DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense." 

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” 

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.” 

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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DWI Law - Texas Holds HGN Cannot Be Used to Prove Blood Alcohol Content

In Jones v. State of Texas, Not Reported in S.W.3d, 2011 WL 5607832 (Tex.App.-Dallas), the defendant on appeal complained that the trial court erred when it allowed the police to correlate the results of an HGN test to a BAC of 'over 0.08'. Specifically, the appeals court wrote:

"The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769; Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). It is error to allow such testimony at trial. See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ “ was impermissible correlation of defendant's performance on HGN test to blood alcohol content); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees. Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues. Odom continued:

ODOM: A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point. So there is a total of six clues on this HGN or eye test. There are six clues. A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE: There are statistics that go along that you talked about?

ODOM: Yes, if they meet that decision point which in this case is four. If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE: Your Honor, I am going to object to that. That is improper. In Texas it is not recognized as being equivalent to any number. It would be on BAC. That is case law.

COURT: I think that is cross examination. Overruled."

The appeals court found that the admission was error. The appeals court then had to decide whether the error was harmless. The court reviewed the remaining testimony, noting that this remark was only made once out of 173 pages of testimony (who said length doesn't count?). The appeals court also concentrated in particular on the defendant's expert Dr. Lance Platt, summarizing his testimony as follows:

"After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test. Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing. His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas. According to Platt, there are three parts to an investigation for driving while intoxicated: vehicle in motion, personal contact, and sobriety testing. Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

"Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system. Platt also discussed the heel-to-toe walk and the one-legged stand tests overall. Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest. When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

"On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested. Platt testified without objection that, in his research, 91 .6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher. Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.” He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests. Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests."

The appeals court concluded that the error was harmless:

"Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury. The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages. The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment. The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening. The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station. Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night. After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial."

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DUI Law - Juror Dating Fellow Prosecutor No Big Whoop Says Texas

In Hammett v. State of Texas, Not Reported in S.W.3d, 2011 WL 5189109 (Tex.App.-El Paso), the defendant was convicted of driving while intoxicated and was sentenced to 180 days in jail, probated for 18 months. On appeal, Hammett asserted that he was denied a fair trial because the foreperson on the jury failed to disclose that she was dating a prosecutor. On appeal, the court affirmed the conviction:

"The record does not establish that the foreperson withheld any information. She truthfully stated both on her questionnaire and during voir dire that she knew a particular prosecutor. The juror questionnaire is not in the record, but there is nothing to indicate that the questionnaire asked specific questions about the nature of a prospective juror's relationship with anyone, and even if it did, counsel still had an obligation to follow-up with oral questions. Hammett's trial counsel chose not to ask about the nature of the foreperson's relationship with the prosecutor. We also note that the venire was sworn in by the judge before voir dire, and we take judicial notice that the oath requires prospective jurors to answer truthfully any questions propounded to them. It does not impose a duty on the prospective jurors to volunteer information."

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DWI Laws - Texas Dismisses Case Based on Illegal Stop

In State of Texas v. Kerwick, --- S.W.3d ----, 2011 WL 5247890 (Tex.App.-Fort Worth) Officer Jeffrey J. Bradford was dispatched to a bar on North Main Street in Fort Worth in response to a call about several people fighting in front of the bar. When Officer Bradford arrived at the bar, several people were standing outside in front of the bar. Officer Bradford made contact with the person he believed to be the person who had called the police. The person was the owner of a damaged vehicle. That person pointed to a vehicle parked on the street across from the bar and said, “There they are right there. There they are, there they are.” Officer Bradford walked over to the vehicle as it started moving northbound on the street and stopped the vehicle by yelling at the driver, ordering her to stop. Officer Bradford testified that he “believed that they—at that point they were involved in an offense.”

In affirming the granting of a motion to suppress, the appeals court wrote:

"In short, the record before us simply contains no facts to enable either the trial court or this court to objectively evaluate either Officer Bradford's belief that the person who said, “There they are right there. There they are, there they are,” was the person who had called the police or his belief that Appellee was “involved in an offense ... [—a]n assault, criminal mischief, or both.” No facts exist in the record to enable the trial court or this court to assess whether either of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158 S.W.3d at 493. Without specific, articulable facts, a court has no means of assessing whether an officer's opinion is objectively reasonable. Id. Without specific, articuable facts, a detention cannot be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular seizure in light of the particular circumstances. Id. And when such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. Allowing a police officer's opinion to suffice in specific facts' stead eviscerates Terry's reasonable suspicion protection. Id."

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DWI Law - Texas Says "Tell the Officer Yes" is Not Coercive Breath testing

In Leal v. State of Texas, --- S.W.3d ----, 2011 WL 5223122 (Tex.App.-Dallas) the defendant, who spoke Spanish only, was arrested for DWI. Appellant Leal was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings. Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording. Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording. Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath. Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath. Tell the officer ‘Yes'—.” Officer Gabriel then immediately asked appellant herself, “yes or no.” Appellant nodded yes. Thereafter, the videotape shows appellant providing two breath samples.


On appeal, the court held that the playing of the tape in the manner described did not cause the breath test to become nonconsensual. They wrote:

"Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary. The statutory warnings were on an enlarged form posted on the wall just inches from appellant. Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish. Several times during the four-minute tape, appellant looked at the form as if he were reading it. Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously. Moreover, appellant could see the recording was interrupted. Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample. Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress."

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DWI Law - Texas Safe and Sober Program Nets Driver

I like reading Texas DWI appeals. When I see how badly the defendants in Texas and their Texas defense attorneys get screwed both on trial and on appeal, I somehow cannot help but feel that I have been housed in the nicest building in the concentration camp. The below case is an example of one of those cases that gives me that 'cold, nonfuzzy feeling' described above.

In Alcorta v. Not Reported in S.W.3d, 2011 WL 3672091 (Tex.App.-Hous. (14 Dist.)), the prosecutor failed to tell the defense attorney that the cop was working under a "DWI Safe and Sober" grant. Defense counsel did not learn of the same until the cop testified on direct during the trial. Rather than cross-examining the cop, the defense counsel upon learning that such was the case, immediately issued a subpoena for the records keeper (Mitchell) to appear the next day with the grant documents. It was counsel's intention to re-call the arresting officer once the documents were produced, but the prosecutor released the cop from trial.

The records keeper failed to appear under subpoena the next day. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, according to the appellate court the record did not reflect that appellant ever moved for a continuance. (The appeals court was apparently unwilling to accept the word of defense counsel absent extrinsic proof of the truth of his assertion). The defendant was found guilty thereafter.

Defense Counsel filed a motion for new trial. The trial court admitted into evidence the subpoena directing Mitchell to appear at trial. The subpoena does not reflect what time it was served on July 13, 2010. The trial judge also admitted into evidence documentation relating to the grant program. Trial counsel testified that had he received the documents, he would have laid the predicate for admissibility, recalled Officer Murray and questioned him about the grant program, and questioned Mitchell about how the police department benefits from the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

 The evidentiary hearing on appellant's motion for new trial centered primarily on documentary evidence of the grant program and the subpoena and service thereon in procuring those documents. Appellant's trial counsel testified that although a subpoena was served on Mitchell on the day of trial, the grant program documents were not received until a couple of days following the jury's verdict. According to trial counsel, had he received the documents in time, he would have recalled Officer Murray to question him about the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

*6 The prosecutor testified that Officer Murray had been excused at the end of his trial testimony. The prosecutor stated that Officer Murray would not have been subject to cross-examination of the grant program documents because he had been excused by the trial court with the agreement of both parties. The trial judge clarified that had the officer been subject to recall, she would have considered that as a “heads up” and that she may have allowed the officer to testify again. Neither trial counsel nor the trial judge could remember whether the officer was subject to recall, but they agreed that the record will speak for itself. The trial record reflects that, contrary to the prosecutor's testimony, at the conclusion of his testimony, Officer Murray was excused subject to recall and that the trial court ensured the State had a contact number by which to reach the officer at a later time.

In denying the motion for new trial, the trial judge noted that because appellant's trial counsel did not cross-examine Officer Murray about the grant program, she could not rule on whether the grant documents would have been relevant or admissible without knowing what arguments trial counsel would have made at that time. The trial judge could not remember the off-record discussions at trial relating to the grant program documents. The trial court denied the motion based on the testimony at the evidentiary hearing.

On appeal, the court wrote as follows:

"According to appellant, as raised in both his second and third issues on appeal, the State failed to disclose evidence that Officer Murray was working pursuant to the state-funded DWI grant program at the time of appellant's arrest. Appellant points to the grant program documents, as produced at the hearing on his motion for new trial, as being material and favorable evidence to his defense that was withheld in violation of his due process rights under Brady v. Maryland. See 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). We presume for the sake of argument that the grant program documents in question constitute Brady material. The opportunity to request a continuance once Brady material is disclosed at trial adequately protects due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex.Crim.App.1974). When, as in this case, the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pre-trial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App.1994). When an accused fails to request a continuance, he waives any error resulting from the State's failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 (Tex.Crim.App.1982). The record does not reflect that appellant sought a postponement or moved for continuance upon learning of the grant program,^FN1 which would have allowed him time to address the impact of the evidence and develop any necessary response to it. Appellant did not seek this relief and consequently waived any error. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd)."

FN1. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, the record does not reflect that appellant ever moved for a continuance. Appellant did not address this assertion at the hearing on his motion for new trial.

After the appeals court refused to believe defense counsel's assertion that he requested a continuance (and that it was denied), the court found waiver of the issue on appeal. What is distressing about this part of the appeal is that apparently the neither the prosecutor nor the trial court disagreed with the defense counsel's assertion that he sought a continuance. In fact, there were several off-the-record discussions, as noted by the appellate court. So why was defense counsel's statement that he asked for a continuance completely ignored by the appellate court?

A second ground raised involved playing the video portion of the HGN test.  During the trial the court privately viewed the video and suppressed the results of the HGN, as having been improperly administered. Nevertheless it still allowed the video portion of the tape showing the HGN test to be played in front of the jury to show the defendant was swaying. On this issue the appeals court wrote:

"The trial court excluded the audio portion of the HGN test from evidence because Officer Murray failed to follow proper procedures in administering the test; that ruling is not contested on appeal. See Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). But, appellant's physical behavior during the test is relevant for the purpose of evaluating his physical faculties, and the portion of the video shown during trial without audio was admissible for that purpose. See Miffleton, 777 S.W.2d at 80. Therefore, the trial court did not err in admitting the video-only portion of the HGN test in which appellant allegedly swayed. See id. We overrule appellant's fourth issue."

Concluding, the appellate court affirmed the conviction in this matter.

Editor's note: It is dismaying that an appellate court would not accept as fact that a continuance was requested and denied, when an officer of the court swore as such in his post-trial motions filed with the trial court and in his appellate brief, when such an averrance was not contested by the trial court nor the prosecutor.

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DWI Law - Texas Stop For Improper License Plate OK

In Dudley v. State of Texas, --- S.W.3d ----, 2011 WL 3720899 (Tex.App.-Dallas) the defendant was stopped because he did not have his fron license plate affixed to the front bumper. Rather, it was sitting on the dashboard behind the windshield. He was stopped and arrested for DWI. In Texas, it is illegal to fail to display a license plate on the front and rear of a motor vehicle. On appeal, the defendant cited to a previous case holding that the statute requiring the plate to be affixed to the 'front' of the vehicle was ambiguous as to the specific location. State v. Losoya, 128 S.W.3d 413 (Tex.App.—Austin 2004, pet. ref'd) Here, the appeals court cited to a different case, which had held that the plain language of the statute requires that a license plate be displayed at the foremost part or front of a vehicle, most commonly the front bumper. Spence, 325 S.W.3d at 651. The court of criminal appeals disavowed the reasoning of the Austin court in Losoya, and found that such an interpretation conflicted with the plain meaning of the statute. The court of criminal appeals opined that allowing a license plate to be located in a number of different places would make it difficult to quickly determine whether a given [vehicle] has a license plate or what its numbers are. Choosing to accept the latter appellate decision as the most persuasive, this appeal was ultimately denied.



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DWI Law - Texas Declares Stop of Car Illegal Under Caretaking Exception

Texas gets a second one right in less than one month! In Alford v. State of Texas, --- S.W.3d ----, 2011 WL 3505698 (Tex.App.-Dallas) Wylie police officer Jeff Callan was on bicycle patrol with another officer at approximately 12:45 a.m. when they pulled into a church parking lot to rest. About 100 yards away, Callan saw a vehicle pull up and stop at a dead end street through a very wide alleyway behind a Jack in the Box restaurant, which was open at the time. Callan saw the passenger door open, and the passenger “kind of turned sideways half of their body was out and was leaning over saying something to the driver.” Callan observed the vehicle for “between five to seven minutes.” Callan could hear the passenger and the driver talking but could not hear what they were saying, and “it appeared that they were talking very loudly for us to hear it that far away.” Callan said he was going to “ride over there and see what's going on.” As the officers approached, the passenger got out of the vehicle and changed places with the driver. When Callan reached the vehicle, he saw through the passenger window that the gear shift was in drive and made eye contact with the driver, appellant, who started to drive away. Callan asked appellant if she would “mind putting it in park” and said he wanted to talk to her for a second. Callan asked if everybody was okay and said he noticed they were sitting there for a while. Appellant said they “were just changing positions” and had come from a place where they had watched a friend play in a band. At that point, Callan noticed a strong odor of an alcoholic beverage coming from inside the vehicle and asked appellant how much she had to drink. Appellant said she had “four big beers.” Callan then began a DWI investigation and administered field sobriety tests, which indicated to Callan that appellant was intoxicated. Callan arrested appellant for DWI.

On appeal from the denial of a motion to suppress, the appellate court was asked to review the determination that the stop was proper under the community caretaking doctrine. Discussing Texas' version of the doctrine, the court stated as follows:

"As part of an officer's duty to “serve and protect,” an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Here, the record reflects that Callen was concerned that “there was a disturbance going on or possibly a sick person in the vehicle.” The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Callan was primarily motivated by community caretaking concerns." (citations omitted)

The court then turned to whether, even if the officer was motivated primarily by caretaking concerns, whether such motivation was reasonable. Describing the factors to be employed and applying them to the facts, the court found in favor of the defendant:

"Here, the first factor, the nature and level of the distress exhibited, is almost non-existent. Appellant “kind of turned sideways half of their body was out and was leaning over saying something to the driver,” according to Callan. Callan “didn't know” if there was “a disturbance going on or possibly a sick person in the vehicle.” Callan heard appellant and her sister talking, but he did not testify he heard a dispute or a call for help or any other indication of distress. Appellant got out of the car, walked around it, and got in the driver's seat, but Callan did not testify appellant or her sister exhibited any distress as they changed positions in the car. This factor weighs against the stop. Concerning the second factor, the location of appellant was on a dead-end street where “you don't see a lot of traffic” outside an open Jack in the Box restaurant. In fact, the location was being patrolled by Callan and his fellow officer. This factor weighs against the stop. The third factor also weighs against the stop. Appellant was with her sister and had access to an open restaurant if she had needed assistance. The fourth factor, the extent to which appellant presented a danger to herself or others if not assisted, weighs against the stop. Appellant merely sat in a car talking and walked around the car and took the driver's seat. There is no evidence that appellant exhibited any behavior that would show her to be a danger to herself or others in getting out of her car and walking around it. Applying the Wright factors, we conclude Callan's exercise of his community caretaking function was not reasonable. Accordingly, appellant's interest in being free from arbitrary government interference outweighed Callan's exercise of his community caretaking function. Under these circumstances, the trial court erred in denying appellant's motion to suppress on the basis Callan was acting within his community caretaking function." (citations omitted)

Editor's note: The appellate court got it write (at least the second part about reasonableness of concern).

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DWI Law - Texas Judge Videotape Trial Policy Violates Rights

This opinion comes to DAD thanks to NCDD Regent Troy McKinney, who tells DAD that the trial attorney in the case was NCDD Fellow Gary Trichter. Troy says that "this went on this county (north of Dallas) for over 20 years with no lawyer ever appealing it." This is a case where 26 lawyers filed affidavits regarding the policy in question. Before trial, appellant filed a motion styled “Motion To Play Video For Defense Cross–Examination, Defense Direct Examination, In Closing Arguments [,] In A Motion To Suppress Outside The Presence Of The Jury.” In his motion, appellant stated:

[The trial court] had a long standing policy of not allowing litigants to use a properly admitted DWI video/audio recording for a defendant for purposes of cross examination of the arresting officer in the State's case in chief, for direct examination of defense witnesses in defendant's case in chief, for use before the jury prior to closing argument or to play the same during closing argument. Rather, it is understood that the court will admit the recording and allow the jury to use it only during deliberation.

Appellant then filed a motion to recuse the trial court judge, contending the trial court's routine practice of not allowing defendants to play or use audiotapes and videotapes during the questioning of witnesses constituted bias and denied appellant his federal constitutional rights to due process of law, cross-examination, compulsory process, confrontation, a fair trial, effective assistance of counsel, and his right to present a defense. Appellant further alleged the trial court's policy denied him his rights under the state constitution to put on a defense, to due course of law, to cross-examination, to confrontation, to a fair trial, to compulsory process, and to effective assistance of counsel.

The appellate court ruled as follows:

"We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion. See Billodeau, 277 S.W.3d at 39; Mechler, 153 S.W.3d at 439; Montgomery, 810 S.W.2d at 380. We further conclude the trial court's order deprived appellant of a meaningful opportunity to defend himself, and violated appellant's rights under the Sixth and Fourteenth Amendments to present his defense and confront the witnesses against him. See Holmes, 323 S.W.3d at 173.

Editor's Note: As they say, everything in Texas is 'BIG'. And nothing is bigger than the guts it takes to call out a bad judge or a bad policy. Congrats to all attorneys involved.


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DWI Law - Texas Blood Draw Method Constitutional Says Court

In Pacheco v State of Texas, --- S.W.3d ----, 2011 WL 3211265 (Tex.App.-Fort Worth) the Court of Appeals was asked to review the reasonableness of the defendant's blood draw under the Fourth Amendment. The Texas court summarized its view of the general law in this area as follows:
"A blood draw constitutes a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S.Ct. 1826, 1829 (1966). The “Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. The Supreme Court has set out a two-step test for determining the reasonableness of a blood draw. Id. A blood draw is reasonable under relevant Fourth Amendment standards if:

(1) the police had justification in requiring the suspect to submit to a blood test, and

(2) the police employed reasonable means and reasonable procedures in taking the suspect's blood."
In the instant case the defendant only challenged the means and procedures employed.

Christy Smith, a medical technologist certified by the American Society for Clinical Pathology, drew a sample of Pacheco's blood for testing. Smith testified that she has more than thirty years of experience as a medical technologist and that she has taken thousands of blood samples in that capacity. Smith wrote a reminder on a sticky note after drawing Pacheco's blood that said, “Pacheco, Ernest. 11/12/08. Hispanic male, short,” and “looked like Val,” one of Smith's coworkers. Smith testified that she drew blood only from Pacheco that day and that she followed the same procedure drawing his blood as she followed when drawing samples from all patients. According to Smith, the procedure follows Weatherford Regional Hospital's policies and protocols, and it does not require the technologist to ask for a patient's medical history before drawing blood.

Pacheco argued that Clark and Smith failed to obtain Pacheco's “general medical history” and that “no follow up was done.” Pacheco contended that this failure subjected him to “an unreasonable risk of medical harm that made the blood draw unreasonable under the 4th Amendment of the United States Constitution.” The State argues that the “highly trained, educated, experienced, and certified medical technologist who drew [Pacheco's] blood in a hospital testified that she does not conduct either procedure as part of her normal blood draw routine, but she did follow hospital policy and procedure.... Therefore, neither was medically necessary in this case.”

The court responded to those claims as follows:

"For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual's blood alcohol level. Id.; see also Breithaupt v. Abram, 352 U.S. 432, 435–36, 77 S.Ct. 408, 410 (1957) (explaining that those entering the military, marrying, or going to college must take blood tests and millions voluntarily donate blood so the “blood test procedure has become routine in our everyday life”); Johnston, 336 S.W.3d at 659. Courts may deem blood testing to be unreasonable over another method of testing when “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. But failing to inquire into an individual's medical history before drawing blood and failing to conduct a follow-up examination do “not render blood draws per se unreasonable.” Johnston, 336 S.W.3d at 659. Therefore, the suspect has the burden to show that the type of test employed was “not a reasonable means to obtain a blood alcohol level assessment as to him or her individually.” Id. at 660. The record must contain evidence showing that the police chose a test that was not reasonable due to a “verifiable medical condition,” or we will presume that the choice to administer the test is reasonable. Id.

Here, the record contains no evidence that Pacheco suffers from a medical condition that would have made another means of testing preferable. See id. And Pacheco is not one of “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing,” as Pacheco had already refused to give a breath specimen. See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. Because Smith's failure to ask Pacheco about his medical history and conduct a follow-up examination did not render the draw unreasonable, we conclude that the police chose a reasonable means to obtain a blood alcohol assessment as to Pacheco, individually."

Pacheco then argued that Clark and Smith did not perform the procedure in a reasonable manner because the paperwork documenting the blood draw was incomplete. He contended that the “lack of identifiers places a patient at risk”; that medical procedures concerning the identity of the patient are “critical to preventing, diagnosing[,] and treating a person and can prevent unreasonable risks of medical harm”; and that it “creates unreasonable risks of medical harm.” The State argued that Pacheco failed to demonstrate how some clerical errors in the accompanying paperwork rendered the blood draw constitutionally unreasonable.

To that claim, the court wrote:

"Police officers act reasonably when drawing blood if they act in accordance with accepted medical practices, including the equipment and technique that they employ. Johnston, 336 S.W.3d at 663. The Supreme Court has explained that tolerating searches that were conducted by unqualified personnel or outside a medical environment may “invite an unjustified element of personal risk of infection and pain.” Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836. Searches justified by a valid warrant have a presumption of legality unless the opponent produces evidence rebutting the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). “[T]he reasonableness of the manner in which a DWI suspect's blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw.” Johnston, 336 S.W.3d at 661.

Pacheco's argument that identifiers can prevent unreasonable risks of harm is misplaced because the standard is whether the blood was drawn in accordance with accepted medical practices, and Smith testified that she followed both the hospital's policy for drawing blood and the directives of her certification on how to draw blood. Pacheco argues that the lack of “identifiers” put him at “risk of medical harm,” but he fails to explain how he was at risk. Without more, Pacheco has failed to satisfy his burden to rebut the presumption of reasonableness. The record contains evidence supporting the trial court's conclusion that “the manner in which [Pacheco's] blood was drawn was reasonable.”

In denying the appeal, the court concluded:

"Under the totality of the circumstances, we hold that the equipment and technique Smith employed to draw Pacheco's blood followed medically accepted practices and was therefore reasonable. See Johnston, 336 S.W.3d at 662–63 (holding “Johnston's blood was drawn in accordance with acceptable medical practices and was therefore reasonable.”). The circumstances here did not “invite an unjustified element of personal risk of infection or pain.” See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836."


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DWI Appeal - Texas Retrograde Extrapolation Used to Prove BAC Level Upheld

In Garner v. State of Texas, --- S.W.3d ----, 2011 WL 3278533 (Tex.App.-Dallas) the defendant's appeal dealt mainly with the admission of evidence regrding his alcohol level at the time of driving, using retrograde extrapolation. He complained that the State's expert was unqualified; that the evidence was insufficient to apply the theory; the reliability of retrograde extrapolation; and that the hypothetical evidence was inadmissible because it was not proven top apply specifically to him.
The court of appeals discarded the issue of the reliability of retrograde extrapolation, finding that the alleged error had not been sufficiently preserved for appeal:

"Garner has failed to preserve error for his complaint on appeal as to the reliability of retrograde extrapolation and application of the science by the State's expert. See Stewart v. State, 995 S.W.2d 251, 258 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (concluding appellant had not preserved reliability when only objected on grounds of expert's qualifications). His first statement was “if they're going to qualify him as an expert in blood alcohol, I'd like to take him on voir dire.” The next reference was to “repeat” his request to take the chemist on voir dire. He then requested “a running objection to taking [the expert] on voir dire,” which the trial court denied. At that point, Garner asked for “a 702 hearing then.” To the extent Garner was lodging an objection, his complaint was that the trial court was not permitting him to take the chemist on voir dire, not to the substance of what the voir dire would have revealed."

The court of appeals also found that the defendant failed to adequately preserve the issue of whether the expert was sufficiently qualified to apply retrograde extrapolation:

"When Garner's requests for “voir dire” were not granted, he asked for “a 702 hearing then.” Garner's requests merely referring to “rule 702” are insufficient to give the trial court notice of his objection. See, e.g., Gregory v. State, 56 S.W.3d 164, 182 (Tex.App.—Houston [14th Dist.] 2001, pet. dism'd) (objections based simply on “Rule 702 and Daubert alone” not adequate to inform trial court of specific complaint); Scherl v. State, 7 S.W.3d 650, 651–52 (Tex.App.—Texarkana 1999, pet. ref'd) (objection “under Rule 702, Daubert, Kelly, and Hartman ” insufficient to inform trial court of complaint). The context of Garner's requests does not reveal any additional specificity, nor does Garner's brief on appeal clarify his objection; although his point of error is phrased in terms of qualifications of the chemist, Garner's argument addresses the distinct requirement of reliability of the science of retrograde extrapolation as applied to Garner. To the extent Garner requested “a 702 hearing,” he did not preserve anything for appellate review."

Regarding the use of a hypothetical question, the defense had claimed that the hypothetical was improper because the evidence was never specifically tied to the defendant himself. In overruling this claim of error, the court wrote:

The question drawing Garner's objection occurred during the State's direct examination of the chemist. Specifically, the State asked a hypothetical question: “Let's say we have a male, 5 11, 200 pounds, they're drinking beer or shots, last drink 45 minutes prior, the time of the stop is 2:29, a test was done at 4:36 that showed they had a test result of .12, okay? Now, do you have an opinion to approximately how many drinks would have been in their system at 2:29?” The chemist answered the hypothetical individual would have had between five and eight drinks in his system; five if the man was still absorbing alcohol, and eight if he were already in the elimination phase at 2:29 a.m.

Hypothetical questions are sometimes employed to assist the trier of fact to understand the evidence or to determine a fact in issue. See Taylor v. State, 106 S.W.3d 827, 832–33 (Tex.App.—Dallas 2003, no pet.); see also TEX.R. EVID. 702. Additionally, assumptions on which a hypothetical is based need not be limited to those supported by the evidence; counsel may propound questions that assume facts in accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex.App.—Houston [14th Dist.] 1997, pet. ref'd).

All facts in the chemist's hypothetical here were tied to characteristics of Garner that were introduced into evidence during trial or known to the chemist: Garner's height, weight, the timing of his stop, the timing and results of his blood test, the timing of his last drink, and the type of alcohol consumed. Further, any assumptions in the hypothetical regarding whether all alcohol had been absorbed were appropriate, as the State's theory was that Garner was in the elimination phase. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify regarding this hypothetical situation based on the evidence already before the jury. See Morales v. State, 32 S.W.3d 862, 866 (Tex.Crim.App.2000) (“The reviewing court should, under Rule 702, examine the expert's testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified.”); see also Jordan v. State, 928 S.W.2d 550, 556 (Tex.Crim.App.1996) (standard in applying rule 702 is not whether expert addressed every pertinent issue that could be raised by facts but “whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue”) (emphasis removed).

The conviction was thereafter affirmed.


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DWI Appeal - Texas Says Cell Phone Use Can't Prove Negligent Homicide Case

In Montgomery v. State of texas, --- S.W.3d ----, 2011 WL 2150230 (Tex.App.-Hous. (14 Dist.)) the defendant was convicted of criminally negligent homicide after she made an unsafe lane change while using her cellphone. Her lane change occurred while another vehicle was sppeding behind her. By changing lanes, she was rear-ended and caused to hit another vehicle, which then resulted in the death of a passenger. in reversing the conviction, the court stated:

"In Texas, a person commits the offense of criminally negligent homicide if he or she (1) causes the death of an individual, (2) ought to have been aware that his or her conduct created a substantial and unjustifiable risk of death, and (3) failed to perceive the risk, which is of such a nature and degree that the failure constituted a gross deviation from the standard of care an ordinary person would have exercised under the circumstances. (citations omitted) Accordingly, in order to convict appellant of criminal negligence, the State was required to prove not merely that she did something a person of ordinary prudence would not have done, but that her failure to perceive that a substantial risk of death would result from her conduct grossly deviated from an ordinary standard of care."

In discussing the application of the law to the facts here, the court stated:

"As this court observed in Tello v. State, when courts in Texas have addressed the level of evidence necessary to convict a defendant of criminally negligent homicide resulting from vehicle-related accidents, “speeding, racing, and intoxication often are contributing factors.” (citation omitted) None of these factors is present in the present case."
* * *
At trial in the present case, the State presented evidence of appellant's use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas law: making an unsafe lane change.FN5 However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant's negligence: cell phone usage.FN6 The State analogized using a cell phone while driving to driving while intoxicated, a moving violation subject to substantial criminal penalties. See Tex. Penal Code §§ 49.04, 49.09. However, in doing so, the State could be seen as “legislating through prosecution,” and, by continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. FN7 Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas."

Concluding that the general public lacks knowledge about the dangers of cell phone driving, the court in reversing the convictions stated as follows:

"We do not minimize the fact that Chance Wilcox tragically died in this accident. But Texas law makes clear that the circumstances for assessing criminally negligent homicide are judged from the defendant's perspective at the time of his or her actions, not from hindsight. * * * Supported by additional scientific research and increased public awareness, Texans may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident."

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DWI Appeal of the Day (DAD) - Anonymous Tip Insufficient for Stop of Driver

In Martinez v. State of Texas --- S.W.3d ----, 2011 WL 2555712 (Tex.Crim.App.) the state charged appellant with driving while intoxicated (DWI) and possession of marijuana. The facts were reported as follows:

"At 10:55 p.m., the police dispatcher radioed that an anonymous caller reported that a male driving a blue Ford pickup truck stopped at the intersection of 17th and Main Streets, put two bicycles into the back of the truck, and drove away westbound. Hurley was on patrol in the general area and spotted a green Ford F–250 truck that “looked like it was blue” FN2 approximately three quarters of a mile away from the site of the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver's side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, the truck's driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes."
The trial court denied the motion to suppress. On appeal, the appellate court stated that:

"At a suppression hearing involving an investigatory stop, the state need not establish that a crime occurred prior to the stop, but it must elicit testimony showing sufficient facts to prove that reasonable suspicion existed that a particular person has engaged in, or soon will be engaging in, criminal activity."

When it comes to anonymous tips, this court stated the law applicable as follows:

"When an officer's suspicion of criminal activity arises from an anonymous caller rather than from the officer's own observations, the tip seldom provides reasonable suspicion for an investigatory stop.FN12 The tip lacks “sufficient indicia of reliability,” such as a suitable level of police corroboration,FN13 to establish the “requisite quantum of suspicion.” FN14 An inverse relationship exists between the reliability of the informant and the amount of corroborated information required to justify the police intrusion; the less reliable the tip, the more information is needed .FN15 However, when the informant provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.FN16

The court found the details of the call insufficient to establish both the reasonable suspicion that a crime had occurred, and that the driver was the one involved in the complained-of activity:

"As the record indicates, there was neither a complainant nor a report of stolen bicycles. The anonymous caller did not report contextual factors that reasonably connected the unusual activity to a theft, such as witnessing the suspect use bolt cutters to cut a bike lock or stating that the bikes were taken from someone's garage. More than the officer's opinion that an activity is “suspicious” was needed to relate the activity to a criminal act.FN26

"Finally, Officer Hurley had very little information, corroborated or otherwise, to connect appellant to the unusual activity other than the fact that appellant was driving a Ford pickup truck, similar in color to the described truck, close to the time that the unusual activity occurred, and within three quarters of a mile west of the reported incident.FN27 Even though Officer Hurley was informed that the alleged suspect was male, he testified that he would have pulled over a Ford pickup truck driven by a woman. Before he approached the truck after the stop, Officer Hurley did not see any bicycles in the bed of appellant's truck, nor did he have any other reason to stop the truck. The specific, articulable, corroborated facts known by the officer at the time of the stop were minimal."

Concluding, the court held:

"Based on our review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, we find that Officer Hurley's investigatory detention of appellant was not supported by reasonable suspicion. The court of appeals erred in affirming the trial court's judgments. We reverse the judgments of the court of appeals and remand the causes to that court for further proceedings consistent with this opinion.

Happy Independence Day!



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DWI Appeal - Texas Jury Instruction on Refusals Flawed

In Galinas v. State of Texas, Not Reported in S.W.3d, 2011 WL 2420858 (Tex.App.-El Paso), the defendant was stopped because he allegedly had a red light illuminating his rear license plate (the law requires white) and because he failed to signal while exiting a private driveway onto a public road. With regard to the light above the plate, the videotape of the stop showed that the light above the plate was actually white, as required by law. Trooper Marquez stated that at the time of the traffic stop, he believed Appellant's failure to signal out of the private driveway constituted a traffic violation. It was ultimately determined that the officer incorrectly believed that Texas law required the use of a signal while turning from a private driveway. He also stopped the vehicle because of a red license plate light. After the traffic stop, Marquez noticed that there was also a white light illuminating the license plate. At the time of the stop, he saw only the red light. A white light illuminating a license plate must be visible from at least fifty feet. With regard to the license plate light, he could not tell whether the light was “white”; he could only tell that it was “faint.” The trial court denied the motion to suppress.

In Texas, apparently the jury is also instructed to decide whether a stop was illegal and whether evidence should therefore be suppressed. The defendant on appeal complained that the trial court abused its discretion in failing to give the requested suppression instruction to the jury (which admittedly correctly stated Texas law):



"If you the jury find that Trooper Diego Marquez illegally stopped the defendant on February 16, 2007, or have any reasonable doubt thereof, you are instructed to exclude all evidence obtained by the trooper from and after the illegal stop from—during your deliberations."



Instead, the jury was wrongfully instructed to the opposite:



"...if you find from the evidence that on the occasion in question the Defendant, JAMES HENRY GELINAS, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle's license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever."



The State argued on appeal that, even though the jury instruction was wrong, the arguments of counsel corrected the defect. In rejecting that argument, the court wrote:



"The Hutch majority quickly rejected the contention that legal arguments could cure charge error:



The United States Supreme Court, when faced with the assertion that a prosecutor's argument on a presumption of innocence cures a jury charge deficient in that instruction, wrote ‘arguments of counsel cannot substitute for instructions by the court.’ [Citation deleted]. And, we have similarly noted that ‘jury argument is not a substitute for a proper jury charge.’


Id. at 173–74. The majority then recognized that because the application paragraph was so flawed as to charge the jury on the opposite of what the law actually provides and because the legality of the stop was a hotly contested issue, the error could not be cured by jury arguments. Id. at 174. Because the error vitally affected Hutch's defensive theory, the court reversed and remanded.

The right to a trial by jury in criminal matters is among those fundamental rights guaranteed by our Constitutions. In order to effectuate this valuable right, there is a minimal requirement that the instructions to the jury not be exactly opposite of what the law actually is."



Due to the error, the appeals court reversed and remanded for a new trial.


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DWI Appeal - Texas Felony Murder for DWI Does Not Require Mental State

In Adams v. Texas, --- S.W.3d ----, 2011 WL 2242607 (Tex.App.-Waco) the defendant was convicted of felony murder. Adams was driving on a farm-to-market road when he crossed over the center stripe and struck another vehicle, which resulted in the death of the driver of that vehicle. His blood alcohol content was .33 grams of alcohol per 100 milliliters of blood, which is more than four times the legal limit of .08 grams. Adams stipulated that he had been convicted of driving while intoxicated twice previously.

On appeal, Adams claimed, inter alia, that the felony murder statute violated federal due process because of the lack of a mens rea requirement, that it was improper to convict him of murder based on the lack of a mens rea, that the indictment should have been dismissed because he committed the offense of intoxication manslaughter which cannot be the basis of a felony murder conviction, and that a death resulting from intoxication is not murder but rather intoxication manslaughter.

Rejecting the above, the Texas court stated as follows:

"Adams does not cite any Texas authority showing that the Texas felony murder statute violates the federal constitutional provision regarding due process. Further, the cases he cites fail to show that his conviction for felony murder is unconstitutional on due process grounds because the charged offense lacked an element of culpable criminal intent or mens rea. The Supreme Court “has never articulated a general constitutional doctrine of mens rea ” and we have found no authority that the Supreme Court has ever held a state criminal statute unconstitutional for lack of scienter. Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (“The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.”); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (“We do not go with Blackstone in saying that a ‘vicious will’ is necessary to constitute a crime ... for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”); Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 54 L.Ed. 930 (1910) (“[P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.”); Lomax v. Thaler, No. H–09–0705, 2010 U.S. Dist. LEXIS 87683, 2010 WL 3362203, at 6 *4–5 (S.D.Tex. Aug. 25, 2010) (addressing the same issue).

The absence of scienter does not render a statute invalid if there is some indication of legislative intent, express or implied, to dispense with mens rea as an element of a crime. United States v. Staples, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (citations omitted). In Lomax, the Court of Criminal Appeals noted that, in enacting the Texas felony murder statute, there was “clear legislative intent to plainly dispense with a culpable mental state.” Lomax, 233 S.W.3d at 305 ( citing Aguirre v. State, 22 S.W.3d 463, 472–76 (Tex.Crim.App.1999)). The Court of Criminal Appeals observed that “the plain language of § 19.02(b)(3) also does not exclude felony DWI as an underlying felony for a felony-murder prosecution[.]” Id. at 309. Felony DWI, which does not require proof of a culpable mental state, may serve as the underlying felony in a felony murder prosecution. Id. at 309. The Court has since reaffirmed the ruling that a felony DWI may serve as the underlying offense in a felony murder conviction. See Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App.2008). None of the authority provided by Adams holds that felony murder cannot be charged in this manner or that his conviction is invalid for lack of the requisite mens rea as it relates to this offense. We overrule issues one, two, three, and four."


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DWI Appeal - When the Juror and Witness Know Each Other

In Morris v. State of Texas, --- S.W.3d ----, 2011 WL 2163719 (Tex.App.-Dallas), the defendant appealed the conviction for DWI on the basis that the trial court should have declared a mistrial when it came out during trial that one of the jurors knew one of the witnesses.


During voir dire, no one was asked whether they knew any of the witnesses. After trial began, a witness to the defendants driving revealed that she knew one of the jurors. The witness was called outside the jury's presence and testified that she and one of the jurors had played soccer together for about two years, but had not been in contact for over a year. Morris moved for a mistrial arguing that the juror would likely find the witness credible because of their prior relationship. The trial judge then questioned the juror, who confirmed she had played soccer with the witness for one season about two years before, but they did not have a relationship outside of soccer and they had not spoken since then. The juror said that her prior relationship with the witness would not affect her in deciding the case. The trial court denied the motion for a mistrial.



The decision not to declare a mistrial was affirmed:

"The “mere fact that a juror knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with, one of the parties to a suit, is not sufficient basis for disqualification.” Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App. [Panel Op.] 1982) (quoting Allbright v. Smith, 5 S.W.2d 970 (Tex. Comm'n App.1928, judgm't adopted)). Mere acquaintance with the defendant or a State's witness is not a sufficient basis for disqualification of a juror. See Taylor v. State, 671 S.W.2d 679, 681 (Tex.App.—Dallas 1984, pet. ref'd). The juror's statement that the prior relationship would not affect her decision in the case supports the trial court's ruling. We overrule Morris's first point of error.

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Drug Arrest Reversed Illegal Drug Dog Sniff

In Pfeiffer v. State of Texas, Not Reported in S.W.3d, 2011 WL 1734065 (Tex.App.-Texarkana) the defendant unsuccessfully challenged the validity of his continuing seizure in order to bring a canine unit to the scene following a lawful traffic stop. The facts were described as follows:

On March 22, 2007, on Highway 37 North, about a mile north of Clarksville, Red River County, Texas, State Trooper Matthew Kuhelengel stopped Lavern A. Pfeiffer's truck because the truck did not have mud flaps. Kuhelengel questioned Pfeiffer about his identity, place of residence, and travel destination. The officer twice told Pfeiffer that he was going to give him a warning about the mud flaps, and after checking Pfeiffer's license through dispatch, determined that he had no outstanding warrants. Upon further questioning by Kuhelengel, Pfeiffer admitted that he “got a DWI” thirty years prior. Pfeiffer then denied Kuhelengel's subsequent requests for permission to search the vehicle. Noting that Pfeiffer was “talking a lot,” “very nervous,” and that he had been “arrested a bunch of times,” Kuhelengel requested a canine unit and continued to detain Pfeiffer until it arrived. After the dog showed a positive response on the rear passenger door, a crude pipe was found in the rear floorboard and a bottle of methamphetamine was found in the front console. Pfeiffer was arrested and charged with possession of a controlled substance.
Pfeiffer argued that the warrantless search violated his Fourth Amendment rights because it lacked requisite cause and because he was illegally detained after the traffic stop was completed. The trial court denied Pfeiffer's motion. Pfeiffer pled guilty and received a ten-year probated sentence. On appeal, Pfeiffer argues that “his continued detention by the police was without sufficient cause, rendering the later search of his vehicle invalid.”

On appeal, the court agreed with the defendant and reversed. The court summarized the law on prolonged detention as follows:
"During a routine traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Caraway, 255 S.W .3d at 307. If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex.App.-Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg, J., concurring)). Once the officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that another offense has been or is being committed. Id. at 245."
The appeals court found that during the stop, Pfeiffer was unquestionably very nervous, and he tended to ramble when questioned. However, without more, the facts and circumstances present did not give rise to reasonable suspicion to allow the detention to be prolonged once the purpose for the original stop had been completed.

EDITORS NOTE: Had the drug dog arrived during the time that the initial purpose of the stop was still unfolding, the 'sniff' would have been lawful and the subsequent search upheld. See Illinois v. Caballes. The above case is all about the LENGTH, rather than the SCOPE, of detention.


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DWI Appeal - Texas HGN test medically impossible

In Patton v. State of Texas, Not Reported in S.W.3d, 2011 WL 541481 (Tex.App.-San Antonio), the defendant alleged that the trial court erred in denying his motion to suppress because (1) the officer administering the horizontal gaze nystagmus test (“HGN test”) was not qualified to do so under the Texas Administrative Code, and (2) the HGN test was improperly administered by the officer because the results were “medically impossible.”

First, the defendant contended that Officer Patten was not qualified to administer the HGN or testify to its results because Officer Patten had not been re-certified, under the Texas Administrative Code, to perform field sobriety tests when appellant was stopped. See 37 TEX. ADMIN. CODE § 221.9 (2009) (Tex. Comm'n on Law Enforcement Officer Standards & Educ, Standardized Field Sobriety Testing Practitioner (“SFST”)). The Texas Administrative Code specifies that for an officer to qualify for an SFST certificate, the officer must complete the SFST course offered by the National Highway Traffic Safety Administration's (“NHTSA”) as well as an update course within the past twenty-four months. Id. The court of appeals responded as follows:

"Although appellant is correct in stating that certification is proof an officer is qualified to administer the HGN test and to testify, see id. at 769, a certificate is not the only means by which an officer may be qualified. Ellis v. State, 86 S.W.3d 759, 761 (Tex.App.-Waco 2002, pet. ref'd). If it is shown that the officer has extensive training in administering the HGN test, has been certified through a training course specifically including the administration of the HGN test, and has extensive experience in administering the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the test."

The court then found that the officer was still qualified as an expert even though his SFST certificate had expired.

As for the defendant's argument that the HGN test should be suppressed because the results were “medically impossible,” the court acknowledged that it was required to examine the record to determine if the HGN technique was properly applied on the occasion in question. "While administering the HGN test, the officer must follow the procedures outlined in the DWI detection manual published by the NHTSA." It then summarized the officers testimony as follows:

"Officer Patten explained the NHSTA requires the subject to stand with their feet together and arms to their side. While standing, the subject must track the blue stimulus without moving their head. An officer must pass each eye twice while looking for lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and nystagmus onset prior to forty-five degrees. Each pass with the eye should be two seconds out and then two seconds in and when the stimulus is at forty-five degrees, the stimulus must be held for a minimum of four seconds. While reviewing the videotape of the stop, Officer Patten stated one of the passes looked “kind of short” and that it was maybe three seconds. Officer Patten then stated there are three clues for each eye for a total of six clues. Appellant exhibited three clues in the right eye and one clue in the left eye. Officer Patten reasoned that because appellant had difficulty following the stimulus, he did not mark that appellant exhibited the other two clues."

In rejecting the defendant's argument that the results should have been suppressed, the court stated that:

Many courts have held that slight variations in administration do not affect the reliability or admissibility of the HGN test, but only affect the weight to be given to the testimony. See Plouff v.. State, 192 S.W.3d 213, 221 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (“[I]t would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual's performance of the tests.”); Compton v. State, 120 S.W.3d 375, 379 (Tex.App.-Texarkana 2003, pet. ref'd) (“Any variation in the time taken to appropriately position the eyes would have no effect on the reliability of [the HGN] test and cannot form the basis for excluding the results from the evidence presented at trial.”). Here, Officer Patten may have only held the stimulus for three seconds instead of four, but it was within the trial court's discretion to find that any deviation committed by Officer Patten during administration of the HGN test was slight and did not affect the reliability and admissibility of the results.

Hence, the results of the HGN test were found to be admissible.

NOTE: What is troubling about the opinion in this case is that there is an acknowledgement that the procedures of the HGN test were not followed, and also that the results of 3 clues in one eye and 1 clues in the other is an 'abnormal' finding. Yet, without any medical evidence to support the reliability (and admissibility) of the result, the court brushes off these deviations as somehow slight and de minimus - a finding by them that is unsupported by the record. Just shoot me!


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DWI Appeal - Objecting to Records using HIPPA and Preserving Error

In Maldonado v. State of Texas, --- S.W.3d ----, 2011 WL 924352 (Tex.App.-Dallas), the defendant filed a pretrial motion to suppress the dental records subpoenaed by the State, arguing the State failed to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) On the day he was arrested, according to his dentist Garay who testified at trial, Maldonado had three wisdom teeth extracted and had received twenty milligrams of diazepam and one half milligram of Halcion. He was charged with DWI drugs, involving the diazepam and Halcion. Garay then testified that diazepam is a muscle relaxant and can cause drowsiness and dizziness. Halcion can also cause drowsiness and dizziness. Garay stated the dangers of driving under the influence of diazepam and Halcyon included the driver having vertigo, disoriented vision, and “just not [being] sure what [he is] doing.” According to Garay, both Maldonado and his wife were instructed that Maldonado could not drive a car after taking the medications and was required to have someone available to drive him home. Garay testified Maldonado signed an informed consent indicating he understood these instructions. The informed consent was contained in Maldonado's dental records.

First, the court held that the defendant had waived his challenge on appeal:
When the State offered the dental records into evidence at trial, Maldonado affirmatively stated that he had no objection. When a motion to suppress evidence is denied, the defendant does not need to object at trial to the same evidence in order to preserve error on appeal. Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App.2004); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). However, when a defendant affirmatively states during trial that he has “no objection” to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App.2010), cert. denied, 131 S.Ct. 905 (2011); Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.2005); Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992); Moraguez, 701 S.W.2d at 904.
Second, the court found that even if the challenge was ripe for review, they held that even assuming the records were improperly subpoenaed, Maldonado was not harmed by the admission of the dental records:

"It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App.2004) (“An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003)). Garay testified, without objection, about the drugs Maldonado received at the dental office, the potential effects of those drugs on Maldonado, and that both Maldonado and his wife were instructed that Maldonado should not drive a motor vehicle. Because the dental records were cumulative of Garay's testimony, Maldonado was not harmed by the admission of the records. We overrule Maldonado's two points of error and affirm the trial court's judgment."

NOTE: Apparently, the defense did not seek to exclude the dentist's testimony as 'the fruit of the poisonous tree' involving the unlawful subpoena (but perhaps should have). Thus, the issue involving HIPPA was left to die on the vine. Texas courts seem to have a way of finding waiver, forfeiture, and harmless error in every case where a defendant has possibly been wronged.


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