice, and by financial support for organizations that provide legal services to persons of limited means.” Rule 6.01. Accepting Appointments by a Tribunal A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of law or rules of professional conduct; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

(b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement describing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for 35

representing a defendant in a criminal case. (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is: (i) in proportion to the professional services performed by each lawyer; or (ii) made between lawyers who assume joint responsibility for the representation; and (2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including: (i) the identity of all lawyers or law firms who will participate in the feesharing agreement, and (ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and (iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and (3) the aggregate fee does not violate paragraph (a). (g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the person to other counsel for such representation, and that results in such an association with or referral to a different law firm or a lawyer in such a different firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way, except for: 36

(1) the reasonable value of legal services provided to that person; and (2) the reasonable and necessary expenses actually incurred on behalf of that person. (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments or recodifications thereof. B.

Commentary Rule 6.01, n. 1

A lawyer may be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services. For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.01, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. Compare Rules 1.06(b), 1.15(a)(2), 1.15(b)(4). A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust. Compare Rule 1.15(b)(6). However, a lawyer should not seek to decline an appointment because of such factors as a distaste for the subject matter or the proceeding, the identity or position of a person involved in the case, the lawyer's belief that a defendant in a criminal proceeding is guilty, or the lawyer's belief regarding the merits of a civil case. Rule 6.01, n. 2 An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.

Rule 6.01, n. 4 A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. Frequently, however, the needs of such a client for a lawyer's services are particularly pressing and, in some cases, the client may have a right to legal representation. At the same time, either financial considerations or the same qualities of the client or the client's cause that make a lawyer reluctant to accept employment may severely limit the client's ability to obtain counsel. As a consequence, the lawyer's freedom to reject clients is morally qualified. Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, a lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. Rule 6.01, n. 5 An individual lawyer may fulfill the ethical responsibility to provide public interest legal service by accepting a fair share of unpopular matters or indigent or unpopular clients. History is replete with instances of distinguished and sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. Likewise, a lawyer should not reject tendered employment because of the personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials, or influential members of the community. VIII.

SPECIAL OBLIGATIONS OF PROSECUTORS A.

The Rules Rule 3.09. Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. B.

The Constitutional Obligation To Disclose Exculpatory Evidence

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that the Due Process Clause requires the state to disclose to the defense exculpatory evidence in its possession, irrespective of good or bad faith. See also United States v. Bagley, 473 U.S. 667, 676 (1985)(impeachment evidence also falls within the Brady rule). In making the decision to disclose or not, Rule 3.09 (d)’s “clarity . . . is a safeguard for prosecutors and citizens alike: if there is any way a piece of information could be viewed as exculpatory, impeaching, or mitigating – err on the side of disclosure.” Schultz v. Commission For Lawyer Discipline Of The State Bar of Texas, 2015 WL 9855916 *1011 (State Board of Disciplinary Appeals December 17, 2015).

The Texas Code Of Criminal Procedure

It is the primary duty of the prosecutor, “not to convict, but to see that justice is done. . . .” TEX. CODE CRIM. PROC. ANN. art. 2.01.

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: DWI Voir Dire Speaker:

Troy McKinney

440 Louisiana St Ste 800 Houston, TX 77002-1637 (713) 951-9994 Phone (713) 224-6008 Fax wtmhousto2@aol.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

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State of Texas v. __________ County Criminal Court at Law No. ___ Honorable __________, Presiding Troy McKinney Schneider & McKinney

Why We Are Here

Why We Are Here • Not in defiance of DWI Laws. • We support DWI Laws

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Why We Are Here • We say – Gonzalo was not driving while intoxicated.

Why We Are Here • We say – Gonzalo was not driving while intoxicated. • They say – they think Gonzalo may have been driving while intoxicated.

Jury Selection “Myths”

• #1: Jurors are “selected”

• #2: If you are quiet, you do not end up serving

• #3: You are required to ignore or set aside your personal feelings or beliefs. • #4: It is “wrong” to admit you have a bias or prejudice (a leaning) of some sort

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What We Want – Good Jurors

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases.

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases. • We want people who want to be as good a juror as I want to be a lawyer.

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• Jurors who will follow the law – not all can, will, or want to – and that is okay. Just tell us your honest opinions and beliefs. Everyone will respect you for your honesty.

What We Want – Good Jurors • Not all people are good jurors for all kinds of cases. • We want people who want to be as good a juror as I want to be a lawyer. • Thoughtful, attentive, inquisitive, questioning, and openminded. • Jurors who will follow the law – not all can, will, or want to – and that is okay. Just tell us your honest opinions and beliefs. Everyone will respect you for your honesty.

• Most importantly: HONEST. Your oath requires you to tell us you disagree with us if you do. Just be honest: I promise we will respect your honesty.

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Definition of DWI • • • • • •

On or about a date, in Harris County, operate, a motor vehicle, in a public place, while intoxicated.

Definition of DWI • DWI – on a date, in Harris county, operate, a motor vehicle, in a public place, while intoxicated. • "Intoxicated" means: • (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body; or • (B) having an alcohol concentration of 0.08 or more

The Law • “Not Guilty” if – Not hGonzalong normal mental or physical faculties not proven Beyond a Reasonable Doubt • “Not Guilty” if – Blood or breath alcohol level of .08 or more at the time of driving not proven Beyond a Reasonable Doubt • “Not Guilty” if – By reason of the Introduction of Alcohol not proven beyond a reasonable doubt • “Not Guilty” if – ANY of the elements alleged not proven Beyond a Reasonable Doubt 10/21/2021

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Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence.

Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence. • Level of Proof – beyond and to the exclusion of all reasonable doubt.

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Three Rules of Trial

To Prevent Wrongful Convictions To Protect the Innocent • Presumption of Innocence. • Level of Proof – beyond and to the exclusion of all reasonable doubt. • Burden of Proof – responsibility for the evidence is always and only on the State.

PRESUMPTION OF INNOCENCE • All persons are presumed innocent and no person may be convicted of any offense unless each element of the offense is proved beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all.

The presumption of

innocence alone is sufficient to acquit the defendant.

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Presumption of Innocence • What is a presumption?

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Presumption of Innocence • What is a presumption? • Assumption, Favoritism, Leaning, Prejudgment, Strongly Held Belief • Must be True – a State of Mind

Bias,

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume ______?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm.

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Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm. • Dark clouds and wet ground…presume _____?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm. • Dark clouds and wet ground…presume it rained.

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm. • Dark clouds and wet ground…presume it rained. • Person in handcuffs on TV….presume ______?

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Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm. • Dark clouds and wet ground…presume it rained. • Person in handcuffs on TV….presume innocence?

Presumption of Innocence

Examples of Common Presumptions • Lightening and Thunder….presume a storm. • Dark clouds and wet ground…presume it rained. • Person in handcuffs on TV….presume innocence? • Person on the side of the road pulled over by police…presume ________?

Presumption of Innocence

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Presumption of Innocence • What is a presumption? • Assumption, Favoritism, Leaning, Bias. • Must be True – a State of Mind.

• If there was a presumption of guilt, you would have to be biased in favor of ________?

Presumption of Innocence • What is a presumption? • Assumption, Favoritism, Leaning, Bias. • Must be True – a State of Mind.

• If there was a presumption of guilt, you would have to be biased in favor of the State?

Presumption of Innocence • • • •

What is a presumption? Assumption, Favoritism, Leaning, Bias. Must be True – a State of Mind. If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of ________?

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Presumption of Innocence • • • •

What is a presumption? Assumption, Favoritism, Leaning, Bias. Must be True – a State of Mind. If there was a presumption of guilt, you would have to be biased in favor of the State?

• Because there is a presumption of innocence, you must be biased in favor of Gonzalo?

Presumption of Innocence What is a presumption? Assumption, Favoritism, Leaning, Bias. Must be True – a State of Mind. If there was a presumption of guilt, you would to be biased in favor of the State? • Because there is a presumption of innocence, you must be biased in favor of Gonzalo? • • • •

• To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo.

Presumption of Innocence What is a presumption? Assumption, Favoritism, Leaning, Bias. Must be True – a State of Mind. If there was a presumption of guilt, you would have to be biased in favor of the State? • Because there is a presumption of innocence, you must be biased in favor of Gonzalo? • To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo. • • • •

• Who will not or cannot be biased in favor of (have a strongly held belief in favor of) Gonzalo’s innocence?

10/21/2021

Presumption of Innocence

What is a presumption? Assumption, Favoritism, Leaning, Bias. Must be True – a State of Mind. If there was a presumption of guilt, you would have to be biased in favor of the State? • Because there is a presumption of innocence, you must be biased in favor of Gonzalo? • To be fair and follow the law (rules of trial) in this case, the law requires that you must be biased in favor of Gonzalo. • Who cannot be biased in favor of (have a strongly held belief in favor of) Gonzalo’s innocence? • • • •

• Who will be biased in favor of Gonzalo’s innocence?

Presumption of Innocence Real Beliefs v. Theory

Presumption of Innocence Real Beliefs v. Theory • Not everyone can, will, or wants to really presume someone innocent – because they do not honestly (or really) believe it.

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Presumption of Innocence Real Beliefs v. Theory • Not everyone can, will, or wants to really presume someone innocent – because they do not honestly (or really) believe it. • That is okay. It is normal and human.

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires…. • Who believes or thinks Gonzalo must have done something illegal or he would not be here?

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Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires…. • Who believes or thinks Gonzalo must have done something illegal or he would not be here? • Has Gonzalo already lost some of the presumption of innocence? Some leaning against him or for the State?

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires….

• Who honestly still has a doubt about Gonzalo’s innocence?

Presumption of Innocence Real Beliefs v. Theory

Despite knowing what the law requires…. • Who still has a doubt about Gonzalo’s innocence? • Will that doubt about his innocence cause you to not fully and really presume him completely innocent?

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • What does it mean? • You get to decide – with some guidance and context, but no definition. It is what you decide it is. • You must be 100 percent free of reasonable doubt.

10/21/2021

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • If the State only proves that there was probable cause (maybe), the verdict must be ________?

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

• If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be ___________?

10/21/2021

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt •

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY.

• If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY.

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • •

• If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be ________?

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • •

• If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY.

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• •

•

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

• If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be ______?

• •

•

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • •

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

If the State only proves that there was probable cause (maybe), the verdict must be NOT GUILTY. If the State only proves DWI to a preponderance of the evidence (greater weight of the evidence – more than 50 percent), the verdict must be NOT GUILTY. If the State only proves DWI by clear and convincing evidence (where you have a firm belief that the allegations are true), the verdict must be NOT GUILTY. If after hearing the evidence, you are just not sure if the State has proved guilt beyond and to the exclusion of all reasonable doubt (you just do not know one way or the other), the verdict must be NOT GUILTY.

• If after hearing the evidence you believe beyond a reasonable doubt that Gonzalo did not have the normal use of his mental or physical faculties, but you are not sure if it was because of alcohol or for some other reason, the verdict must be _______?

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• • • •

Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt

• If after hearing the evidence you believe beyond a reasonable doubt that Gonzalo did not have the normal use of her mental or physical faculties, but you are not sure if it was because of alcohol or for some other reason, the verdict must be NOT GUILTY.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From? • From the evidence itself.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From? • From the Evidence Itself. • From the Lack of Evidence.

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Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From? • From the Evidence Itself. • From the Lack of Evidence. • From Unanswered Questions that you have.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • •

Where Can Reasonable Doubt Come From? From the Evidence Itself. From the Lack of Evidence. From Unanswered Questions that you have. Inconsistencies in the Evidence.

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • • •

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Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Where Can Reasonable Doubt Come From? From the Evidence Itself. From the Lack of Evidence. From Unanswered Questions that you have. Inconsistencies in the Evidence. Credibility of the Evidence – do not believe some or all. • Weight of the Evidence – just not enough. • • • • •

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

Second Rule of Trial

Proof Beyond and to the Exclusion of All Reasonable Doubt

• • • • • • • •

Where Can Reasonable Doubt Come From? From the Evidence Itself. From the Lack of Evidence. From Unanswered Questions that you have. Inconsistencies in the Evidence. Credibility of the Evidence – do not believe some or all. Weight of the Evidence – just not enough. Not proven to you. Specific Reasonable Doubt – one or several.

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Second Rule of Trial Proof Beyond and to the Exclusion of All Reasonable Doubt • You do not need to have the same reasonable doubt as anyone else. • Each person may have their own even if it is not shared by anyone else. • It is personal to you.

Third Rule of Trial Burden of Proof • The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

Third Rule of Trial Burden of Proof • Only and always on the State.

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Third Rule of Trial Burden of Proof • Only and always on the State. • We (the defense) never have to prove or disprove anything.

Third Rule of Trial Burden of Proof • Only and always on the State. • We (the defense) never have to prove or disprove anything. • It means that the State has the Responsibility for the Evidence. • If you want more evidence, who do you hold the lack of evidence against?

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Third Rule of Trial Burden of Proof • Who is on trial here?

Third Rule of Trial Burden of Proof • Who is on trial here? • Gonzalo ______________ ???????

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Third Rule of Trial Burden of Proof • Who is on trial here? • Gonzalo ______________ ??????? • NO – The State, its case, and its evidence is on trial because it has the Burden of Proof and Gonzalo has the presumption of innocence.

Third Rule of Trial Burden of Proof • Some say that if the defense produces no evidence, the Defendant must be guilty.

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Third Rule of Trial Burden of Proof • Some say that if the defense produces no evidence, the Defendant must be guilty. • Does anyone feel that way?

Third Rule of Trial Burden of Proof • Some say that they must hear something from the defense before they could ever find the Defendant not guilty and that if they hear nothing from the defense they cannot find the Defendant not guilty.

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Third Rule of Trial Burden of Proof • If the State rests, and you have a reasonable doubt or are not sure if it has been proven beyond and to the exclusion of all reasonable doubt, and the defense produces no evidence, the verdict has to be ______?

DEFENDANT’S RIGHT NOT TO TESTIFY • Our law provides that a defendant may testify on his own behalf if he elects to do so. This however, is a right accorded a defendant, and if in the event he elects not to testify, that fact cannot be considered by you or used against him in any way.

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Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify. • Does anyone feel that way?

• What are innocent valid reasons for someone not to testify?

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Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify. • Does anyone feel that way?

• What are innocent valid reasons for someone not to testify? • Lawyer says not necessary.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify. • Does anyone feel that way?

• What are innocent valid reasons for someone not to testify? • Lawyer says not necessary • State has not proven guilt – no need.

Third Rule of Trial Burden of Proof • Some say that if the Defendant does not testify, he must be guilty because anyone who is innocent would testify. • Does anyone feel that way?

• What are innocent valid reasons for someone not to testify? • Lawyer says not necessary • State has not proven guilt – no need. • Fear – Nervousness – Do not speak well – Anxiety.

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Decision To Take or Not to Take A Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test?

Decision To Take or Not to Take A Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test? Legal

• The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is legal to just say no.

Decision Not to Take a Breath or Blood Test • Is it legal or illegal to decline to take a breath or blood test? • The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is perfectly legal to just say no. • Does anyone fundamentally disagree with that law?

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Decision To Take or Not to Take A Breath or Blood Test

• Does anyone believe that a person who declines to provide a breath or blood specimen would only do so because they know they are guilty?

Decision To Take or Not to Take A Breath Test

• Is it legal or illegal to decline to take a breath or blood test? • The law gives every person the option to decline to take a breath or blood test and requires that if a person declines none shall be taken unless the police get a search warrant. It is legal to just say no. • Does anyone believe that a person who declines to provide a breath or blood specimen would only do so because they know they are guilty?

• What would a person who believes they are innocent and had nothing to hide do?

Intaxilyzer 5000 • A machine brought to you by the government. • Insert your tax return, it will read it and then decide whether you have committed tax fraud. If it says you have, you go to jail. • It will destroy (not keep) what you insert into it. You must just trust it and the government.

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• You also have the choice to have a committee of six look at your return (and they will not destroy it) and decide whether you have committed tax fraud.

• You also have the choice to have a committee of six look at your return (and they will not destroy it) and decide whether you have committed tax fraud. • What would you choose – the committee of six or the machine?

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Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions?

Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions? • He is someone who knows his rights and feels free to exercise them.

Decision not to Cooperate with Police • Who is the American “reasonable person” when it comes to police interactions? • He is someone who knows his rights and feels free to exercise them. • He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes.

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Decision not to Cooperate with Police • • • •

• He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation.

Decision not to Cooperate with Police • • • • •

• He rests secure in the knowledge that no physical harm will result and that the police cannot legally draw an inference of criminality from his refusal to cooperate.

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Decision not to Cooperate with Police • • • • •

•

Who is the American “reasonable person” when it comes to police interactions? He is someone who knows his rights and feels free to exercise them. He is not intimidated by the police, whether they are alone or in a group, in uniform or in plain clothes. He knows that when questioned, he can refuse to answer. He always feels free to end the encounter even if physically constrained by his surroundings and even if the police persist in their attempts to engage him in conversation. He rests secure in the knowledge that no physical harm will result and that the police cannot legally draw an inference of criminality from his refusal to cooperate.

• In short, he regards an encounter with police as no different from one with a panhandler on the street, a religious proselytizer at his doorstep, or a Hare Krishna in the airport."

Decision not to Cooperate with Police • • • • •

• •

• Texas Court of Criminal Appeals, September 11, 2013 – Wade v. State.

Drinking and Driving • Highway Slogan -- Drink, drive, _______?

10/21/2021

Drinking and Driving • Highway Slogan -- Drink, drive, go to jail.

Drinking and Driving • Highway Slogan -- Drink, drive, go to jail. • Is it the law -- True or false?

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Drinking and Driving • Highway Slogan -- Drink, drive, go to jail. • Is it the law -- True or false? • False: it is not the law: because it is not the law, should anyone be arrested simply for drinking and driving? • If you believe that Gonzalo was drinking and driving, but you are not sure beyond all reasonable doubt if he was intoxicated, the verdict has to be _______?

Mental and Physical Faculties • "Intoxicated" means: • (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body; or • (B) having an alcohol concentration of 0.08 or more.

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Mental and Physical Faculties • Are all persons mental and physical faculties the same?

Mental and Physical Faculties • Are all persons mental and physical faculties the same? • Are all people’s mental and physical faculties the same as an average person?

Mental and Physical Faculties • Are all persons mental and physical faculties the same? • Are all people’s mental and physical faculties the same as an average person? • Are your normal faculties always at the same level all of the time or are they in a range?

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• To know if a person does not have normal mental or physical faculties because of alcohol or for some other innocent reason, do you need to know what is usual (normal) for that person?

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Mental and Physical Faculties • Are all persons faculties the same? • Are all people’s faculties the same as an average person? • Are your normal faculties always at the same level all of the time or are they in a range? • What effects the range? • Time of day – Coordination – Physical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise – Anxiety • To know if a person does not have normal mental or physical faculties because of alcohol or for some other innocent reason, do you need to know what is usual (normal) for that person?

• Who would I ask to know what is usual (normal) for you?

Mental and Physical Faculties • Why do we not require demonstrations of normal (the average person’s) mental and physical faculties to get a driver’s license?

Mental and Physical Faculties • Why do we not require demonstrations of normal (the average person’s) mental and physical faculties to get a driver’s license? • What would happen if we required all people to pass field sobriety tests before they could get a driver’s license?

10/21/2021

Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal mental or physical faculties, should we test things that people normally do or things they do not normally do?

Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal faculties, should we test things that people normally do or things they do not normally do?

• What are some innocent reasons why someone may not look perfect on police tests but not be intoxicated?

Mental and Physical Faculties • If we want to a test to tell us whether someone does not have normal faculties, should we test things that people normally do or things they do not normally do? • What are some innocent reasons why someone may not look perfect on police tests but not be intoxicated?

• Time of day – Coordination – Physical or Medical Condition – Fatigue – Tired – Nervousness – Stress – Fear – Distrust – Surprise – Anxiety

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Police Exercises • Do you think that the exercises police ask people to do are a reliable way of distinguishing between someone who is intoxicated and someone who is not?

Police Exercises • Do you think that the exercises police ask people to do are a reliable ways of distinguishing between someone who is intoxicated and someone who is not? • Is any test or exercise meaningful if it cannot tell the difference between someone who is intoxicated and someone who is tired, uncoordinated, nervous, scared, has a medical condition, or is otherwise not able to do the test when not intoxicated?

Police Exercises • Who is certain they could do the police exercises perfectly right now?

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Police Exercises • Who is certain they could do the police exercises perfectly right now?

• If your failure to do them perfectly was going to result in the judge ordering you into custody right now, would you still be confident you could do them perfectly?

Police Exercises • Who is certain they could do the police exercises perfectly right now? • If your failure to do them perfectly was going to result in the judge ordering you into custody right now, would you still be confident you could do them perfectly?

• Who is not sure if they could do the police exercises perfectly right now?

Breath Testing • What do you know about the breath and blood test machines in Texas?

10/21/2021

Breath Testing • What do you know about the breath test machine in Texas? • Is any machine always accurate and reliable?

Breath Testing • What do you know about the breath test machine? • Is any machine always accurate and reliable? • Can you know that the results of a machine are wrong without knowing why it is wrong?

What is this?

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What is this?

This is a Great Dane. True or false?

What is this? This is a Chihuahua? True of false?

This is a Great Dane. True or false?

What is this? This is a Chihuahua? True of false?

This is a Great Dane. True or false?

I have a government DNA test report that says this is a Chihuahua? Do you believe it?

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What is this? This is a Chihuahua? True of false?

This is a Great Dane. True or false?

I have a government DNA test report that says this is a Chihuahua? Do you believe it?

Do you have to know why the DNA lab report is wrong to know that it must be wrong?

Accurate or Reliable?

Accurate or Reliable? Do you have to know why the scale is wrong to know that it must be wrong?

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Breath and Blood Testing and .08 • The law requires that you believe beyond a reasonable doubt that the results of a breath or blood test machine are accurate and reliable.

Breath and Blood Testing and .08 • The law requires that you believe beyond a reasonable doubt that the results of a breath or blood test machine are accurate and reliable. • If a machine reports a result of .25 and you either do not believe it or are not sure that the result is accurate or reliable, what does the verdict have to be?

10/21/2021

Breath and Blood Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

Breath Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

• If the State only proves an alcohol concentration of .08 or more at some time later than the time of driving and does not prove that the alcohol concentration was .08 or more at the time of driving, what does the verdict have to be?

Breath Testing and .08 • The law requires that the State prove that a person had an alcohol concentration of .08 or more at the time of driving and not just at the time of the test.

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Intaxilyzer 5000 • A machine brought to you by the government. • Insert your tax return, it will read it and then decide how much you owe. • You must just blindly trust it and the government.

Intaxilyzer 5000 • Anything wrong with the idea of this machine? • Anyone willing to blindly trust it to always reach the right result?

Intaxilyzer 5000 • You insert your return and it says you owe one million dollars in taxes. • On the other hand, you have evidence that you only made $50,000 and you believe the machine is obviously wrong and could not possibly be right. • But, the government says all that matters is the results of the machine and that if you do not pay the one million dollars, you are going to be guilty of tax evasion and go to jail.

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• Should anyone be guilty of a crime just because a machine says so when there is other evidence showing that the machine could be or is obviously wrong?

Police Officer Witnesses

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Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer?

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Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer? • Are police officers more believable than other people?

Police Officer Witnesses • Would you tend to believe a police officer over someone else just because they are a police officer? • Are police officers more believable than other people? • Some people say that even before a police officer testified, they would already lean towards believing what the police officer was going to say. Do you feel that way?

• Can a police officer’s opinion ever be mistaken or wrong?

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• Should a verdict is a criminal case be based on opinions or facts?

Police Must Follow the Law • May the police violate the law in gathering evidence? • Why? • What should happen if they do?

Police Must Follow the Law • No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

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Police Must Follow the Law •

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

• If the jury believes, or has a reasonable doubt, that the evidence was obtained in violation of [the law], then and in such event, the jury shall disregard any such evidence so obtained.

Police Must Follow the Law • Officer says he saw person run a red light and makes a traffic stop. After making the stop, the officer arrests the person for the traffic violation. In the course of inventorying the vehicle, the officer finds a dead child in the trunk. The person admits that he killed the child.

• There happens to be a video showing that the person clearly did not run the light.

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• If the person did not run the light, the traffic stop violated the law.

Police Must Follow the Law • Unless you believe beyond all reasonable doubt that the person ran the red light, of if you have a reasonable doubt, the law requires you, as a juror, to disregard all evidence that was obtained as a result of the violation of the law.

• This means that you could not consider either the child’s dead body or the confession.

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• Unless there was other evidence, the law would require you to find the person not guilty.

Police Must Follow the Law • Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free.

Police Must Follow the Law • Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free. • Other people would disregard it even though they did not like the idea of setting a clearly guilty person free.

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Police Must Follow the Law • •

Some people could not and would not be able to disregard the evidence clearly showing guilt because it would set a guilty person free. Other people would disregard it even though they did not like the idea of setting a clearly guilty person free.

• Could you and would you follow the law if faced with the decision? • Choices: • (1) I could and would follow the law and find a guilty person not guilty. • (2) I could not and would not follow the law and would find the person guilty despite the law.

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI.

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Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI?

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI? • Anyone who fails a breath or blood test is guilty of DWI without regard to anything else?

Questions – Rate 1 to 5 1 Strongly Agree - 2 Agree -3 No opinion 4 Disagree - 5 Strongly Disagree

• Anyone who drinks and drives should be guilty of DWI. • Police only arrest people for DWI if the person is guilty of DWI? • Anyone who declines to fully cooperate with the police investigating them for a suspected DWI is likely guilty of DWI?

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Group Decision • Assume 10 people are charged with a crime. Also assume that you know that nine are absolutely guilty and that one is absolutely innocent. • However, you must decide whether to convict all ten or find all ten not guilty. • If you convict all ten, then one innocent person gets convicted. If you acquit all ten, then nine guilty people go free.

Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system?

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Relationships and Groups • Do you have a close friend or relative who is in law enforcement, is a prosecutor, is a judge, or is otherwise involved with the criminal justice system? • Are you a member of or have you donated money to MADD or similar groups?

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Relationships and Groups • Do you have a close friend or relative who is in law enforcement, a prosecutor, a judge, or otherwise involved in the criminal justice system? • Are you a member of or have you donated money to MADD or similar groups? • Have you ever been a member of the 100 Club or donated money to Crime Stoppers? • Are you a non drinker? • Any bad experiences with alcohol or alcohol related crimes?

Do you know any of the possible witnesses? • • • • • •

Salvador Carrillo (Pct 4 Constable) Gustavo Deltoro Josie Hollowell (Harris County IFS) Guale Fessessework (Harris County IFS) David Ciers (HPD) Joseph Abellar (HPD – civilian)

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society.

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Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society. • Does anyone feel that way?

Jury Function • Some say it is acceptable to find someone charged with a crime guilty simply to send a message to that person or society. • Does anyone feel that way? • Others say that it is only acceptable to find someone guilty if the State has proven them guilty beyond and to the exclusion of all reasonable doubt.

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Decision Making • 6 Jurors means 6 verdicts. • Each person has the right to their own verdict. • If all six agree, then there is a group verdict. • If all six do not agree then there is not a group verdict. This is acceptable.

Decision Making 6 Jurors means 6 verdicts. Each person has the right to their own verdict. If all six agree, then there is a group verdict. If all six do not agree then there is not a group verdict. This is acceptable. • Some people stick to their beliefs and others go along to get along with the group. • Which kind of person are you? • • • •

10/21/2021

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about?

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about? • Is there any reason you cannot be here for trial through Thursday or Friday?

10/21/2021

Last Three Questions • Is there anyone who has anything that you want or need to talk to us privately about? • Is there any reason you cannot be here for trial through Thursday or Friday? • Is there anything else about you we should know? If we just asked you the right question, we would learn something important that you would want to know if you were us.

Thank You • We look forward to seeing six of you serving on this jury to judge the State’s case.

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: Blood Discovery Process Speaker:

George Scharmen

315 Dwyer Ave San Antonio, TX 78204-1105 (210) 226-8021 Phone (210) 224-5722 Fax georgescharmen@hotmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CAUSE NO. _______________________ THE STATE OF TEXAS V. _________________________

§ § § § §

IN THE ___________ COURT _____________________________ __________ COUNTY, TEXAS

ORDER FOR COPYING AND PRODUCTION OF BLOOD TESTING RECORDS THE COURT ORDERS the District Attorney’s Office and its agent, the forensic laboratory that analyzed the Defendant’s blood in this case, specifically, the Department of Public Safety Forensic Toxicology Laboratory, are to digitally copy and digitally produce documentation to the Defendant’s attorney as directed below: The Following Items Concern General Matters: 1.

A copy of any accreditation certificates for the laboratory that were in effect at the time of the analysis and a copy of the lab’s last complete inspection and final accreditation audit.

A copy of any internal, external, annual or reaccreditation, reviews, or reports since the time of the lab’s last complete accreditation audit and any internal, external, annual, or reaccreditation audits since the time of the test in this case.

A copy of all documents, not otherwise included above reflecting the failure of the laboratory to comply, at any point, with any essential, important or desirable criteria for accreditation or reaccreditation and all documents evidencing subsequent satisfaction of any essential, important, or desirable criteria for accreditation or reaccreditation.

The laboratory’s standard or general policies, protocol, and procedures concerning testing quality control, quality assurance, calibration, ACHIEVEMENT OF THE CALIBRATION CURVE, and administrative or technical review.

The Laboratory’s policies, protocols, and procedures as to testing, quality control, quality assurance, calibration, ACHIEVEMENT OF THE CALIBRFATION CURVE, and administrative or technical review of all samples, solutions and equipment used in or related to the testing of the sample, solutions, and equipment used in this case.

The laboratory’s policies protocols, and procedures concerning the sample selection criteria used in this particular case. 1 of 6

The Following Items Concern Pre‐analytical Matters: 7.

Validation studies (both internal and external) that prove the validation of the method, equipment, and instructions used.

The identification and source of all internal standards, standard mixtures (separation matrix), verifiers, blanks, and controls that were run within the batch in which the sample in this case was run as well as all certificates relating to the foregoing obtained from outside vendors, including vendor data supplied for individual lots of each standard concentration that state the expected range for said standard concentration in the form of Certificate of Analysis and/or expected concentration range expressed in package insert(s).

All records reflecting internal testing and verification and ongoing quality control testing of all solutions, reagents, or standard mixtures used as, as a part of, or in relation to calibrators, internal standards, controls, standard mixtures, or standards in the batch in which the sample in this case was run, including chromatograms of both standards presently in use as calibrators and controls at specific concentrations that were used to verify new standards and controls at corresponding concentrations and matrices prior to be being placed into use for reportable casework of samples. For purposes of misdemeanor cases records for two years prior to the date of this batch will be sufficient.

10.

All refrigeration logs, reports, or other documents in whatever form, for all refrigerated compartments in which this sample, other unknowns within the run, calibrators, internal standards, controls, standard mixtures, standards, and reagents used in or in relation to the analysis in this case were stored or kept at any time.

11.

All proficiency testing results for any person within the chain of custody for the sample in this case, including the person who conducted the testing in this case, for six (6) months prior to the testing of the sample in this case and for any such testing since the testing in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturer’s information sheet) against which the proficiency test results are judge.

12.

Balance quality control records on any balance instrument used in relation to the calibrator, samples, controls, internal standards, mixtures, or other solutions used in relation to the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case. This includes the records reflecting the calibration of weights on any balance relat4d to the solutions, mixtures or equipment used in relation to this case as well as any 2 of 6

control charts, for (6) months before and at any time since the testing of the sample inn this case. 13.

14.

15.

Pipette quality control records on any pipette used in relation to the calibrators, samples, controls, internal standards, mixtures, or other solutions or us4ed in relation to the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case for six (6) months before and at any time since the testing of the sample in this case. The employee training records, curriculum vitae, and résumé for any person listed on chain of custody documents in this case or who performed the analysis in this case. Maintenance and repair records (internal and external) for all equipment used in relation to the testing in this case for six (6) months before the test in this case and since the test in this case.

The Following Items Concern Reporting Matters: 16.

The identity, make, model, and brand or manufacturer of all equipment (GC, MS, and autosampler) and other supporting equipment (i.e. balance, pipette, etc.) used during the analysis and/or preparation of the samples in this case and the variables used in its installation and operation.

17.

The source and type of all consumables (reagents, columns, headspace vials and caps, disposable pipettes, etc.), used in collection, preparation, and analysis of the samples run in the batch.

18.

If a Gas or Liquid Chromatograph is used, the reporting of t0 time (time zero) according to the method.

19.

The calibration curve and chromatograms related thereto and all chromatograms generated in the batch in which the sample in this case was tested.

20.

All logs, spreadsheets, or other documents reflecting the sequence, order and/or analytical results of all calibrators, samples, standards, controls and blanks in the batch containing the sample in this case.

21.

Documentation of all machine parameters, settings, variables, and integration criteria in relation to the batch in which the sample in this case was tested.

The Following Items concern Reporting Matters: 22.

The particular records maintained for this testing and calibration event.

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23.

If not contained in item number 22, all documents and bench notes contained within the folder or file for the sample in this case, including a copy of any note or notation in the sample folder or file. These documents shall be segregated from all other documents produced.

24.

If the lab received more than one vial or container of blood or other sub stance, records reflecting which vial was tested in this case.

25.

The full reporting and the underlying validation of the valuation of the uncertainty measurement (UM) in the ultimate reported result.

26.

All chain of custody logs or reports in relation to the sample and the case file or folder related to the sample in this case.

27.

Any quality action plan (but does not include any report contained with the employees Human Resources file, and any Human Resources records will require a motion for an in camera inspection) and deviation request related to the type of testing, equipment, or personnel involved in this case for six (6) months before the test in this case and since the test in this case.

28.

An opportunity for the defense and defense experts to view, visually inspect, diagram, and photographically record the GC and/or MS, and its ancillary equipment used to test the sample in this case as well as the area, and all immediately adjacent and adjoining areas, in which the equipment used in this case are kept, and the sample(s) and kit or packaging in which the sample was received or may be contained. If the defense wants such an inspection, it shall be at a time mutually agreed upon by the parties and the laboratory.

29.

If a Mass Spectrometer is used, then the following additional materals should be provided: 29.1 If a spectral library is used to examine spectra and elucidate spectra, the source of the library spectra. 29.2 The hit list and the hit histogram for the testing. 29.3 All “tune” reports ran within one year of a MS detector was used. THE COURT FURTHER ORDERS that any evidence within the scope of the

items granted above be provided by the State to the defendant’s attorney’s office on or before 5:00 p.m. on the 60th day after this order is signed, or otherwise by mutual agreement. 4 of 6

THE COURT FURTHER ORDERS that this order is continuing and that the State will immediately make available to the defendant’s attorney any subsequent discoverable matter within the scope of the above granted items within 48 hours of the time it learns of or obtains such discoverable matter.

THE COURT FURTHER ORDERS that under the authority of Brady v. Maryland, 373 US 83; 83 S.Ct. 1194 (1963), all evidence favorable to the defendant is to be produced. Additionally, as per the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) (duties of District Attorneys” requires that “[t]he prosecutor in a criminal case shall:…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense..”) evidence that tends to negate guilt or mitigate the offense shall be disclosed . Said evidence is to be produced on or before 5;00D p.m. on the day of its discovery or by agreement.

THE COURT FURTHER ORDERS that any items herein not produced in violation of this order may be excluded from evidence in this case if offered by the State at the discretion of the Judge at a pretrial hearing.

THE COURT FURTHER ORDERS that the testimony concerning the items not produced in violation of this order, the information contained in those items, and the results obtained from those items may be excluded from evidence in this case if offered by the State at the discretion of the judge at a pretrial hearing.

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Signed _________________

____________________________________________ JUDGE PRESIDING

APPROVED AS TO FORM:

_______________________________________________ ASST. DISTRICT ATTORNEY

6 of 6

Blood Test Laboratory Analysis _______Laboratory Number__________ The blood test in this matter was performed in the toxicology lab at the Texas Department of Public Safety in Austin, Texas. For blood alcohol testing this lab uses Perkin Elmer equipment: a gas chromatograph attached to a turbomatrix. The two machines are connected by a heated small (capillary) flexible tube (column) and by software. The results of the test are printed from the gas chromatograph. Your disk that I reviewed contains those printed documents. The turbomatrix has a tray that contains your vial of blood and the vials of other persons along with the vials containing calibrators and controls. The turbomatrix has an automated needle that punctures the vials drawing out gases and sending them across the column to be analyzed by injection into the gas chromatograph. Important matters that must be evaluated are 1. the chain of custody of your blood from the place, date and time of the blood draw to the laboratory bench; 2. the review of the machine analysis and the analyst’s bench work for errors in the testing process; 3. the review of the calibrators and controls to be certain that they are in a range of correctness that satisfies the reviewer of the accuracy of measurement; and 4. the general review for evidence of any unusual or incorrect procedures by the analyst or the functions in the machinery. 5. I am familiar with the standard operating procedures in this lab because of my prior litigation experience with the lab, and I have found that their method has been validated scientifically. It is important for me to state that, while I have had training and experience in order to make this review, I am not a toxicologist or a forensic analyst. If there are errors in the process or if you desire to have a thorough expert review of the lab’s work you will need to hire a toxicologist. If we need a toxicologist in your case, I will recommend one to you. If you have any questions about his review, please call or make an appointment to come by the office and discuss it.

REVIEW The test was performed by analyst ________________ on ______________. The analysis was reviewed by analyst ____________________ on _________________. My review discloses as follow:

1. Chain of custody appears incorrect/correct, but it can/ cannot be confirmed without testimony. Nurse’s/or other professional’s affidavit shows pursuant to warrant no. _____________ that ____________, LVN/or other professional took the blood on ________________________ at _________ __m. The blood tube was received at the lab in Austin/Houston, etc. on _________________ by _____________ and assigned laboratory number ___________________, and it correctly recited the date, time and nurse from the blood draw or failed to so recite – be specific. It was submitted for alcohol analysis. The analyst reports the “same date and time” by a check mark, but he does not write in the date and time shown on your blood tube. 2. Machine analysis and analyst’s bench work: There appears to be no problem with the batch. The analyst’s chain of custody appears to be correct, but that cannot be confirmed without testimony based upon the lack of specific record. 3. The calibrators and controls are within range according to their control plots, and there were no interfering peaks affecting their function in your case as demonstrated by the chromatographs provided to us. 4. The is no evidence of any unusual or incorrect procedures by the analyst or the functions in the machinery. 5. The standard operating procedures were followed by the analyst.

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: Cross-examination Reasonable Doubts for Lawyers on Blood Speaker:

Dr. Jimmie Valentine 15 Cedarwood Ln Gulfport, MS 39503-6206 (501) 258-9242 Phone (228) 818-8733 Fax jimmielvalentine@sbcglobal.net email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

INTERPRETING FORENSIC TOXICOLOGY RESULTS

Jimmie L. Valentine, B.S., B.S., M.S., Ph.D. Professor of Pediatrics and Pharmacology (Retired) University of Arkansas College of Medicine Medical Pharmacology and Toxicology Consultant Gulfport, Mississippi jimmielvalentine@sbcglobal.net

CASE NARRATIVE

CASE NARRATIVE The officer who responded woke the man up and noticed odd behavior. "He was confused. His actions were consistent with somebody who might be under the influence of something," the officer reported Dr. Jimmie L. Valentine Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

CASE NARRATIVE

The man denied drinking, gave different stories about where he had been and at one point told the officers he had taken prescription medication to help him sleep. Dr. Jimmie L. Valentine Copyright 2021

CASE NARRATIVE

The man failed a field sobriety test and would not perform others. The officers brought him to jail, where he refused a test to determine his blood alcohol level. Dr. Jimmie L. Valentine Copyright 2021

CASE NARRATIVE

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

CASE NARRATIVE

BASIS FOR CORRELATING DRUGS FOUND WITH IMPAIRMENT • Impairment has been typically related to driving performance while using alcohol • General measures were developed by NHTSA “studies” Dr. Jimmie L. Valentine Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

BASIS FOR CORRELATING DRUGS FOUND WITH IMPAIRMENT (cont’d) Obviously, the general NHTSA criteria are not specific to drug impairment but are a cause for police officers to stop an individual and apply other criteria, such as Field Sobriety Testing as a guide to performing physiologically based tests one of which is drug testing Dr. Jimmie L. Valentine Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

“CAVEAT INTERPRETOR! As man does not live only by bread, so the toxicologist cannot interpret his results by numbers alone...” Sunshine I (Ed): Methodology for Analytical Toxicology; CRC Press: Cleveland, OH; pp 7–9; 1975. Dr. Jimmie L. Valentine ‐ Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

REQUIRED ELEMENTS FOR FORENSIC TOXICOLOGY EVIDENCE • Collaborative Pre-Submission evidence (expanded on next slide) • Proper collection of specimens • Laboratory analyses using validated procedures • Competent scientific interpretation and testimony concerning results Dr. Jimmie L. Valentine ‐ Copyright 2021

REQUIRED ELEMENTS FOR FORENSIC TOXICOLOGY EVIDENCE (cont’d) Collection of Collaborative Evidence • Police narratives, video, etc • Observations of police & witnesses • Accident investigations • Drug Recognition Evaluations Dr. Jimmie L. Valentine ‐ Copyright 2021

REQUIRED ELEMENTS FOR FORENSIC TOXICOLOGY EVIDENCE (cont’d) Proper Collection of Specimens • Decision as to which specimen is most appropriate • Is a preservative necessary? • Chain of custody Dr. Jimmie L. Valentine ‐ Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

REQUIRED ELEMENTS FOR FORENSIC TOXICOLOGY EVIDENCE (cont’d) Validated Laboratory Analyses • Methodology most appropriate for drug(s) to be determined • Processed by trained personnel • Quality Control Practices • Documentation of ALL reported results Dr. Jimmie L. Valentine ‐ Copyright 2021

REQUIRED ELEMENTS FOR FORENSIC TOXICOLOGY EVIDENCE (cont’d) Competent Scientific/Medical Interpretation of Reported Results • Based upon fundamental pharmacological principles • Expertise based upon academic training, research, peer-reviewed scientific literature, and experience Dr. Jimmie L. Valentine ‐ Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

Absorption Blood Drug Concentration

Distribution

Elimination

Pharmacokinetics Pharmacodynamics

Site of Action

Drug Concentration

Absorption Absorption & Distribution Distribution

Acute Dosing Elimination

Time

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

Chronic Drug Dosing

PHARMACODYNAMICS “The study of biochemical and physiological effects of drugs and their mechanism of action”

Goodman and Gillman; The Pharmacological Basis of Therapeutics, 10th edition, p.31

EXAMPLE OF PHARMACODYNAMIC ACTION Morphine relieving pain by an Interaction with a mu-receptor The interaction with the mu-receptor started the cascade of biochemical and physiological events that caused the pain to be lowered Dr. Jimmie L. Valentine ‐ Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

Administered Dose

Concentration at Site of action

Intensity of action

• • • • •

Rate & extent of absorption Body size & composition Distribution in body fluids Binding in tissue & plasma Rate of elimination

• • • • •

Physiological variables Pathological factors Genetic factors Concurrent drug use Tolerance

• Drug-receptor interaction

Therapeutic range

Pharmacological Effect

Concentration in plasma

Therapeutic vs Pharmacological Effect

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

IDEAL DOSE RESPONSE CURVE Observed effect

Sigmoid

Effective Dose ED50

Paracelsus Byname for Philippus Aureolus Theophratus Bombastus von Hohenheim a GermanSwiss physician 1493-1541

The dose makes the poison

Concentration

ALCOHOL v. DRUGS

Alcohol elimination – linear-like Alcohol

Drugs elimination – multi-modal

Drugs

Time

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

RETROGRADE EXTRAPOLATION • Process of using a determined blood concentration to predict what the blood concentration was at a prior time (incident, accident or arrest) • Principle assumption is that the determined concentration was in the post-absorptive stage and that the elimination phase was linear

ALCOHOL v. DRUGS • Retrograde extrapolation cannot be performed for drugs since elimination is multi-modal • Interpretation of drug concentration must not assume that a therapeutic levels is equal to impairment

THERAPEUTIC RANGE • The range of blood concentration for a given drug where its therapeutic effect is observed Example – therapeutic range for Alprazolam (Xanax) – 25-102 ng/mL In this range it would be expected that anxiolytic effects would be observed Dr. Jimmie L. Valentine ‐ Copyright 2021

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

Pharmacology Pearl Drug concentration may not correlate with therapeutic effect MEC for toxic response

Drug Effect

Peak effect Onset of effect Intensity of Action

Therapeutic Window (Range) MEC for desired response

Duration of Action

Time Adapted from Figure 1-6, Goodman & Gilman 10th Edition 2001, p. 25 MEC = Minimum Effective Concentration

SOURCES FOR THERAPEUTIC OR TOXIC LEVELS OF DRUGS • Winek Table – http://www.abmdi.org/documents/winek_tox_data_2001.pdf listed as µg/mL • Reppetto Table – Clinical Toxicology 35:1-9, 1997 listed as mg/L • Schulz et al Table http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3580721/ listed as mg/L

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

listed as µg/mL or ng/mL

November 5, 2021

listed as µg/L

(42 ng/mL) (3.8 µg/mL) (10 µg/mL)

Drug

Winek

Alprazolam

25 – 102

Carisoprodol 10 – 40 Meprobamate

2 – 26

Schulz

Reppetto

Units

5 – 80

10 – 50

ng/mL

10 – 30

–

µg/mL

5 – 10

3 – 26

µg/mL

Forensic Toxicology Interpretation Dr. Jimmie L. Valentine

November 5, 2021

ALCOHOL v DRUGS CONCLUSIONS • Oral absorption similar • Distribution; alcohol in body water, drugs in body lipids

ALCOHOL v DRUGS CONCLUSIONS • Elimination; alcohol linear-like & drugs multi-modal • Retrograde extrapolation – “possible” with alcohol but not drugs • Therapeutic range of drugs ≠ Impairment

Texas Criminal Defense Lawyers Association

17th Annual Stuart Kinard Advanced DWI Seminar November 4-5, 2021

Topic: Cross-examination of the Forensic Scientist/ Demo and Lecture Speaker:

Billy McNabb

144 E San Antonio St San Marcos, TX 78666 (512) 353-2136 Phone billymcnabb@billymcnabb.com email www.billymcnabb.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examination of the Prosecution “Blood Number Witness” by Billy McNabb That sinking feeling when we hear that this prospective client/ new case involves a blood test failure. I mean, blood tests are accurate, right? That is how those legal eagle DPS ALR attorneys describe it, after all. The “gold standard” is what prosecutors like to call it and you can’t argue with technology, can you? So, what chance can we possibly have? But after surviving the initial wave of cynicism, it is time to start thinking like an advocate-how can I defend this case that involves a blood number over the legal limit? To me, in a failure case the most important thing is not the number, but the rest of the case. Meaning, but-for the blood number, is it an otherwise winnable case? If the answer is no, then the blood number really doesn’t matter. If the answer is yes, then we are going to trial. The task then becomes to either raise doubt about the blood number, to minimize its impact, and/or to make that jury pull for you and not the prosecution. During this course you have heard from leading experts and advocates on the subject of gas chromatography. They are to be commended for sharing their knowledge with the rest of us. You have been exposed to more scientific principles than you can probably remember or ever put to use. So how do we take this mountain of information that we may only vaguely understand and somehow turn it into a defense? Or more specifically, what wins in a blood test case? What is important to that jury? I have been fortunate over the years to have had meaningful discussions and feedback from jurors on my cases. More often than not I will receive a call or an e-mail from at least one member of each jury. To be able to hear what they discussed, what they did and did not attach meaning to during their deliberations is invaluable. What I have gathered from these discussions is that jurors rarely have any concept of the scientific evidence that was presented over the course of a trial. Also, I have learned that the less scientific I am in my approach, the more anecdotally I can present the shortcomings of the scientific principles, the better my success has been. I say this with a caveat, this is not an absolute, but it seems the less scientific I appear to the jury the better chance for me personally. Another dynamic present in blood test cases that cannot be forgotten is that most often the blood draw was non-consensual. Most jurors may not have a problem with a non consensual blood draw. However, no matter the jurisdiction, at least some jurors will take issue with the government assaulting a fellow citizen with a needle. Use this to your advantage. By the end of voir dire you should know what each juror really thinks about non-consensual blood draws.

Most of my success in blood test cases has not been so much getting the jury to disbelieve the blood test number, but more so about getting the jury to disregard it. This is a combination of my strengths as well as my weaknesses. I will never have as thorough an understanding of gas chromatography as the Troy McKinneys, Dr. V’s, and George Scharmens of the world. But at the conclusion of the prosecutions direct examination of their blood test witness, no jury has any understanding of blood test methodology, and I try to use this to my advantage. It is along this theme of almost “ahh shucks”, country lawyer simplicity that I submit the following, a non-exclusive list of general considerations when defending a blood test case: Be Yourself No matter what your style, no matter what phase of the case, always be yourself. A jury will not punish your client if you are not polished, but they will if they think you are being disingenuous. Jurors are people, and people in general know when someone is being sincere and when someone is not. Whoever you are, whatever you are, whatever you are not, be yourself. Even if you are not the most likeable person, the jury will like you more for being yourself than for trying to be someone you are not. Be Honest With The Jury, Admit Your Limitations If you don’t know much about the blood testing, it’s okay to admit if you can work that into your overall strategy. That is more effective than trying to pretend you are blood test smart, and then make no progress in damaging the blood evidence against your client. Ask Questions That Yield Only The Answer You Want Do not give the witness any opportunity to explain a concept in a manner that is not helpful to your cause. I would rather the jury not understand blood testing versus me explaining it to them through my examination of the other side’s witness. The less the jury understands about blood testing, the better chance I have of success. Get In, Get Out Don’t be “that guy.” You know, the one that stays at the party until the bitter end. The one that wore out his welcome long ago. The same principle holds true for cross examination. Make points, or better yet set up points to be made in closing statement. If you linger around too long you run the risk of the jury attaching more significance to the blood test simply because you belabored it excessively in cross examination. The last thing you want is the jury thinking: “we have no idea how the blood test works, but it sure must have been bad because that defense attorney spent all day harping on it.”

I have seen more than my share of defense attorneys snatch a defeat from the jaws of victory by violating this most simple principle. Have Purpose Everything you do, or don’t do, needs to be for a reason. Even if it is not apparent at the time, it should be by the end of the trial. Writers call this foreshadowing, planting a seed whose significance is not readily apparent, but pays off in the end. Ask yourself, why am I asking this question? And just as importantly, why would I not ask this question? Be able to explain to yourself what your purpose is every step along the way. Don’t Legitimize The Prosecution Case I try to never use terminology in front of a jury that in any manner legitimizes any aspect of the prosecutions case. It is a machine, not an instrument. There is a margin of error, not an acceptable level of deviation, or whatever sugar-coated phrase they call it. That person is not the State expert, that person is the prosecutor’s blood number witness. Or the prosecutions blood number advocate. Words and terminology can have a subtle, yet powerful effect on jury conscience. Use their terms, and you run the risk of subtly giving them and their case credibility. Give the Jury the Correct Lens As trial attorneys, we sometimes get desensitized and thereby blind to certain things that can influence a jury. For example, jurors knowing that a Judge signed a blood search warrant may equate that with the Judge endorsing the blood analysis that followed. Stop this dead in its tracks in voir dire, when you explain to the jury that a signed search warrant is not an endorsement of anything having to do with the blood, it is simply the judge saying “if this is true, I authorize you to take the blood.” Another example of providing the jury the correct lens is the designation of your opponent, they are the prosecution not the State of Texas or the state or whatever. Prosecutors will refer to themselves as “the State of Texas” at every opportunity because they know that the subtle effect is that some jurors will grab onto that term of inclusion, seeing it as being on “the State of Texas” team as being synonymous with being a good Texan. Don’t Ask Questions Simply To Show Your Knowledge I often hear defense counsel questions that were asked for no reason other than the attorney trying to demonstrate some proficiency in blood testing. These types of questions only lend credibility to the test.

Great! The attorney has shown that he can repeat something he learned somewhere along the way. But to the detriment of the only person that matters, the client, the attorney has also legitimized some aspect of the blood test. Makes me believe that if they demonstrated half as much about blood testing as they thought they knew they would win twice as many trials as they do. Do Not Ask Questions Uh, come again-don’t ask questions? That’s right! Fact is, most questions probably should not be asked. Effective cross is as much about not asking questions as it is asking questions. And some questions are better asked rhetorically during closing statement and not during cross examination. Think of our beloved national pastime. A pitcher is not simply a pitcher, but falls into one of several roles: starter, middle reliever, setup, and the closer. The closer is the ace of your bullpen whose role it is to come in and get the final few outs to protect a lead. Leave any one of the others in too long and you’ve blown it for your closer. Similarly, ask too many questions of the prosecutor’s blood witness and you’ve blown it for your closer. Instead, save them for closing argument, with no opportunity for the prosecutors blood witness to explain/answer. When I do ask questions, often they are not so much actual questions as they are statements for which the witness is to agree. Indictment by question, the question which compels only one answer, the answer you want. Be Prepared No matter what, you always have the distinct advantage of being the most prepared, of knowing your case better than anyone else. Do just that, know your case and every single facet therein. Labs will have Standard Operating Procedures. Read them. Study them. Learn them. Then read them again. And again. There is no pop quiz at the end, so don’t feel like you are having to memorize them. Or even understand them in their entirety. Just read them and keep reading them and over time the concepts will begin to mean something. So that when something happens you can throw the red flag. Labs are members of associations. Prosecution blood witnesses will often tout these affiliations to bolster their credibility. However, they invariably tend to stray from these procedures out of convenience, or just plain laziness. When confronted, prosecution blood lab witnesses often back pedal, stating that these are not in fact requirements, but rather “suggestions.” Know the recommended procedures of the associations as well as the lab in question. When you anticipate some resistance by the prosecution witness on some concept that is important to your case, be prepared to handle the witness accordingly via learned treatises, prior testimony, etc... 4

Don’t Ask Questions That Actually Further Your Opponents Cause Ask yourself what the purpose and ultimate effect is to each of your questions. If an answer to any of your questions can serve to actually hurt your case, or legitimize some aspect of theirs, then it is not a question that should be asked. Control the Witness Prosecution blood witnesses tend to answer questions in a manner to further a prosecution instead of providing an answer rooted in science and objectivity. I call it agenda-driven testimony; they are testifying to secure a conviction and not as an objective, neutral and detached witness. Shut them down when they are not being responsive. Get them to answer your question instead of merely serving as a pulpit for them to spew their prosecution bias. Dynamics Dynamics exist that can influence every trial. Your job is to find them and use them to your advantage. For example, for the better part of two years our lives have been turned upside down by a worldwide pandemic. Many have died, many are devastated financially. For many, life will never be the same because of a virus that originated in China. The very same China that produced the gray top tubes used to preserve blood specimens prior to police lab analysis. The very same gray top tubes that have been the subject of a large recall because the vials did not contain the required blend of anticoagulant and preservative. The fact that we entrust something so important to a country whose people are so repressed they have to eat bats, cats, and rats should provide plenty of fodder for cross examination on the subject of vial recall. Considering the above general concepts, the following are some sample areas for cross examination from past trials: Objectivity When a thorough review of the case reveals something that I know the prosecutors blood number witness will not like to admit/try to minimize, I usually begin with something along the lines of the following: -

you understand that you are a witness who is supposed to give honest, objective, and unbiased testimony and not just simply testify to help the prosecutor secure a conviction

Then move into having them make admissions about the substance of which you know you will be exposing issues: 5

you have written procedures

called Standard Operating Procedures

the rules by which the test has to be performed

they exist for a reason

to make sure it is done right

to make sure it is identifying compounds correctly

to make sure it is measuring compounds correctly

if the rules are not followed, then you can get the wrong result

you are familiar with what is called the Society of Forensic Toxicologists

you would agree that to be an authoritative source of testing blood for alcohol concentration

they have promulgated procedures

certainly, you would not disagree with any of their recommended procedures, would you Venous BAC v. Arterial BAC

when a person consumes ethanol, the body could be absorbing it

meaning taking it in

this is called absorption

at some point our bodies begin to burn it off

called metabolization

post absorptive phase means the time at which our bodies begin to burn it off, metabolize it

during this phase, metabolization phase, BAC in venous blood is higher than that in arterial blood

the blood drawn here, the blood you tested was venous blood

which has a higher alcohol concentration than what would have been in his arteries at the same time

if he had his first drink, his first few drinks over an hour before his blood was drawn, then he was in the post absorptive phase

meaning at the time his blood was drawn, the blood taken from him, venous, was actually higher alcohol content than other blood in his body

higher concentration than that contained within his arteries Calibration

If you are dealing with a lab that does not run multi point calibrators, consider the following: -

a GC machine does not come ready to run tests from the manufacturer

It has to be taught through a process to be able to distinguish one compound from others

that is the purpose of the separation matrix

to make sure the machine can distinguish various compounds from one another

this is called separation

without good separation, we have nothing

and the machine has to be taught to be able to measure that compound

this process of measuring, it is teaching the machine how much of something is present

this is done with ethanol standards of a known concentration being run

what are called calibrators

because the machine does not come from the manufacturer capable of measuring, or quantifying, ethanol

you teach it how to measure ethanol

calibrators are known concentrations of ethanol that are used to teach the machine what a certain concentration of ethanol will look like

this process has to occur every time the machine is used

ideally, calibrators are run at the beginning of a batch run.

without good calibration we have nothing

the authoritative source, Society of Forensic Toxicologists, recognizes the importance of accurate calibration

the Society of Forensic Toxicologists, in fact, promulgated specific criteria to follow

what they call Laboratory Guidelines

you certainly don’t claim to more about blood testing than them, do you

and within these guidelines, S.O.F.T. has specific criteria to be followed regarding calibration

and these guidelines dictate that calibrators of several different concentrations be used for proper calibration

in fact, the guidelines dictate that linearity of the procedure should be established by using at least three calibrators

the concentration of the calibrators should be such that they bracket the anticipated concentration of the specimen(s)

the subject specimen concentration could fall anywhere within a broad range

this means calibrators should be run both at points below and above what could be expected to be in the concentrations for all subjects in that batch

that means running a calibrator lower than any of the subject samples

and running a calibrator higher than any of the subject samples within that batch

simply put, S.O.F.T. recommends using calibrators across a broad range of differing concentrations

but this is not what you did in this case, did you

you ran only one calibrator that contained only one concentration of ethanol

believed to be .08

and it in fact does not necessarily test out as .08 when you ran that known .08 concentration as a calibrator

whatever that result is, it is plotted as a point

you can not make a line using only one point, can you

it takes at least two points to draw a line

take a look at this diagram, that is what you referred to as a calibration curve

the same calibration curve associated with the batch within which our specimen was contained

that straight line, that started off with only one point

you had only one point, that point that was created when you ran the .08 calibrator

but as we can see from what you referred to as the calibration curve, there is a straight line

meaning you had to somehow come up with another point to anchor the line that is represented

and that second point to was necessary to make that line, that calibration curve, that was not created by any process of testing was it

it is something you program the machine to do

you cause it to create a second point, plotted out as zero on the x and y axis

so whatever the .08 calibrator checks out at, a point is plotted, then from that point a straight line is forced bach through zero on the x and y axis

this single point and the line that you drew from it and forced through zero you refer to as the calibration curve Negative/Blanks and the Ethanol Carryover/Contamination Defense

within each batch there is a sample tested that you call a blank/negative

it is nothing but n-propanol 9

it is not supposed to contain any amount of ethanol

its purpose is to prove that there is nothing wrong with the machine

or the analysis

to detect carryover

carryover can be a problem with this type of testing

carryover is a form of contamination

occurs when the substances in one test carryover into the next

yielding a falsely high reported concentration

the purpose of the blanks is to detect this type of contamination

the Society of Forensic Toxicologists state in its regulations that these errors are the most serious type of error associated with this type of testing

and that possible causes of the error must be thoroughly investigated

including contamination of glassware

and carry-over

and other possible causes

the significance of this type of error is mirrored in D.P.S. Standard Operating Procedures

which states that blanks should contain no detectible volatile other than n-propanol

and if a volatile contaminant is detected, the source of contamination will be identified

and corrected

the machine will run many samples in the same batch

vial of his blood was loaded into a tray

and many others are also in that same tray

like forty other people

you call that a batch

so someone’s specimen is run immediately before his

and someone else is run immediately after

in fact, 4 people before him

those results were .22

.21

.17

.24

so of the 4 specimens prior to his, all were twice the legal limit

one 3 times the legal limit

contamination in blank can come from many sources

it can be carryover

meaning the machine did not fully purge the ethanol out of the machine from the last specimen

it could also come from a leaky septim

septim is a rubber thing

other sources of possible contamination

the blanks were not immediately before his specimen was analyzed

nor were they immediately after his specimen was analyzed

best practice would be to run blanks in between each citizen’s specimen to ensure that there is no cross contamination, or carryover, from one subject to the next

no law prevents you from doing that best practice 11

this is what chemists do at the Dow chemical plant on the Gulf Coast, they run blanks between every sample

to ensure no carry over

Without blanks between each subject test, we can’t ensure that there was no carryover

and this best method to prevent carryover, running a blank between each citizens specimen, is not something your lab does due to inconvenience

The following is a blank from a past jury trial. The test was performed by DPS lab on a dual column GC machine. The batch was run through each column two separate times, for a total of four tests. Each batch contained a blank, for a total of four blanks. Each run the blanks in column/channel A were clean, whereas the blanks in column/channel B each time detected ethanol.

The subjects BAC for both columns was virtually identical each time, thus I knew the prosecutions blood witness was going to try to minimize the presence of ethanol in one column when the machine 12

did not detect it in the other column. My cross on this particular issue was something like as follows: -

according to the machine this blank contained detectible amount of ethanol

contamination

ethanol present at a time and place it is not supposed to be present

DPS SOP’s require in just such an instance that the source of contamination be identified

and corrected

the source of this ethanol contamination was not at that time identified

so likewise the source of the ethanol contamination was not corrected

Not surprisingly, the prosecutions blood witness tried to sugar coat the dirty blank by saying that it may not have been ethanol at all, but rather, “noise.” The witness also came up with the smallest number I’ve ever seen to represent the ethanol concentration, “if it was even ethanol” and was quick to point out that all the tests of the subjects from both columns were virtually identical. Instead of arguing with him about the significance/insignificance of the blanks, I was going to ask a few more questions, then save the rest for closing. -

what you just said, that ethanol was not present in the column A blanks, you said that without looking at a note

because you reviewed the records and remembered that

whatever the significance of the blank, you knew it at the time of the test

in fact, you initialed each of the chromatograms

including the ones that evidenced ethanol contamination in the blank we are talking about

that is your initials, “jb”

so you certainly knew prior to testifying today that the machine identified ethanol in the blank

you understand that the prosecutor has a duty by law to see that justice is done

did you speak to the prosecutor about this prior to testifying 13

(One of the few times I ask a question that I do not know the answer to, but will cover it either way in closing) -

you agree that justice is the search for the truth, not just whatever it takes to convict a fellow citizen, but the search for the truth

and in this search for the truth today, you and the prosecutor certainly did not bring up what you knew about until I pointed it out, that there was ethanol in the blank that was supposed to be free of ethanol

S.O.F.T. regulations state that for specimens having concentrations significantly higher than the highest calibrator, the laboratory should exercise precautions so that carry-over of analyte into the next specimen does not occur.

and, once again, you only used one calibrator, .08

and the .136 we are talking about in this case, you would agree that is significantly higher than the .08 calibrator

and the four other subjects tested immediately before his specimen, like we previously discussed, the machine reported ethanol concentrations of .22

.21

.17

.24

so of the 4 specimens prior to his, all were twice the legal limit

one 3 times the legal limit

all of those are likewise significantly higher than the .08 calibrator

and there were no blanks run in between any of those, it was just one specimen over the double legal limit after another

S.O.F.T goes on to state that similarly, specimens with very low concentrations should be checked to ensure that carry-over from a previous very high positive has not occurred.

and you did not do that, correct

That was the end of the examination regarding blanks, I saved the other questions for my “fly in the 14

soup” closing. It went something like: He knew that there was ethanol in the blanks, heck, he put his initials on the things. So, yes, he knew. Then when the subject came up he tried to sugar coat it, without even glancing at a document, he argued that the other column, column A, did not have contaminated blanks, and since all concentrations are virtually identical, the blanks were of no significance. What am I most disturbed by? That the regulations are being disregarded by not finding and fixing the source of the contamination. That such can falsely elevate fellow citizens ethanol concentrations. Sure, that is disturbing. What really gets me is that he sure did not volunteer on his own that carry over contamination was present. He knew it all along, he damn sure did not bring it up in his scripted story during this trial with the prosecutor. That same prosecutor that has a duty to see that justice is done did not bring this up in the form of any question. And the same blood number witness who knew the prosecutor has a duty to see that justice is done sure did not bring it up, either. Is that justice? Or is that just trying to win, and throwing justice and fairness out the window? He was just going to sit there and hope that this dumb country lawyer didn’t bring it up. And if I didn’t, he would have never told you, even though he knew it all along. Science is rooted in fact, objectivity, and full disclosure. Well, I may not know much about this blood nonsense, but I do know that when there is contamination, it can falsely elevate a citizens result. I know that the four peoples specimens tested before his were twice and triple the .08 legal limit. I know that when there was contamination, he disregarded his own rules and just plain common sense. I just wish I knew more about this test, so I could point out other things that he does not want you to know, ways that they don’t follow authoritative guidelines. Then he contradicts his own machine, and says that the ethanol in the blanks might not be ethanol at all, but rather “noise.” So, they are asking you to believe everything else about this machine, just don’t believe when the checks and balance to detect contamination actually detects contamination. Don’t pay attention to the machine on that point, he says. So, they bragged and bragged about how sensitive and accurate this machine was, and now he is essentially saying the machine is wrong? Really? Hey prosecutor blood witness, pick a story and go with it, it makes your argument more convincing. Yeah, I wish I knew more. So I could get him to admit whatever else it is that he doesn’t want you to know. And when he tries to minimize the significance by saying the ethanol, “if it is even ethanol,” present in the blank is so small it could not possibly effect the result, don’t fall for that. That is like you calling the waiter over to tell him there is a fly in your soup, and he reaches down and scoops it out with a spoon and tells you enjoy your lunch. No one would stand for that. But that is what they are 15

asking you to do in this case. They are not even willing to throw out your bowl, but even that would not be enough. You have to toss out the whole pot. The whole batch. And I submit to you that the presumption of innocence is more important than a bowl of soup. “Confidence Level” DPS lab will prepare an ‘Alcohol Content Laboratory Report’ like the one below.

Notice when reporting an alcohol concentration DPS gratuitously throwing in a “99.7 Confidence Level.” In the mind of a juror, DPS is saying, in this particular case, that they are 99.7% sure that 16

this individual had an alcohol concentration of .102. Gee, that sounds pretty compelling, does it not? Not hardly! A quick study of DPS own SOP’s shows that DPS is in fact not over 99% sure that the alcohol concentration was .102. Consider the following: -

take a look at your “Alcohol Content Laboratory Report”

you discussed this with the prosecutor

the prosecutor asked you about the stated confidence level of 99.7%

you would agree that implies to the jury that you are 99.7% sure that the alcohol concentration was .102

you would agree that you are in fact not that certain that the alcohol concentration was .102

DPS admits that there is an uncertainty measurement of 9.4% built into every result that they report

and 100% minus your recognized uncertainty measurement of 9.4%, that result is most certainly not 99.7%, is it

good practice is to run controls of a known concentration within each batch

and for the controls of a known concentration above 0.10, the results must be within 10% of the expected value

so you are not really 99.7% sure that this sample was actually a .102, are you

we have discussed what you call the confidence level and uncertainty measurement, so for those of us that are not part of the prosecutor and DPS team, which of these is what the rest of us would refer to as the margin or error

is it the confidence level

the uncertainty measurement

or both Candida Albicans

The person next to you is covered in them. They are everywhere. But one place they should never be is inside a blood vial. And despite prosecution attempts to minimize its effect if present in a blood vial, its presence can cause neo-formation of ethanol. The result will be a falsely elevated 17

concentration at the time of testing. Be prepared. Have a learned treatise in hand to demonstrate to the jury through the state witness that the presence of candida albicans is not as harmless as the state wants them to believe. Always check the tube expiration dates. Gray top tubes will have a powder inside that is comprised of two substances, a preservative and an anti-coagulant. You will not get any state witness to admit that these substances lose their potency after expiration. The expiration date is not so much a shelf life for the powder inside as it is the tube itself, or more specifically, the integrity of the tube seal. If the seal is compromised, ambient air could leak into the tube, bringing along its good friend candida albicans to feed on the glucose in the blood. I have covered this topic before as follows: -

on the subject of the blood vial, it contains a preservative and anticoagulant

which if not mixed properly can cause the blood to clot

if blood clots serum will form

ethanol is drawn into the serum, not into the clot portion

causing a falsely high ethanol concentration

Candida albicans is a microorganism

you don’t want candida albicans to be present in the vial

because they can feed on the glucose present in a blood sample and actually cause ethanol production

causing a BAC higher at the time of the test than what was actually in a persons system at the time of the blood draw

and this machine can’t distinguish this ethanol from ethanol that was present in the blood at the time of the blood draw

this type of alcohol production requires two things

micro organism, candida

and glucose

the same glucose present in every blood sample

so one of the two necessary ingredients for this phenomenon to occur is present, glucose in the blood in the vial

less than perfect technique in prep and draw could result in candida being present in the vial

did nothing to rule out the possibility of candida

analyst did not test for it

sodium flouride does not prevent ethanol production by candida albicans(see Am.J.Cin.Path. 60:700-702, 1973)

certain measures are taken to ensure that this does not occur

refrigeration

if not refrigerated properly this will occur

refrigeration slows this process

but does not stop it

you don’t want candida to be present in the tube

you did not test to ensure it was not present

so you can’t say candida was not present, can you

The subject of neo formation was central in one of my first blood test trials. My client was charged with intoxication by having lost his faculties. The prosecution did not plead the BAC/per se theory of intoxication. Because intoxication is defined by statute, the prosecution does not have to plead a specific definition of intoxication.(State of Texas v. Barbernell). However, once the prosecution pleads a theory, it is bound by it(Black v. State of Texas), meaning that since they plead the faculty definition of intoxication, they should not get to introduce any per se intoxication theory/evidence. So we fly the case under the radar so we can object at trial to any blood/per se evidence as such was not plead and therefore should not be admissible, right? Wrong! The prosecution, over our objection, was allowed to abandon the specifically plead faculty definition of intoxication, which took the charge back to the general statement of intoxication, and as such all theories of intoxication would be presented to the jury. Said the Judge...Proceed. “But, by allowing the prosecution to abandon the specifically plead faculty theory, now all 19

definitions of intoxication are on the table. That abandonment over my objection is tantamount to a trial amendment, and I object” I said. Overruled. “Your Honor”, I said, “this is violating a doctrine that has never been doubted in our Constitutional system; that a person cannot incur loss of liberty for an offense without notice and a meaningful opportunity to defend. I mean, Article I, section 10 of the Texas Constitution guarantees the right to be informed of the nature and cause of the accusation against him. This guarantee enables the accused to learn in advance of trial and with reasonable certainty with what he is being charged so that he can prepare a defense.” Denied. Since the court was not impressed with the law, I tried a common sense approach, telling the court that allowing the prosecution to abandon the plead theory at trial was tantamount to ambush. Denied. “But Judge”, I said, “imagine the skullduggery this invites, that the prosecution can plead one theory, with no intention of doing anything but abandoning that theory at trial, only to offer a completely different and unplead theory at trial. That is exactly what this invites. Rabbit trails. Sand bagging. Bad faith. Ambush. A move that is calculated to injure our Constitutional rights. That is exactly why case law does not allow it.” Move along. So here I am in a blood trial, dealing with a blood test that should have never been allowed in evidence, my clients right to notice not only violated, but flat out sodomized. So I drew strength from my ALR motto, “we’re all gonna suffer” and proceeded to conduct the most lengthy and brutal 705(b) hearing outside the jury’s presence that I could muster. The prosecutors blood witness and I covered a myriad of topics. Once the jury was brought in I began to notice that many topics that were covered in the 705(b) hearing were not covered in front of the jury, including specimen refrigeration prior to testing. The prosecutor covered it at length outside the jury’s presence, but must have gotten lost and did not cover it in front of the jury. The sodium flouride preservative was hardly covered at all in front of the jury. Oh well, not my job to tie up that little loose end! At this point, the following form had been admitted into evidence by the prosecutor. As evidenced, the procedure on the form itself recommended refrigeration. This and some other subjects were thoroughly covered outside the presence of the jury, but not in front of the jury. So despite the lengthy 705(b) testimony, I asked few questions of the prosecutor’s blood witness, knowing that many particulars had not been spelled out to the jury by the prosecutor’s blood witness. In closing argument, among other things, we pointed out the length of time after the draw before the specimen was sent to the lab, that their own evidence required refrigeration, but there was not evidence before them of any such compliance.

Discussions with jurors after the verdict, including the following letter from one of the jurors on the case, reinforced my suspicion, that the jury had no evidence before it as to the significance of the specimen not being refrigerated nor about several other preservation practices.

Juror feedback is always an education. It teaches me what is important to them, what I can do better, and sometimes serves to reinforce some things I hold true. And by not filling in holes in the prosecutors case for them, and instead conducting some of our cross examination of the prosecutor’s blood witness in closing argument, we screwed up another perfectly good appeal when the jury returned its not guilty verdict.

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

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Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014