San Antonio Defender

VOL. XVII ISS. III | WINTER 2017

DEFENDER SAN ANTONIO

THE WARRIOR

AN INTERVIEW WITH RAYMOND MARTINEZ

NAVIGATING THE COMPLICATIONS OF A FAMILY VIOLENCE CASE ATTACKING OUT-OF-COURT STATEMENTS IN FAMILY VIOLENCE CASES

SACDLA’S DEFENDER OF THE YEAR

SACDLA OFFICERS Patricia Jay

Don Flanary

Trisha Morales Padia

President

Secretary

Interim Editor-in-Chief, DEFENDER

Michael McCrum

Loraine Efron

Jennifer Zarka

Vice President

Treasurer

Executive Director

John Fox

Robin Teague

Adrian Flores

Pat Montgomery

RC Pate

Jodi Soyars

Angela Moore

Roland Garcia

Chad Van Brunt

Arlene Gay

John Hunter

Tiffany Shockley

INTERIM EDITOR-IN-CHIEF Trisha Morales Padia

ASSOCIATE EDITORS

If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email Padia.Trisha@gmail.com.

BOARD OF DIRECTORS Robert Barrera

Justin Fischer

Angela Moore

Philip Bozzo

John Fox

Kristen Mulliner

Deborah Burke

Ray Fuchs

Miguel Najera

Anne Burnham

Roland J. Garcia

Joel Perez

John Carroll

Paul Goeke

Robin Teague

Andrew del Cueto

Juan Carlos Hernandez

Chad Van Brunt

Christine Del Prado

John Hunter

Michael Young

Mario Del Prado

Blakely Mohr

Joseph Esparza

Pat Montgomery

DIRECTORS EMERITUS Charles Butts (Deceased)

Anthony Nicholas (Deceased)

PAST PRESIDENTS Warren Wolf

John “Bud” Ritenour

John A. Convery

Robert Featherston

Adam Kobs

Ernest Acevedo, III

Jorge Aristotelidis

George Taylor

Ronald P. Guyer

Jay Norton

Stephanie Stevens

Mark Stevens

Michael Gross

Jim Greenfeld

George Scharmen

Jeff Mulliner

Michael S. Raign

Cynthia Hujar-Orr

DEFENDER SAN ANTONIO

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LETTER FROM THE EDITOR Trisha Morales Padia

WELCOME NEW SACDLA MEMBERS

THE WARRIOR George A. Taylor

AN INTERVIEW WITH RAYMOND MARTINEZ Warren Wolf

WHAT SACDLA MEMBERS ARE SAYING ABOUT RAYMOND MARTINEZ

The San Antonio Criminal Defense Lawyers Association P.O. Box 831 206, San Antonio, Texas 78283 210.501.2916 | sacdla.com

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NAVIGATING THE COMPLICATIONS OF A FAMILY VIOLENCE CASE Jodi Soyars

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ATTACKING OUT-OFCOURT STATEMENTS IN FAMILY VIOLENCE CASES Patricia Jay & RC Pate

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AFFIDAVIT FOR NON-PROSECUTION

MOTION IN LIMINE CONCERNING OUT-OFCOURT STATEMENTS Patricia Jay

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CASE LAW UPDATE Tiffany Shockley

Letter From the Editor Trisha Morales Padia

I would like to thank everyone in welcoming me as the Interim Editor-in-Chief. I am no stranger to SACDLA and most of you knew me as the Executive Director. I am excited about my new role in the organization and what we can bring everyone with this magazine. Additionally, I would like to give a great thank you to Christopher Simpkins for all his hard work and dedication to this magazine, during his term as Editor-in-Chief.

Moving forward starting with the Winter 2016/2017 issue, the Editors will strive to keep you all engaged, as we hope to bring informative content that will assist more effective lawyers.

If anyone has any questions or comments regarding the issues or would like to submit an article, please feel free to contact me at Padia.Trisha@ gmail.com. I would welcome any feedback from the membership.

CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate and excite our membership. If you would like to contribute, please contact a member of the Defender staff.

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Welcome New SACDLA Members Aardema, Desiree M.

Dutchover, Richard

Martinez, Carlos

Acevedo, Saul

Evans, Nicole S.

Matthew, David S.

Alonso, Christopher L.

Garza, Raul

Matthews, Metyko

Arellano, Robert

Glueck, Andrew

Riordan, Mark

Balli, John A.

Green, Robert A.

Rodriguez, Liza

Barrera, Frank D.

Henricksen, Sean

Saldana, Humberto

Bazan, Juan E.

Hoelscher, Joseph

Simpkins, Scott L.

Copp, Laura

Lamas, Patrick

Tessmer, Heather

Correa, Cassandra A.

Loudermilk, Abby

Timmons, Aaron

Delgado, Ofelia

Major, Abasi

Tschirhart, Larry S.

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THE WARRIOR George A. Taylor

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Are you aware that there is one among us who, after practicing for thirty years, is still trying an amazing number of cases a year?

Are you aware that, when asked, several assistant D.A.s say that when they see this person’s name on a case they just assume it will be a trial? And they know that they are in for a battle with a real professional, an attorney who knows the rules of procedure and evidence and will fight to the end for his client (and often win).

Are you aware that there is one among us who is humble, modest, does not like the spotlight and will probably be upset when he reads this article (if he even does) because it compliments him too much?

Are you aware that our most senior and one of our most respected district judges has nothing but great things to say about this attorney as a trial lawyer and says he never complains about a ruling or a setting and is always ready to go to trial? Are you aware that the same judge said he took a verdict on an Aggravated Sexual Assault/Child case where the DA’s office had stacked one side of the courtroom anticipating a guilty verdict and after he read the two word verdict all that was left in the courtroom sitting there was this heroic lawyer and his client, an elderly grandfather accused of molesting his grandchild?

Do you know that this lawyer took an Aggravated Assault case from another lawyer who was compromised on the case with about only three weeks until a firm trial date and never asked a question and got ready, helping the other lawyer out of a jam?

Brothers and sisters, if you are not aware of all these matters, meet the warrior and winner of the San Antonio Criminal Defense Lawyers Association’s Defender of the Year Award:

Raymond Martinez.

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An Interview with Raymond Martinez

Warren Wolf

I had the honor to sit down and talk with our 2016 Kim Young Defender of the Year. His selection was not a surprise to anyone on the board, but when Ray was notified he was shocked. And that is why the board saw fit to recognize Ray not just for the work he did in 2016 but really as a lifetime achievement recognition for his ongoing, deeprooted desire to help the citizen accused. The following is a brief synopsis of our conversation which took place at his office located at 301 Fair Ave.

really good lawyers who are not good businessmen and some successful lawyers who are better businessmen than they are lawyers…

Warren Wolf: ​Where did you grow up?

WW: ​If not law, what?

Raymond Martinez: Right here in San Antonio, not far from my office.

WW: ​Where did you go to high school?

WW: ​Tell us about your family.

RM: ​We are six brothers and a sister. My father worked with Father Brosnan and the Patrician Movement. He received a Masters in social work from Our Lady of the Lake.

RM: ​Architect – entailed planning, building.

WW: ​Trial work incorporates those skills, right?

RM: ​I became a social worker, practicing law.

RM: ​Central Catholic.

WW: ​Where did you go to college and what did you study?

RM: ​I went to St. Mary’s and studied accounting.

WW: ​How has your accounting background helped you in your law practice?

RM: ​It has helped me more with the business end of the practice. There are some

WW: ​You and your wife are partners in law.

RM: ​My wife, Frances Herrera, we met at the courthouse, married and became partners. She is now retired. ​ We have two children – our daughter works in the office.

WW: ​How has the practice of law changed since you started in the 80’s?

to make a living; worker’s compensation, personal injury, many ways. Now, more scholarly. New spins, new ways of doing things. There is a lot to know. You really have to be prepared. SACDLA list serve is really helpful. It broadens horizons.

WW: ​How have you evolved?

RM: ​Can’t stop learning, the list serve is very helpful. F ​ or instance – where to find experts? Besides list serve, listen in court.

WW: ​What advice would you give a new lawyer?

RM: ​Find a lawyer to emulate. Follow him, watch what he does. Two, learn to know when to stop. Three, don’t lose your cool.

WW: ​Kim Young, Defender of the Year, the award you just received. She was a fighter. She cared about her clients. What does receiving the award mean to you?

RM: ​Overwhelming, humbling, an affirmation, recognition by your peers. I have tried to exhibit courage to stand up for my clients, especially those accused of heinous crimes. To sum it up: ​ “A professional doing my job.”

RM: ​No one wanted court appointments. It was easier

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What SACDLA Members Are Saying About Raymond Martinez “Raymond is such a bad man he should be in the UFC. Congratulations.”

- Mario Del Prado “If there is an award in Bexar County for warrior of the year in criminal defense, I whole-heartedly and without reservation nominate Raymond Martinez. He is a gentleman, a scholar and the criminal defense attorney in this county who has tried the most thankless of cases to verdict successfully (to my knowledge). Like many great men who came before him, Ray loves what he does, works at his craft, maintains his integrity (personal and professional) and he FIGHTS for his clients of typically humble or oppressed backgrounds without reservation and with sincere humility.

Raymond Martinez (on right) with Donald Flanary

I can name many great attorneys in our community and I often turn to them for guidance.

Whether at the U.S. Supreme Court, the U.S. Fifth Circuit Court of Appeals, the Court of Criminal Appeals and the state court of appeals and also in the trial courts, we can be proud of our Association and our brethren. We praise them in our publication, in our e-mails and in person when they valiantly carry the torch that lights the way to freedom. But I think we might want to highlight Raymond in a special way that calls attention to his unique greatness. That is my vote.”

-Demetrio Duarte “I have never, ever, seen Raymond Martinez do anything to draw attention to himself.

But, if you pay attention to him—to this stealthy, extraordinarily well-dressed man—what you see is exceptional craftsmanship and precision, you see a man of few words, but the words he chooses hold sway over all who listen and are like giant clubs, clobbering the State and her witnesses.

Congratulations, Mr. Martinez, I am never surprised to learn of your successes.”

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-Jeff Mulliner

The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283-1206 Telephone: (210) 501-2916 Facsimile: (210) 885-7714

MEMBERSHIP APPLICATION *NAME: Mr. Mrs. Dr. Professor Other _________________________________________________________________________________________ First Name Last Name MI MAILING ADDRESS: _____________________________________________________________________ Street Address/Suite Nbr./PO Box _________________________________________________________________________________________ City State ZIP County TELEPHONE: ___________________________

FAX: _________________________________________

*EMAIL ADDRESS: _______________________________________________________________________ *TEXAS BAR CARD NO.: ________________________ DATE OF BIRTH: _________________________ Certified Criminal Law Specialist? YES NO Member of TCDLA? YES NO NACDL? YES NO Do you want a Membership Certificate? YES NO CATEGORY OF MEMBERSHIP: Contributing ($150 per year)

St. Mary’s Law Student / First Year Lawyer ($30)

St. Mary’s Crim. Law Assn. ($0, Volunteer 5 hours)

Regular ($75 per year)

(Attorneys:) I am a member in good standing of the State Bar of Texas. I am actively engaged in the defense of criminal cases in the State, County or Municipal Courts in Bexar County or the surrounding contiguous Counties, or in the Federal Courts of the Western District of Texas. I do not hold a full time or elected Judicial or Prosecutorial Position. *SIGNATURE: _____________________________________________ DATE: ________________ PLEASE MAIL APPLICATION TO: SACDLA, P.O. Box 831206, San Antonio, Texas 78283-1206 *Required Information (Bar Card No. not required for student membership application) 13

NAVIGATING THE COMPLICATIONS OF A FAMILY VIOLENCE CASE

Jodi Soyars

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Family Violence cases bring with them some peculiar consequences that every criminal defense attorney needs to know. Defending these cases can be time consuming and emotionally exhausting for both you and your client. Clients are often simultaneously tangled up with a divorce, custody, or protective order proceeding while fighting the family violence case and the outcome in the family violence case will often affect the outcome in those other proceedings and vice versa.

“Family Violence” is a term of art defined by Texas Family Code 71.004. Its purpose is to provide certain individuals special protections from physical harm (including bodily injury, assault, sexual assault) and threats of physical harm. The class of individuals protected by “Family Violence” cases has grown over the years and can be found in Texas Family Code 71.0021(b), 71.003, or 71.005. The class is broadly defined and includes not only one’s family, but also past and present dating relationships, and past and present household members.1 The law requires a “Finding of Family Violence” to be entered into the judgment of any case if it is determined that the offense involved family violence.2 1 But see Haynes v. State, 254 S.W.3d 466 (Tex. App. Hous. [1 Dist., 2007]holding that since Tex. Penal Code 21.01(b)(2) does not make reference to Tex. Family Code 71.006 (which defines “Member of a household” to include a person who previously live in a household) therefore a previous member of a household without more could not trigger an affirmative finding of family violence.

2 Tex. Code Crim. Proc. Art. 42.013

Even without an affirmative finding in the judgment, in a prosecution for a subsequent family violence assault, the State may use extrinsic evidence to prove that the previous assault was committed against a family member.3 However, an affirmative finding of family violence in the judgement eliminates the need for extrinsic evidence to enhance a subsequent conviction for family violence.4 The Court of Criminal Appeals in State v. Cagle seems to suggest though that if the judgement uses the word “no” finding of family violence, then under the doctrine of collateral estoppel the issue cannot again be litigated between the same parties in any future lawsuits.5 The collateral consequences of a finding of family violence is really what sets a family violence case apart from other criminal cases. A finding of family violence can be used to enhance subsequent family violence offenses, to prevent visitation with children, it can affect employment, result in deportation, and prohibit possession of a firearm, etc. So deciding on whether to fight a family violence case or just take a plea is a serious decision that should not be taken lightly.

Texas Penal Code 22.01(f) provides that a prior deferred adjudication community supervision sentence, even if successfully 3 State v. Eakins, 71 S.W.3d 443, 445 (Tex.App.-Austin 2002, no pet.); 4 Goodwin v. State, 91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.).

5 See State v. Cagle, 77 S.W.3d 344, 348 (Tex. App. 2002) (discussing when an issue of ultimate fact has already been determined by a valid and final judgment)

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completed, is to be considered a prior conviction for purposes of enhancing subsequent family violence offenses. So taking a deferred adjudication offer on a misdemeanor family violence case will not avoid the impact of a finding of family violence.

PRACTICE TIP: Tex. Pen. Code 22.01(f) did not take effect until September 1, 1999, so if the prior finding of family violence is from a successfully completed deferred adjudication case before September 1, 1999, then the State is ex post facto barred from using it for enhancement purposes.6 Misdemeanor family violence cases tend to be “defense friendly” cases for a trial attorney. This is, in part, because of the extreme collateral consequences that are triggered even upon taking a Deferred Adjudication, and, in part, because the burden of proof in these emotionally charged “he said, she said” type cases makes it harder for the State to prove their case “beyond a reasonable doubt”; couple this with the fact that first time offenders often receive similar punishments upon conviction as they would have upon taking a plea, and the risk of trial can be seen as more justifiable.

However, the same does not necessarily apply in felony family violence cases where the stakes are greater and the jury may be told that the Defendant has committed family violence before. So it’s important to explain the peculiar collateral 6 See Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001).

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consequences to the client before they decide to take a plea or go to trial. Again, cases associated with a “finding of family violence” are subject to many of the same collateral consequences as other criminal offenses; however, here are some specific consequences that set them apart: 1. Custody of Children. Family law courts may not appoint joint managing conservators if there is a history or pattern of family violence, and the court shall consider the commission of family violence when determining whether to deny, restrict, or limit possession of a child by a parent appointed as a possessory conservator. Tex. Fam. Code §153.004. While the Texas Family Code does not prohibit the parent with a finding of family violence from being appointed the sole managing conservator (i.e. primary custodian), it does creates a rebuttable presumption that they should not be so appointed. Texas Code Criminal Procedure 42.23 also requires the criminal court to notify the family law court if the Defendant is convicted or takes deferred adjudication. Practically speaking, if the client is not appointed as the primary custodian, the client will be paying child support, will get less time with the kids, and will have less say in the decisions that affect the children’s day-to-day lives.

Practice Note: If there is a protective order proceeding going on while the family violence case is pending, use the protective order hearing as an opportunity to cross examine the Complainant prior to trial in the family violence case.

2. Firearm Prohibition.7 Federal and Texas law prohibit possession of a firearm upon conviction of a felony or misdemeanor family violence offense. A Defendant who receives deferred adjudication on a family violence case is also probably prohibited from possessing a firearm under Federal Law even if the Defendant successfully completes deferred adjudication.8 Federal law also prohibits possession of a firearm while under a court order that specifically states that possession is prohibited.9 Thus, a Defendant on community supervision is prohibited by federal law from possessing firearms because the conditions of community supervision are considered a court order.

7 These prohibitions may not include convictions for reckless conduct or terroristic threat. See U.S. v.

White, 258 F.3d 374 (5th Cir.—2001).

8 18 U.S.C. 921(a)(20) looks to the law of the jurisdiction in which the proceedings were held to determine what constitutes a conviction and Texas Penal Code 22.01(f) declares that deferred adjudications constitutes a conviction in family violence cases.

9 18 U.S.C. 922(g)(8).

Practice Note: Tex. Code Crim. Proc. Art. 42.12 §20 (governing early termination in probation cases and the court’s authority to release Defendant from all penalties and disabilities resulting from the offense) in conjunction with 18 U.S.C. 921(B) (ii) (which provides that a person shall not be considered to have been convicted . . . if the conviction has been expunged, set aside, or is an offense for which the person has been pardoned or has had civil rights restored) may allow for future possession of firearms by those individuals receiving probation.

3. Deportation. For non-U.S. Citizens, domestic violence and violation of protective order convictions (including deferred adjudications) are deportable offenses. Defendants should be advised to seek a legal opinion from an immigration attorney to determine what (if any) plea bargains may avoid immigration consequences.

4. Maintenance in Divorce. Texas Family Code 8.051 allows a battered spouse to get spousal maintenance, regardless of the length of the marriage, if a spouse has been convicted of or received deferred adjudication for a family violence

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offense committed during the marriage against the other spouse or the other spouse’s child, and the offense occurred within two years before the date on which a divorce was filed or while a divorce is pending. The amount of maintenance can be up to $2,500 per month for no more than three years unless the spouse receiving maintenance has a disability.

5. Future Enhancement. A conviction or deferred adjudication on a family violence offense can be used to enhance subsequent family violence offenses to felonies. See Texas Penal Code §22.01(b)(2).

6. Bail. Texas Code Criminal Procedure Art. 17.152 allows bail to be denied upon the violation of certain court orders or conditions of bond in family violence cases.

7. Criminal History. Texas Government Code §411.0725 appears to legally authorize a court to grant a non-disclosure petition to a Defendant two (2) years after they successfully complete a deferred adjudication in a misdemeanor family violence case, and five (5) years in a felony case. However, the fact that a court can grant it does not mean that they will. Also, a non-disclosure on a family violence case will probably not prevent the government from

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using the non-disclosed family violence case for future enhancement purposes. Most professionals who need a State license to practice their profession should be cautious in taking any plea that exposes them to a finding of family violence because a non-disclosure order does not prevent a state licensing board from seeing it, and the licensing board will likely use the family violence case to revoke or suspend the professional license.

Complainants in these type of cases often try to recant and/or want the State to drop the charges. Complainants in family law cases (as with any other type of case) are free to speak with or not speak with the State and/or defense team. Caution should be taken in these instances to make clear who the defense team represents, and to not “witness tamper.” However, it is our duty to investigate the case, which will necessarily entail reaching out to the Complainant to find out if they wish to prosecute or have any additional information that will help or hurt the case.

PRACTICE TIP: If a Complainant wishes to drop the charges, provide them with a nonprosecution affidavit they can execute to memorialize their desire to have the charges dismissed. If they have additional information that is helpful to your case, this should also be added to the affidavit.

Whether a non-prosecution affidavit will convince the State to drop the charges is

questionable. The State has complete discretion to prosecute the case despite the Complainant’s desire for it to be dismissed.

However, there are several factors that tend to affect the chances of obtaining a dismissal: (1) the cooperating Complainant must personally appear and meet with the State to discuss the case, (2) the Defendant have no prior violent offenses or accusations, (3) the injuries should not be severe or graphic, and (4) there were no 3rd party witnesses, 911 recordings, or other audio/video recordings that the State can use to prove up the offense without calling the Complainant.

PRACTICE TIP: While family violence cases are categorically ineligible for the Bexar County Pretrial Intervention Program, the District Attorney’s office has been known to make exceptions on a case-by-case basis.

A Defendant should consider applying if factors (1), (2), and (3) listed above exist. As part of the application, be sure to include a non-prosecution affidavit as part of your supporting documents.

Emergency Protective Orders. After an arrest for family violence a magistrate may issue a 31-61 day emergency protective order (“EPO”).10 This order may be issued 10 Code of Criminal Procedure Article 17.292.

JUDGE’S NOTES (provided by Honorable Crystal Chandler, Bexar County Court at Law #13): If a Defendant categorically denies that he even touched the victim of an alleged assault, he has engaged in no conduct which needs justifying. He has essentially denied that the alleged criminal act ever took place and the defendant would not be entitled to a Justification (defense of self, others, or property) jury charge.

However, if a defendant claims he doesn’t remember hitting the complainant during a struggle for the phone (for instance) but does acknowledge that there actually was a struggle over the phone, the defendant would most likely receive a Justification jury charge. “[A] defendant need not testify in order to raise the issue of self-defense. Self-defense may be raised by the testimony of other witnesses describing the circumstances of the alleged offense.”13 A Defendant that chooses to testify is still subject to Hearsay objections. So be prepared to lay the predicate for your non-hearsay and hearsay exceptions in response to the State’s objections.

13 Boget v. State, 40 S.W.3d 624 (Tex. App.—San Antonio 2001), aff’d by 74 S.W.3d 23 (Tex. Crim.

App. 2002).

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without any opportunity for an adversarial hearing. When there is an arrest for serious bodily injury, or when a deadly weapon was used or exhibited, an emergency protective order must be issued. An EPO acts as an immediate “kick-out” order and can have a devastating impact on a Defendant who has nowhere else to stay. The magistrate may modify all or any part of an EPO upon notice and hearing if the court finds: (1) the order is unworkable, (2) modifications will not place the victim at greater risk, and/or in any way endanger a protected person under the EPO.11 Texas Code of Criminal Procedure Article 17.292(n) provides that “[on] motion, notice, and hearing, or on agreement of the parties,” an EPO may be transferred to the court assuming jurisdiction over the criminal act giving rise to the EPO and upon transfer, the criminal court may modify to the same extent as the magistrate.

Protective Orders. Protective order hearings are governed by Texas Civil Procedure rules despite their quasi-criminal nature, and the movant’s burden is “by a preponderance of the evidence.”

Therefore, despite the fact that the movant may be represented by the District Attorney’s Office, the civil discovery rules apply NOT the criminal discovery rules. Make sure to review the State’s criminal case file and issue subpoenas if you will need access to evidence in the State’s criminal file for purposes of cross examining the Complainant in the protective order 11 Code of Criminal Procedure Article 17.292(j).

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hearing. Protective order hearings have strict scheduling deadlines. A continuance of no more than 14 days can be granted for no service upon the Defendant or if the Defendant is served late. Be prepared for a continuance to conduct discovery to be denied. 12 Immediate preparation is the key to successfully defending a protective order and that will require subpoenas.

PRACTICE TIP: If your client has a legitimate claim to a protective order against the Complainant, file first! It is a race to the courthouse. The Court cannot grant a continuance to join the cases, so if your client files first, the merits of your client’s claims against the Complainant will be heard first, giving your client a tactical advantage.

PRACTICE TIP: Issue a subpoena deuces tecum for all the police offense reports referencing the Complainant and Defendant ASAP. Witnesses are notorious about claiming they made a police report when they did not and about spinning the facts in a context of a protective order proceeding because most attorneys have not had enough time to prepare. The ability to show the absence of a report could be just as important as the presence of one. Be prepared to also subpoena the officer who took the report.

Your client can be called as a witness by the Movant in a protective order hearing. If the Defendant invokes the 5th Amendment, the 12 Martinez v. Martinez, 52 S.W.3d 429 (Tex. App._Fort Worth 2001, pet. Denied)

protective order court can use the invocation against him/her. Careful consideration should be used to determine if the client should invoke the 5th Amendment.

Since temporary orders hearings will be run concurrently with protective order proceeings in a child custody case, the Defendant can be at a severe disadvantage.

The winner of a temporary orders hearing is often seen has having a huge tactical advantage because the courts will often be hesitant to change the status quo after it is set by the temporary order.

PRACTICE TIP: If you do not have the time to learn the intricacies of the family law side of these cases, consider finding a family law attorney to whom you can refer your clients so that the family law case is not jeopardized. BUT, be sure and attend the protective/temporary orders hearing (if there is one) so that you can see the Complainant and the Defendant testify. This will help you better prepare your defense in the family violence case.

Jodi Soyars

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ATTACKING OUT-OF-COURT STATEMENTS IN FAMILY VIOLENCE CASES Patricia Jay RC Pate

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The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action. This includes the right to be present at the trial as well as the right to cross-examine the prosecution’s witnesses.

The Confrontation Clause found in the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” The Clause was intended to prevent the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that defendant having an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury. The Supreme Court has enunciated the three fundamental purposes that the Confrontation Clause was meant to serve:

• To ensure that witnesses would testify under oath and understand the serious nature of the trial process; • To allow the accused to cross-examine witnesses who testify against him; and • To allow jurors to assess the credibility of a witness by observing that witness’s behavior.

The Supreme Court has noted that the Confrontation Clause is one of several safeguards provided by the Constitution to promote fairness in the criminal justice system through open trials based on challengeable evidence. The Court had left open the possibility that competing interests, such as a jurisdiction’s interest in effective law enforcement, might prevail over the right to confront opposing witnesses.

The admission of hearsay evidence sometimes results in depriving defendants of their right to confront

opposing witnesses. The Supreme Court has recognized a common law exception to the confrontation requirement when a witness was unavailable and, during previous judicial proceedings, had testified against the same defendant and was subject to cross-examination by that defendant. The Court has affirmed this exception in Crawford v. Washington as the only one available for testimonial hearsay. The Sixth Amendment is not concerned with non-testimonial hearsay statements (such as informal statements made to police officers to enable them to respond to an ongoing emergency). Therefore, this issue is left to the hearsay laws of the states.

In light of the foregoing, it is necessary to protect our clients’ rights in regards to out-of-court statements, both under scrutiny for violations of a defendant’s right to confront his accusers and also to address lack of appropriate hearsay exceptions. In family violence cases, the State of

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Texas will frequently argue that the out-of-court statements of a complaining witness are excited utterance, and therefore admissible. It is important to remember that the state has to overcome the burden of the confrontation clause as well as proving a hearsay exception.

In cases where the State has asserted they will be making a proffer of the out-of-court statements by way of other witnesses, such as the arresting officer, it is important to seek a hearing outside of the presence of the jury on the admissibility of these statements.

In our most recent family violence trial, we secured two hearings, after voir dire but prior to opening statements, regarding these issues. In this case, the complainant lived in North Carolina and was not going to be present for trial.

The prosecutors asserted that they would be moving forward by use of the 911 tape and statements made by the complainant to the officer on the night of the arrest.

Upon our request, the Court instructed the State to have the officer present for a

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pre-trial hearing.

An important strategic note is that the State is often going to use the same argument.

They claim that any statements made to an officer are always part of an “ongoing emergency.”

It was important to us, during the cross examination, to point out that the complainant was able to recount facts from earlier in the day, in chronological order, to the officer. This indicated both lack of ongoing emergency and statements of facts remembered, which would negate a hearsay of exceptionof excited utterance. In this particular case, when the officer arrived to the marital home, the complainant was standing outside crying. The complainant had no visible injury. The complainant recounted facts to the officer regarding what had been occurring between herself and the Defendant throughout the course of the day, which included fighting over a phone conversation she overheard where he was talking about other women.

The report in the case

included all of the complainant’s “storytelling”, with the very last statement to the police being the statement of the assault. It is very important to note that the allegation in this case was that the Defendant had grabbed the complainant. The complainant had no visible physical injury and declined medical treatment.

The Excerpts Below are of the State’s Direct Examination of the Officer: A I knew there was family violence inside. I saw her crying, so I knew there was a disturbance going on. I didn’t know exactly at the time, but I knew— I had an idea.

Q And as you arrived at the house, did you know the location of the alleged perpetrator?

A No. Q So what was the first thing you do? You see her crying. What do you do next?

A I got out of my vehicle. I approached her, and I asked her—I introduced myself, and then I asked her what happened,

what’s going on.

Q You asked what happened?

upstairs and she got on the phone. And then he got the phone and he threw it against the wall and broke it.

A Yes, ma’am.

Q What was the purpose of this question?

A Well, because she was crying, obviously, she was upset. And I just asked, how can I help you, and she began to tell me her story.

Q And what was her story?

A She said that—again, she’s crying, and she’s telling me that she overheard her husband on the phone with somebody talking about a past sexual relationship with other people and stuff, and that, you know, she got upset. And when he got off the phone, she confronted him about it, and he became angry.

Q Okay. Did she tell you anything else at this point?

A Yeah. After that, then she told me that—that he was upset, and that she had a drink in her hand.

I don’t know what she was drinking, I don’t remember, but that he slapped it out of her hand. And then she went

Q Now, when she told you all of these statements, when she made all of these statements to you, did you ask her any questions during this conversation up to this point?

A No. I was just letting her speak freely. And after the phone incident, that’s when she told me that he got her by the arms and threw her on the bed.or on the futon.

Q At the point that she said that he grabbed her by the arms and threw her on the futon, had you asked her any questions other than what happened?

A No. Q And this conversation that you just informed the Court about, roughly about how long did it last?

A Maybe two, three minutes.

She was very, very detailed about what had happened.

The state is likely going to emphasize facts similar to these facts in almost every case. They will highlight that the officer is responding to a family violence call and their experience is that these calls can be violent. They will emphasize the emotional state of the complainant and how little the officer did to get the entire story out of them. Their argument will center upon the fact that the officer’s purpose was to ‘figure out was happening at a dangerous scene’ and not to ‘memorialize the complainant’s testimony.’

The state in this case continued to argue that there was an ongoing emergency based upon two (2) factors in the case: the complainant was crying and the “scene” had not been secured.

In this particular case, the officer had outlined the complainant’s statements in his report, and testified accordingly, that the statements made were clear, specific, and reflective, which negated any assertion of excited utterance.

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Excerpts From Cross Examination of the Officer: Q When you arrived at the house, was Ms. Wilder sitting or standing?

A She was standing up. She was in the driveway standing up.

Q And as you were approaching, did she wave to you or flag you down?

A Yes, ma’am.

Q The talking on the phone?

Q Okay. And so before she begins telling her story, were you able to assess at that point whether or not there was some ongoing emergency?

A The talking on the phone, right, that she heard him talking on the phone.

A No. Other than her crying, no.

A She didn’t specify other women. She just said past sexual relationships that he had.

Q There was no ongoing emergency?

Q About other women?

Q She wasn’t running away from the residence?

Q And she was able to tell you facts very specific—

Q Fair enough. And that would have been way at the beginning of any conflict between these two parties that afternoon, right?

That was the beginning of her story?

A No, ma’am.

A Yes, ma’am.

A Right.

Q And did she wait for you to get out of the vehicle and approach her, or did she come up to your vehicle?

Q —about what had led up to this alleged occurrence—

Q Okay. And she continued to remember very specific facts, that she confronted him, correct?

A No, ma’am.

A No.

A Correct.

A Yes, ma’am. Yes, ma’am.

A No. She waited by the garage.

I got out and I approached her.

Q —right?

A Yes, ma’am.

Q And upon getting out of the car, did you hear any yelling or screaming or unusual noises coming from inside the residence?

A I did not.

Q Okay. And you said that she just began to tell her story?

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Q And so specific enough to tell you that they were getting a divorce?

A I don’t remember that part of—in the conversation. I just remember the part about the— what had happened that time.

Q And that he knocked a drink out of her hand?

A Yes, ma’am.

Q And all of these, based upon your perception, are in chronological order of how this event occurs?

A Yes.

Q And so it seemed to you that she had a pretty solid recollection of the facts, at least her version of them?

another officer was present, yes.

A Yes, ma’am, correct.

A She arrived, I believe, right after I made contact with the defendant.

Q And so she wasn’t so distraught that she was unable to relay those to you effectively?

Q Okay. And how soon after you did he arrive?

Q Okay. Inside the house?

A Correct.

A Right.

Q And when she spoke about those things, she spoke about them in past tense, right? This happened earlier today, and then this happened and this happened and this happened?

Q Okay. But you did go into the house alone—

A The way I took it is that it happened, you know, one right after another, and then she called, like it had just happened.

A Yes, ma’am.

Q Okay. And when you arrived and you got out of the car, did there appear to be any medical emergency?

A No. Q And so you said there was no emergency. You didn’t request any backup?

A There is—it is common practice for—on calls like this for two officers to go, if not more. So

A Yes. Q —left Ms. Wilder outside?

Q Okay. And you were able to ascertain very readily no one else was in danger, right?

The State argued in this case that every domestic violence case presents an ongoing emergency. Further, they hinged their argument on the fact that when the officer arrived the complainant was crying and that the Defendant was still inside the home, so the scene was “unsecured”, creating the ongoing emergency.

Excerpts of State’s Argument: The State would argue that the statements made once Deputy Perez first arrives on the scene should be admitted into evidence as nontestimonial. Your Honor, Deputy Perez testified that he received—the call came in—the 9-1-1 call came in 4:36 in the afternoon. He arrived just seven minutes later, at 4:43 in the afternoon. He finds the complainant, Ms. Wilder, sitting out—or excuse me—standing outside crying. He said that all he did was ask his normal preliminary question, what happened, to ascertain what is going on with the situation, and that she tells him in less than two to three minutes what happened at the residence, that she confronted him about talking about his past sexual encounters, that he grabbed her, threw her onto a futon after having knocked a glass out of her hand and broken the telephone in the home, that she’s crying throughout all of the time that she is telling him about what has just occurred, that she is still under the influence of that situation, she is still upset.

At this point, you have Deputy Perez tell you, you know, this is a

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family violence, domestic violence type situation. There’s always a heightened level of concern due to the volatile nature of the dynamics between parties that are involved in these situations, and that he doesn’t know where the defendant is at this time. When he first arrives at the scene, he doesn’t know where he is.

Not until she has told him what happened inside of the home just a few minutes earlier does he ascertain that the defendant is still in the home. So the defendant is unsecure at this point.

So, Your Honor, the State is only seeking to introduce statements made to that officer—to Deputy Perez prior to the defendant being secure, prior to the deputy locating him inside of the home.

Additionally, we argued to the court that even if statements taken in the initial moments of the investigation were nontestimonial, the statements had evolved into testimonial statements before the complainant made any allegation of assault. We also had to address the issues of hearsay, as the state was asserting the statements as not only

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admissible pursuant to an exception to the confrontation clause, but also as an exception to the hearsay rules, by way of alleging excited utterance.

Excerpts of Defense Legal Argument: Judge, I’m going to first address the issue of the testimonial versus nontestimonial statements and the confrontation clause by implications with this.

The Court has been given a bevy of case law, benchmark cases in regards to allowing these statements in, in contravention of the defendant’s right to confrontation.

And so what those cases all lend themselves to is, first, is there an ongoing emergency, and is that a narrow emergency limited to this domestic disturbance, or is there an ongoing emergency that can affect the greater public at large?

We can eliminate that altogether, I believe, based on the officer’s testimony, no concern for the greater public at large. He testifies he gets to the scene.

She’s outside. She’s standing.

She’s crying. She doesn’t run to

his car. She’s not screaming for help. There’s no ongoing assault or crime occurring on view. He speaks to her. She has the time to testify to him about how she heard her husband talking about sleepingwith other women and how she got mad and then he knocked a drink out of her hand, and there was this argument about the phone—oh, and then, by the way, he grabbed me.

That officer testified at the beginning he did not detect any ongoing emergency. And even if we buy the State’s argument that, well, it could still be ongoing because the scene wasn’t secure.

This wasn’t a murder. She called 9-1-1 and said her husband grabbed her. Nobody is going to come and secure the scene. It is my client’s house, and he was in his house, quite rightfully. So to buy their argument, every statement ever made to a police officer in any domestic violence case is going to come in.

We no longer need to concern ourselves with the confrontation clause or hearsay rules apparently.

THE COURT: Ms. Jay— MS. JAY: Yes, Judge.

THE COURT: —sorry to

interrupt. Let me ask you this question. What do you think the overriding purpose of the conversation with the law enforcement officer was?

MS. JAY: I think that officer has worked at this job long enough and is trained well enough that when he gets there, he is fact-gathering for purposes of future prosecution.

THE COURT: Okay. And, State, what is your position on what you believe the overriding purpose of that conversation with law enforcement was?

MS. DALLAM: Your Honor, the State’s belief, based upon his testimony, is that he was trying to ascertain what was going on at that house because of the limited information that is provided via dispatch, and also to ensure his safety, as he stated, and the safety of the complainant, Ms. Holly Wilder. So that’s certainly what the State believes his purpose was in asking that question.

THE COURT: All right. Thank you. Ms. Jay, you may continue.

MS. JAY: Thank you, Judge. In addition, we can talk a lot about Ms. Wilder’s crying in terms of

that indicating an emergency.

My position would be crying does not indicate an emergency.

Plenty of people cry for plenty of reasons every day that are not in crisis or in emergency. I cry when I see the ASPCA commercials.

I’m not in an ongoing emergency at that point. And so, again, we shouldn’t forget Michigan says that nontestimonial statements can evolve into testimonial statements. And so in the alternative, in this tenuous situation where the Court should find that maybe this was nontestimonial in the beginning, what Michigan says is, is that the evolution may occur if enough information is provided to allow the officer to identify there’s no ongoing emergency. We have plenty of opportunities through the course of that conversation. Well, he was talking to his friend about his past relationships and I had to confront him. Then he knocked a drink out of my hand.

Then he threw the phone. None of those things indicate an ongoing emergency.

And then in response to—we still have this problem of hearsay.

And in response to this excited utterance allegation, I would like to—I have a couple of additional cases for the Court.

First, McCormick’s Evidence says there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer.

Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.

Everything in this statement is reflective thought. The officer’s testimony, she was not so upset that she could not remember these things and remember them with very specific detail. She was not so upset that she couldn’t put them in chronological order.

That is reflective thought. I heard my husband talking about past relationships. I confront him.

There’s later argument. He knocks the water out of my hand.

There’s later argument. He breaks the phone. There’s later argument. He grabs me. This is not an excited utterance. Again, the exact opposite of an excited utterance. Excited utterance as defined by our Rules of Evidence is the new version of “res gestae statements.” I think these are spontaneous utterances at or about the offense because of excitement or mental condition. She had the

29

capacity to reflect back to make these very specific statements and to make them in chronological order. So I would put before the Court that these do not qualify as excited utterance.

In this particular case, the Court ruled that the statements began as non testimonial statements, but had evolved into testimonial statements, long before the complaining witness made any allegations of assault. The court further held that the statements did not qualify as an excited utterance.

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Patricia Jay

RC Pate

Practical Tips for Confrontation and Hearsay Issues in Family Violence Cases: 1.

File a motion requesting a hearing outside the presence of the jury;

2.

Advise the Judge prior to voir dire that you are seeking a hearing to examine the out-of-court statements and their admissibility;

3.

Identify why the out-of-court statements in your case are testimonial statements; 4.

Examine the witness, drawing attention to the lack of ongoing emergency, including lack of medical emergency of the complainant;

5.

Focus on the facts at the “scene” which indicate the complainant was calm and able to narrate the allegations. Important here would be that the complainant tells the story in a chronological manner;

6.

Focus on the facts at the scene that indicate there is no ongoing situation that is or would cause a danger to the parties involved or any other members of the public. Focus on the physical location of both the complainant and the defendant if they are already separated. Medical condition of the complainant or actual injury is also important. If you have a complainant with no visible injury, that issue should be repeatedly pointed out to the court;

7.

Be prepared for the State to argue that lack of a “secured” scene, crying of the complainant, and heightened sense of danger at a domestic violence call are indicators of an on- going emergency. Point out to the judge that there is a difference between the officer feeling safe and there being an actual emergency. Every family disturbance would otherwise be classified as an ongoing emergency and the important protections of the sixth amendment would then be eviscerated;

8.

Determine if it is beneficial to your client to argue that non testimonial statements have evolved into testimonial statements.

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CAUSE NO. _______________ STATE OF TEXAS § § COUNTY OF BEXAR §

AFFIDAVIT FOR NON-PROSECUTION KNOW ALL MEN BY THESE PRESENTS

That the undersigned person does hereby make the following Affidavit for NonProsecution in the matter of the State of Texas vs. __________________________ (hereinafter “Defendant”), the latter being charged with assault causing bodily injury (family violence) in the above referenced cause number.

“My name is _______________________ and I am 18 years of age or older. I am the complaining witness against the Defendant in the above referenced case. It is my wish and desire that all charges in relation to these matters be dismissed, that there be no further action taken thereon and I do not intend to pursue the prosecution of said Defendant. I would further express my desire and intention not to appear as a witness against Defendant before the Grand Jury or in any court of law pertaining to this matter and I would request that I not be subpoenaed to do so.

“I am not making this Affidavit to frustrate the ends of justice, nor have I been offered any benefit to testify falsely, to withhold testimony, to elude legal process or absent myself from any official legal proceedings.

“I am making this Affidavit voluntarily, of my own free will, free of any duress or coercion. If the charges against Defendant are dismissed, I will in no way disparage or complain that the Bexar County District Attorney’s office failed to prosecute this case.

“If I am called to testify, I would testify that: __________________________________

“After having an opportunity to reflect on the events of the incident and learning what the Officers’ wrote in their police reports, I noticed that there were facts that were left out or misunderstood which would cause law enforcement to not have an accurate perception of how the events actually unfolded. I do not wish for Defendant to be prosecuted for this incident and I am asking the State of Texas to dismiss the charges.

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the events actually unfolded. I do not wish for Defendant to be prosecuted for this incident and I am asking the State of Texas to dismiss the charges.

WITNESS MY HAND this _____ day of ___________________, 20___.

____________________________________ Signature Printed Name:________________________ Drivers License No. ___________________ STATE OF TEXAS ยง ยง COUNTY OF BEXAR ยง ACKNOWLEDGMENT

BEFORE ME, the undersigned authority, on this day personally appeared __________________, known to me to be the person whose name is subscribed to the above and foregoing instrument, and acknowledged to me that she executed the same for the purposes and considerations therein expressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ___________________, 20___. __________________________________________________

Notary Public in and for the State of Texas

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NO. _______________________________ STATE OF TEXAS

V.

JOHN DOE

§ § § § § § § §

IN THE COUNTY COURT AT LAW NO. 13 BEXAR COUNTY, TEXAS

MOTION IN LIMINE CONCERNING OUT-OF-COURT STATEMENTS AND/OR MOTION TO SUPPRESS OUT OF COURT STATEMENTS OF NON TESTIFYING WITNESS TO THE HONORABLE JUDGE OF SAID COURT:

Now comes JOHN DOE, DEFENDANT, and brings this motion regarding out-of-court statements made by the complaining witness, JANE DOE. Defendant seeks a hearing outside the presence of the jury regarding the admission of these statements, and support thereof shows the following:

1.

The Bexar County District Attorney’s office has stated their intention to introduce out-of-court statements, in contravention of the Defendant’s Sixth Amendment right to confront his accuser and in violation of Texas Rules of Evidence (hearsay). The State of Texas has expressed their intention to introduce these statements as an exception to the confrontation clause, via Crawford v. Washington, 541 U.S. 36; Michigan v. Bryant, 131 S.Ct.1143 (2011) and as an excited utterance hearsay exception. The State must overcome both burdens.

2. The Defendant, pursuant to the Confrontation Clause of the United States Constitution; Constitution of the State of Texas, and Texas statute has a right to confront his accusers.

3. The Defendant pursuant to the Texas Rules of Evidence, has a right to have hear say testimony excluded without a valid hearsay exception.

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I. THE ONGOING EMERGENCY EXCEPTION DOES NOT APPLY TO THE FACTS OF THIS CASE.

The ongoing emergency exception carved out in Crawford and Michigan provides, “when the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial, and therefore, statements made in the course of such interrogation are nontestimonial and not within the confrontation clause”. These issues were evaluated in two beacon cases: Washington v. Davis, 547 U.S. 813 and Hammon v. Indiana, 165 L.Ed.2d 224. Davis and Hammon were both domestic violence cases. In Davis, the issue was a 911 call made by the complaining witness during an attack. The complaining witness made statements of present tense during the attack on the 911 tape, and responded to questions during the call. These statements were later ruled as non testimonial.

In Hammon, the police responded to a domestic disturbance call and found the complaining witness sitting on the front porch. After being given consent to enter the house, the police talked to the complainant about the occurrence. The Supreme Court held that the statements in Hammon were testimonial and subject to the confrontation clause.

The Court in Michigan carved out an exception to the “ongoing emergency,” in an effort to determine if an ongoing emergency extends beyond the initial victim to a potential threat to the public at large. The Court went on to hold that whether or not there still exists an ongoing emergency requires an objective, context dependent, evaluation of the facts. Domestic violence cases have a narrower zone of potential victims than cases involving threats to public safety. Id. at 1158. Facts that are considered in this context dependent, objective evaluation are: (1) type of weapon used; (2) medical emergencies (not merely some injury); (3) examination of the statements of all participants to ascertain the primary purpose of the statements; (4) the existence of an emergency or perception by the parties of an ongoing emergency. Id.

The facts, in the instant case, are:

1. The police were dispatched to a private residence for a domestic disturbance; 2. The police arrived at the listed location and found the complainant outside of the residence waiting for police; 3. The complainant was able to recount past events to the police in her contact with the police;

35

4. No weapon was involved; 5. Complainant gave a lengthy statement to police including facts remembered and in past tense; 6. There was no medical emergency; 7. Complainant had no apparent physical injury and did not report any physical injury; 8. Complainant did not express any ongoing emergency.

II. THERE IS NO PRESENT HEARSAY EXCEPTION

In order to meet the hearsay exception of excited utterance, there must be an event so startling to render inoperative, the normal reflective thought process of the observer. The statement of the declarant must have been a spontaneous reaction to the occurrence and not a reflective thought. In the instant case, all statements made by the declarant are reflective thought. The Declarant made statements of fact remembered in recounting events to the police.

III. REGARDING STATEMENTS OF A NON TESTIFYING WITNESS

In accordance with the Confrontation Clause of the sixth amendment of the United States Constitution, the State should be prohibited from putting into evidence, before the jury, any out-of-court testimonial statements of a witness who does not appear at trial, until a hearing has been held outside the presence of the jury.

WHEREFORE Defendant prays that this Honorable Court will Order and instruct the Attorney for the State of Texas, its representatives and witnesses in accordance with the foregoing until a hearing has been held outside the presence of the jury, so the Court can the admissibility of the statements based upon the foregoing relevant factors regarding the Defendant’s right to confront his accusers.

36

WHEREFORE Defendant prays that this Honorable Court will Order and instruct the Attorney for the State of Texas, its representatives, and witnesses in accordance with the foregoing until a hearing has been held outside the presence of the jury, so the court can determine the admissibility of the statements based upon the foregoing relevant factors regarding whether or not the statements are heasary in accordance with The Texas Rules of Evidence.

WHEREFORE Defendant prays for general relief and all other relief that the court deems equitable, within the law, and within the interests of justice.

LAW OFFICE OF PATRICIA A JAY 625 N. Alamo SAN ANTONIO, TX 78215 Tel: (210) 223-7100 Fax: (210) 223-7102

By: Patricia Jay State Bar No. 24042451 pj@pjaylaw.com Attorney for Defendant

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CASE LAW UPDATE Tiffany Shockley

SUPREME COURT OF THE UNITED STATES LUIS V. UNITED STATES, 136 S.Ct. 1083 (March 30, 2016): The government improperly froze the defendant’s assets where the assets had no connection to the charged crimes and depriving the defendant of the untainted assets undermined the defendant’s right to the assistance of counsel.

WELCH V. UNITED STATES, 136 S.Ct. 1257 (April 18, 2016): Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act

38

was void for vagueness, was a substantive decision that applied retroactively to defendant’s case.

MOLINA-MARTINEZ V. UNITED STATES, 136 S.Ct. 1338 (April 20, 2016): When a defendant shows that the court mistakenly applied a higher sentencing range, his/her substantial rights are affected and no additional showing of prejudice is required to obtain relief.

FIFTH CIRCUIT COURT OF APPEALS UNITED STATES V. SCRIBNER, 832 F.3d 252 (Aug. 1, 2016):

The district court erred in denying the petitioner’s 28 U.S.C.S. § 2255 application because it rejected the magistrate judge’s credibility findings, which were made after an evidentiary hearing, in holding petitioner was not prejudiced by counsel’s ineffective assistance without holding its own evidentiary hearing.

UNITED STATES V. TOUSSAINT, No. 15-30748 (Sep. 22, 2016): Government agents heard (by wiretap) a suspected member of a drug trafficking organization order a “hit” on defendant. The agents located the defendant and pulled his vehicle over about 45

minutes after the threat was communicated. The suppression order was reversed because an objectively reasonable basis for believing the emergency had not ended existed and it was reasonable for officers to meet to discuss how to locate defendant and pace hisvehicle before pulling him over.

COURT OF CRIMINAL APPEALS IN RE SOLIS-GONZALEZ, 489 S.W.3d 459 (May 4, 2016): In the absence of agreement by the State and the defendant, the trial court has discretion, under Tex. Code Crim. Proc. art. 38.43, to determine when all necessary biological evidence has been tested.

COLE V. STATE, 490 S.W.3d 918 (May 25, 2016): The Court concluded that exigent circumstances that would have undermined the efficacy of searching defendant’s blood (namely the need to investigate the accident scene and the un-

availability of another officer to secure a warrant) existed that justified the warrantless blood draw.

WEEMS V. STATE, PD-063514 (May 25, 2016): There were no exigent circumstances that justified a warrantless blood draw where the officer’s testimony suggested that the delay in drawing blood at the hospital was foreseeable and the record contained no discussion of the department’s warrant procedures when a suspect is taken to a hospital and how long it may have taken to obtain a warrant.

JOHNSON V. STATE, 490 S.W.3d 895 (May 25, 2016): The trial court abused its discretion by not allowing the defendant to cross-examine the complainant regarding his sexual abuse of his sister because such evidence supported the defense theory that the complainant had a motive to falsely accuse the defendant of molestation.

MOORE V. STATE, PD-163414 (Oct. 19, 2016):

State did not present a reason beyond its control for failing to proceed against Moore (a juvenile) before his 18th birthday so the juvenile court erred in transferring the case.

COURT OF APPEALS FLORES V. STATE, 04-1500704-CR (Sep. 7, 2016): The State agreed to severance of Count I of the indictment on the day of trial and proceeded on Counts II and III. Even though the State did not provide notice of its intent to introduce Count I evidence at the punishment phase of the trial, the purpose of Article 37.07 §3(g) was not frustrated because the State had already provided notice (before severance) of the intent to introduce the evidence in its case-in-chief.

RAMIREZ-TAMAYO V. STATE, 07-15-00419-CR (Oct. 5, 2016): Aside from the deputy simply invoking his “knowledge, training, and experience”, the State did little to illustrate what it consisted of or how it was garnered and how this

39

“knowledge, training, and experience” led the deputy to believe the defendant’s seemingly innocent behavior was somehow connected to crime. The trial court erred in denying the motion to suppress.

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CARMICHAEL V. STATE, 04-15-00572-CR (Oct. 19, 2016): Defendant was convicted of the continuous sexual abuse and aggravated sexual assault of the same complainant.

Double jeopardy was violated where the event giving rise to the aggravated sexual assault occurred during the time period of the continuous sexual abuse and led to the defendant being punished twice for the same conduct.

About the Author: Tiffany Shockley currently serves as an Assistant Editor for the Defender magazine and is employed as an associate attorney at Gross & Esparza, PLLC.

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