The hidden danger of a domestic assault charge

You and your wife go out to a party one night and you both a little bit too much too drink.  On the way home you get into an argument over something petty.  However, by the time you get to the house, it's no longer a petty argument.  Voices raise and tempers flare.  Before you know it, you raise your hand and hit your wife.  She calls the police who come to the house, place you in handcuffs and take you downtown.

You're now charged with domestic assault, a Class A misdemeanor in Texas.  At your first court appearance the prosecutor offers you 12 months of deferred adjudication probation with the promise that the charge will be dismissed upon completion.  Do you take it?

Here's what the prosecutor didn't tell you and what an attorney not schooled in domestic assault cases might now know -- per Section 22.01(f)(1) of the Texas Penal Code, a plea of guilty or no contest to a domestic assault charge, in exchange for a grant of deferred adjudication, still counts as a conviction for enhancement purposes.  Should you be charged with a second domestic assault, you will be looking at a third degree felony.

If you've been charged with domestic assault, ask any prospective attorney what kind of experience they have dealing with domestic assault cases.  The failure to do so could be very costly.

What I'm thankful for

Although I frequently rant about miscarriages of justice and the wrongs I see in our criminal justice system, I am thankful to live in a country in which the rights of criminal defendants are spelled out in our constitution. Our system may not be perfect, but it does allow us the opportunity to effect change through vigorous trial and appellate work.

I am thankful to live in a country where I have the freedom to succeed, or fail, on my own.

I am thankful to live in a country where I have access to forums such as this to disseminate information and opinions.

I am thankful for a system that does allow for second chances.

But mostly I'm thankful for my beautiful wife and daughters whom I get to go home and see every night.

Take a moment or two everyday to be thankful for what you have. Happy Thanksgiving.

Significant decisions by the Courts of Appeal, October 2008

An officer need not observe a suspected intoxicated driver actually drive

In a pair of decisions, the First Court of Appeals in Houston and the Sixth Court of Appeals in Texarkana held that a police officer has reasonable suspicion to detain a driver without having seen that driver exhibit any signs of intoxication based solely on another citizen calling 911 to report an intoxicated driver.

In Villareal v. State, 2008 Tex.App.LEXIS 7230 (Tex.App.--Houston [1st] 2008), the Court held a citizen's tip bearing "sufficient indicia of reliability" is enough for an officer to make a stop according to Terry v. Ohio, 392 US 1 (1968).  In Villareal, Officer Coppedge of the Pasadena Police Department relied upon a call from another driver who reported that Ms. Villareal was drifting and swerving.  The other driver identified himself and Ms. Villareal's car and even informed the police that Ms. Villareal had pulled into a parking lot.  Officer Coppedge detained Ms. Villareal in the parking lot and, based on his observations, placed her under arrest for driving while intoxicated.

In Pospisil v. State, 2008 Tex.App.LEXIS 7564 (Tex.App.--Texarkana, 2008), the Court held that a police officer may rely on information received from another citizen provided that information is can be corroborated by other facts within the officer's knowledge.  The Court further held that a citizen's tip holds greater weight when the reporting citizen description provides a detailed description of the act, is gathered from direct observation and when the citizen puts himself in a position to be held accountable (i.e. provides his name, occupation, address, etc.).  The Court went on further to state that because the citizen was a firefighter that his word was entitled to be trusted. 

Beware the statutory warning

In Bergner v. State, 2008 Tex.App.LEXIS 8268 (Tex.App.--Fort Worth, 2008), the Court held that in order to show that one was coerced into providing a breath specimen, the accused must show that his consent was the result of physical or psychological pressure from the police.  Ms. Bergner was arrested for driving while intoxicated and transported to the station to provide a breath specimen.  After the officer read the statutory warning form (DIC-24), Ms. Bergner decided to blow into the breath test machine.  After the officer left the room, Ms. Bergner used her cell phone to call a friend who advised her not to blow.  When the officer returned, Ms. Bergner asked him what would happen if she refused to blow.  The officer told her she would go to jail.

As a result of her testimony that she consented to the breath test before the officer added the threat of jail for refusing to blow, the Court held that the additional threat of jail was not coercive and upheld the conviction.  (Ms. Bergner blew 0.85 and 0.89.)

Interestingly enough, there was nothing in the Court's opinion regarding possible interference with the intoxilyzer caused by the cell phone and nothing about Ms. Bergner having a cell phone on her person while in custody.

A citizen's refusal to perform field sobriety exercises can be considered a sign of intoxication (So much for the 5th Amendment)

In Sanchez v. State, 2008 Tex.App.LEXIS 7976 (Tex.App.--Houston [14th], 2008), the Court upheld a conviction for driving while intoxicated without any bad driving facts, field sobriety tests or breath test result.  Officer Felton, a five-year veteran, stopped Mr. Sanchez for speeding (22 miles over the speed limit).  After approaching Mr. Sanchez, Officer Felton noticed Mr. Sanchez had an odor of alcohol on his breath and had red, glossy eyes.  Mr. Sanchez also admitted to consuming a couple of beers that evening.  Mr. Sanchez refused to perform any field sobriety tests and also refused to blow into the state's breath test machine or sign the statutory warning form (DIC-24).  The officer testified that he believed Mr. Sanchez had lost the normal use of his mental and physical faculties and was driving in a unsafe manner.  He testified that, in his opinion, Mr. Sanchez was intoxicated.

So, despite the fact that Officer Felton did not observe any of the clues of impaired driving as described in the NHTSA training manual, and despite the fact that Officer Felton did not complete the pre-arrest screening as described in the NHTSA training manual, the Court upheld a conviction based solely upon Officer Felton's opinion that Mr. Sanchez was intoxicated.

No fishing expeditions

Although not a DWI case, Pierce v. State, 2008 Tex.App.LEXIS 6627 (Tex.App.--Dallas, 2008) lays out the proposition that a police officer may not prolong a traffic stop any longer than necessary given the reasonable suspicion for the stop.  Mr. Pierce was stopped by police for speeding.  After speaking with Mr. Pierce and his passenger, Officer Spano became convinced they were carrying contraband.  The officer went back to his patrol car and ran criminal checks on them and then asked Mr. Pierce for permission to search his vehicle.  Upon Mr. Pierce's refusal, Officer Spano called for a canine unit.  A search revealed 38 grams of methamphetamine in the car's console.  Pursuant to a plea agreement, Mr. Pierce appealed his conviction following the trial court's denial of his motion to suppress.

The Dallas Court of Appeals held that Officer Spano did not have reasonable suspicion to believe any crime other than a traffic violation had occurred and that the continued detention was a violation of the Fourth Amendment.

Jumping to conclusions, DWI-style

According to the NHTSA training manual used to teach police officers how to administer and interpret standardized field sobriety tests, the decision to arrest a citizen for driving while intoxicated should be based upon a totality of the circumstances.

The NHTSA manual breaks an encounter into three steps or phases.  Phase I is observing the vehicle in motion.  Officers are to look for traffic code violations, equipment violations or unsafe driving.  If he observes any of these then he has reasonable suspicion to stop the driver and moves to the next phase.

Phase II is the initial observation of the driver.  Officers are taught to rely on their senses to determine if there is probable cause to suspect the driver is intoxicated.  Officers look for signs of intoxication: bloodshot or glassy eyes, fumbling for paperwork and trouble maintaining balance. They use their sense of smell to detect the odor of an alcoholic beverage.  The officer listens for slurred or thick speech, for admissions of alcohol consumption or for drivers who have trouble answering questions.  If the officer detects any of these he moves to the final phase.

Phase III is pre-arrest screening.  In Phase III, the officer administers and interprets a series of field sobriety tests, what I prefer to call police coordination exercises.  The officer may also ask the driver to blow into a portable breath test machine.  

Only after all three phases have been completed has the officer gathered enough evidence to make an arrest decision.

But, as those of us who litigate these matters are well aware, the decision to arrest tends to be made upon the smell of an alcoholic beverage and a driver's admission that he has been drinking. How else to explain an arrest when the driver refuses to perform the coordination exercises -- or when the driver performs well on them?

An effective method of attacking a DWI arrest is to challenge the objectivity of the arresting officer -- in other words, to demonstrate that the arresting officer made up his mind to arrest the driver before he had a chance to observe all available clues and signs.

If you've been charged with driving while intoxicated, contact my office.

 

Improper voir dire

A very special thanks to Galveston County criminal defense attorney Gerald Burks and Houston criminal defense attorney Mark Bennett for their research into the so-called "One Witness Rule."

In every case I've taken to trial I've had to sit and listen to the prosecutor get up and recite the so-called "One Witness Rule" to the panel of prospective jurors.  The prosecutor asks the panel if they would require she bring more than one witness to testify at trial and then she tells the panel that if they believe her one witness, that's all she has to do to carry her burden at trial.

Everytime I sit and hear it I cringe because that is NOT the law.  The so-called "One Witness Rule" is a bastardization of Article 38.07 of the Texas Code of Criminal Procedure that deals with uncorroborated testimony of a victim of sexual abuse. That particular provision deals with the sufficiency of the evidence in a sexual assault case.  There is no mention in the code of any other type of case in which this so-called rule applies.  This is a procedural rule that allows the court to determine whether such uncorroborated testimony is sufficient to uphold a conviction.  Such an inquiry is made by the court, not the jury.

Furthermore, this so-called rule is an attempt by the prosecutor to shift the burden of proof in a criminal trial.  By telling the panelists that they must convict if they believe the word of the state's one witness, the prosecutor misstates her burden of proof.  In a criminal case it's not a question of whether the jury believes one witness or not, it's a question of whether or not the state has met its burden to prove its case beyond a reasonable doubt.  A jury may very well believe the testimony of one witness, but whether that testimony proves beyond a reasonable doubt that the citizen accused did the deed may another story altogether.

Questioning the panel about the state's so-called "One Witness Rule" is improper voir dire and should raise an immediate objection. (Better yet, address it in a motion in limine as well.) Should the court grant any challenge for cause by the state over a panelist's refusal to follow the so-called rule, make an immediate objection.  Should the court overrule the objection, object to the panel as seated.

• Read what Mark Bennett has to say about the so-called "One Witness Rule" in his blog Defending People.
  

The end of a season

While there's plenty in the criminal law atmosphere I could write about today, I'm writing about something that's more important to me.  Tomorrow at noon, my daughter's U6 soccer team plays their final game of the season.  And while I am so happy for the kids and the way they've played this year, I'm also sad.

I'm saddend because I will miss getting together with the kids for an hour every Tuesday working on their soccer and teamwork skills.  I will miss helping my daughter get her shinguards and shoes on every Saturday morning.  I will miss outlining practices and putting together lineups.  I will miss throwing my bag of coaching gear in the truck of my car and heading to the soccer field.  I will miss seeing the kids celebrate after a goal -- and after a game.  I will miss chatting with the parents before and after practices and games.

And then, before I know it, September will arrive and, once again, it will be soccer time!

Presidential pardon pool

Since election night I have joked with more than one colleague about starting up a pool on how many presidential pardons George W. Bush grants between now and January 20, 2009.  Here's a story from the Houston Chronicle that could lead to the first two.  A Willacy County (Texas) grand jury has indicted Vice President Dick Cheney and former Attorney General Alberto Gonzales on state charges related to the alleged abuse of prisoners in the Federal Detention Center in Willacy County.

See these additional accounts:

• Reuters
  
• Huffington Post
  
• Dallas Business Journal
  
• KRGV - Channel 5 (Weslaco, Texas)
  

A further update on the intoxilyzer scandal

I have an 80-something year-old client down in Galveston County who rear-ended another driver in the middle of the day and was arrested for suspicion of DWI.  Due to his age (and condition) he was unable to perform field sobriety tests at the scene.  He did, however, blow into the officer's portable breath test machine - his BAC was .18!

At the station my client blew a .13 into the state's breath test machine.  A breath test machine maintained by none other than Dee Wallace.  As a result of Ms. Wallace's filing false maintenance records on the machines under her control, the Galveston County DA offered to reduce the charge to reckless driving.

This was a result we achieved because we weren't afraid to fight the case.  There are plenty of attorneys out there who would've looked at the facts and advised their client to enter a plea.

I have spoken to a source who taught with Ms. Wallace back in the 1990's and was told that Ms. Wallace bragged ten years ago that she had an easy job with the state and that she never performed actual maintenance on the machines because of the time and expense of driving to each of the police stations.

If you've been charged with driving while intoxicated and provided a breath specimen in Galveston County, contact Houston DWI attorney Paul B. Kennedy to find out if the machine used to test your breath sample was one of the machines maintained by Dee Wallace. 

Update on DPS' call for driver's license checkpoints

On Friday, under pressure from state legislators, the DPS withdrew its request for an Attorney General's opinion on the legality of setting up checkpoints to check for valid driver's licenses, registration and insurance. According to the DPS, the checkpoints were never intended to serve as a check for illegal immigrants.

Here's something to chew on

Had a very interesting lunchtime talk (over barbecue) with fellow Houston criminal defense attorney Mark Bennett and South Carolina defense attorney Bobby G. Frederick about differences in the practice of criminal law here and in South Carolina.

The first difference is there is no attorney-led voir dire in South Carolina.  The judge asks the questions and the attorneys are allowed to submit questions but selection is made largely in the dark due to the lack of information.  Bobby posted this article on his blog about jury selection in South Carolina.

The State of South Carolina has a public defender system the provides counsel for indigent citizens accused of felony offenses.  However, if you've been charged with a misdemeanor offense with a maximum sentence of 30 days or less, you're SOL.  The system is funded by the state and the local chief public defender is selected by vote of the county bar.

Judges in South Carolina are selected by the Legislature after a vetting process.  There is no popular election of state judges.

All in all it was a very fascinating look at how another jurisdiction handles matters.  Thanks for the lunch and thanks for the conversation.

What about aggravated perjury?

According to the Texas Penal Code, a person commits perjury if, with the intent to deceive and with knowledge of the statement's meaning, he makes a false statement under oath.  Perjury is a Class A misdemeanor punishable by up to 6 months in the county jail.

A person commits aggravated perjury, however, if the false statement is made during or in connection with an official proceeding and if the false statement is material.  A statement is material if it "could have affected the course or outcome of the official proceeding." Aggravated perjury is a third degree felony punishable by from 2 - 10 years in the state penitentiary.

Per the Texas Breath Alcohol Testing Regulations, the technical supervisor shall provide "expert testimony...concerning all aspects of breath alcohol testing within an assigned area."

In a DWI trial with a breath test, the technical supervisor must take the stand and testify that the machine was working properly on the day the test in question was given.  The technical supervisor must also testify that the machine was maintained properly. This testimony is required to admit a breath test result.  A technical supervisor must also testify as such during a license suspension hearing, but that testimony may be made by affidavit.

As Dee Wallace's testimony was necessary in order to secure convictions based on breath tests, her testimony at those trials was material.  Therefore, not only did Ms. Wallace tamper with government documents, she committed the offense of aggravated perjury, too.

Ms. Wallace's next court appearance is set for December 10, 2008 in the 182nd Judicial District Court.

DPS calls for driver's license checkpoints

Last month I wrote about the DPS' new policy of not renewing or issuing new Texas drivers' licenses to anyone who can't prove they are in the United States legally.

Now, according to the Houston Chronicle, comes word that the DPS has asked Greg Abbott, the Texas Attorney General, for permission to set up drivers' license checkpoints across the state. According to the request, the checkpoints would be set up to check for valid drivers' licenses, registration and insurance.

State Sen. Leticia Van de Putte of San Antonio and 14 other legislators have sent Mr. Abbott a letter asking him to ignore the DPS' request for a legal opinion.

The last time I checked, being in the United States without permission was a federal issue, not a state issue.  There is no provision in the Texas penal code making it a crime to be in this county illegally.  There is also no need for state or local police agencies to enforce federal law.

The DPS has enough to worry about with rogue technical supervisors faking maintenance records on the intoxilyzers used to carry out the state's breath alcohol testing program without worrying about whether a driver is here legally or not not.

Playing with people's lives

It's bad enough that the misdemeanor courts in Harris County hail citizens before them every two-to-three weeks while their cases are pending -- meaning lost time from work and extra money for baby-sitters and parking; due to last week's election, I had a client who had to appear in felony court three times last week for the privilege of resetting a trial to February (after the new judge takes over).

Jury selection was set, originally, the day before the election.  The prosecutor and I spoke and I was informed that all of Monday's trial cases were being rolled to Wednesday -- but that my client still needed to be present.  So we come back to court the day after the election and one floor in particular had more the mood of a funeral home.  My client and I sit and wait.  No one wants to approach the judge...no one knew what he might do.  After an hour he asks the status and we announce that we're trying to work things out but we didn't think they would.  The judge then said he didn't feel like picking a jury that day and told us to come back the next day.

So we make our third appearance of the week on Thursday and are told that something came up and we weren't going to try the case.  The case was then reset to fall on the new judge's docket.

Now I'm paid to be down at the courthouse and even though it meant I had to bring my boxes and display boards and pay extra for parking, it wasn't that big of a deal -- for me.  But for my client, a budding entrepreneur who runs his own chimney sweep company, it was a hassle.  Three days at the courthouse meant three mornings with no paying clients.  It meant keeping potential witnesses in a position where they could come to the courthouse if needed.  It meant the added anxiety of not knowing if "this was the day."

My client may have been charged with a crime, but he hasn't been convicted and for the courts to treat him otherwise is nothing short of wrong.

What is obstruction of a highway?

Recently my colleague, Robert Guest of the Dallas area, posted an article on his Dallas Criminal Defense Lawyer Blog about the mysterious offense of obstructing a highway (OAH).  I've had my own experience with OAH in Galveston County.

Twice in the past year I have represented a client who was stopped for a traffic violation, allegedly performed poorly on field sobriety tests administered at the scene (but not videotaped) and then proceeded to blow sky-high numbers on the Intoxi-liar.

In both instances my clients were young and had never been in trouble with the law before.  In both instances, the only video available was from the station immediately prior to the breath test --- and in neither video did my clients appear two- or three-times the legal limit.

As I worked up both cases I lobbied with the prosecutor to reduce the charge to a lesser offense -- and in both cases I was told it was impossible with such a high test score.  Both prosecutors changed their minds, however, on the eve of trial and offered a reduction to OAH (in one instance my client benefitted from the breath test scandal and the DA actually dismissed the case).

In both cases my clients were all to happy to accept the offer and avoid the stigma of having a DWI conviction on their records.  The lesson to be learned?  In both cases we were prepared to go to trial and show the disconnect between the breath test and the observed behavior on the video.  And in both cases the prosecutor backed down at the pretrial conference.

If you plead to a DWI charge you are guaranteed a conviction; however, should you prepare your case and test the resolve of the prosecutor, good things can happen.  Never be afraid to utter the words "The Defense is ready."  

If you've been charged with DWI, contact my office for an appointment.  I will fight to clear your name and your reputation.

Your state board of education

The most disturbing aspect of this is not that Cynthia Dunbar believed that Barack Obama was a terrorist and would institute martial law, but that she is an elected member of the State Board of Education. I have no joke or pithy comment...I will let it speak for itself.

The case for specific verdicts in DWI cases

In light of the breath test machine scandal involving disgraced former technical supervisor Dee Wallace, the time has come to request specific verdicts on any per se (breath test result of .08 or higher) DWI case.

The general verdict form asks the jury to decide whether or not the citizen accused is guilty of driving while intoxicated.  Although the DWI statute defines intoxication three ways: loss of normal use of mental faculties, loss of normal use of physical faculties and alcohol concentration of .08 or higher - a citizen may be convicted by a non-unanimous decision.  In simpler terms, the jury does not have to be unanimous as to how the citizen was intoxicated, they only have to be unanimous as to whether the citizen was intoxicated.

And this brings us to our problem.  The Texas DPS announced that all breath tests conducted on the machines under Ms. Wallace's watch are now invalid.  Unfortunately, because Texas does not require a specific verdict on a DWI case, it is impossible to know how many guilty verdicts were rendered on the basis of one of those (now invalid) breath tests.  Now it's up to the Court of Affirms to decide that although the tests were invalid, it amounted to harmless error.

With a specific verdict form, however, we could go back and see on what definition the juries relied upon in reaching their decisions.  A specific verdict form would require a jury to reach a unanimous decision as to the method of intoxication, not just the result. This scandal could provide the fuel to make the change.

If you've been arrested for DWI, contact my office today.