San Antonio Defender

DEFENDER VOL. XXI ISS. 2 | MAY 2019

SA N A N TON IO

DEFENDER 2019.04.indd 1

IN MEMORIAM: PHIL BOZZO

LET’S SMOKE ‘EM: TURN A LOSER POT CASE INTO A WIN

THE IH-10 LAWYER

5/15/2019 9:08:56 AM

SACDLA OFFICERS Loraine Efron

John Hunter

Jennifer A. Zarka

President

Secretary

Executive Director

Joseph Esparza

Roland Garcia

Matthew Allen

Vice President

Treasurer

Editor-in-Chief, DEFENDER

Michael Gross Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor Stephanie Stevens Jim Greenfeld

Michael S. Raign John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

Ray Fuch Arlene Gay Amanda Hernandez Juan Carlos Hernandez Dayna Jones Guillermo Lara Pat Montgomery Angela Moore Miguel Najera Trisha Padia

Joel Perez Molly Roth Shawn Sareen Robin Teague Sharon Thorn Chad Van Brunt Meenu Walters Robbie Ward Michael Young Hallie Godsey

Anthony Nicholas (Deceased)

Jim Greenfield (Deceased) Philip Bozzo, Jr. (Deceased)

PAST PRESIDENTS Don Flanary Michael McCrum Patricia Jay Warren Wolf Robert Featherston Jorge Aristotelidis Jay Norton

BOARD OF DIRECTORS Matthew Allen Mac Bozza Anne Burnham Jonathan Chavez Karen Corby Cornelius Cox Adam Crawshaw Andrew DelCueto John Fox Andrew Froelich

DIRECTORS EMERITUS Charles Butts (Deceased) Anthony Nicholas (Deceased)

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.

DEFENDER 2019.04.indd 2

5/15/2019 9:08:56 AM

DEFENDER SAN ANTONIO

04 06

LETTER FROM THE EDITOR Matthew Allen

10

LET’S SMOKE ‘EM: TURNING A LOSER POT CASE INTO A WIN Megan Roper

IN MEMORIAM: PHIL BOZZO

16

THE IH-10 LAWYER Sean R. Simpson

EDITOR-IN-CHIEF, DEFENDER Matthew Allen

ASSOCIATE EDITORS, DEFENDER Steven Gilmore Dayna Jones

Angela Moore Tara Richardson Jodi Soyars

Robin Teague Jennifer Zarka

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

DEFENDER 2019.04.indd 3

5/15/2019 9:08:56 AM

Letter From the Editor Matthew Allen

I did not write a letter in the last issue as it was, rightly, dedicated to Honorable Pat Priest.

When getting this second issue ready for publication, I wanted to give acknowledgment and credit to our prior editor, Trisha Morales Padia. She consistently produced great issues of The Defender. Trisha has been a tremendous help to me as I take over as editor. On behalf of SACDLA,

thank you Trisha.

I look forward to serving SACDLA in this capacity and welcome any suggestions for issues or articles.

This magazine belongs to our strong membership and I will strive to continue to produce great magazines like Trisha and the editors before her.

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.

4

DEFENDER 2019.04.indd 4

5/15/2019 9:08:57 AM

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)

DEFENDER 2019.04.indd 5

5/15/2019 9:08:57 AM

IN MEMORIAM

Phil Bozzo Matthew Allen

P

hil needed, or more accurately indulged, my need to sit second chair with him on a murder trial. I quickly read the discovery and thought to myself, this is not a good case for us.

But as I watched Phil continue to work and explore every avenue, I became more and more impressed with a man I had already heard so many great things about. Phil seemed to know more about the people involved in the case than they knew about themselves. The prosecution and client kept going back and forth about plea negotiations but Phil

never got angry or impatient; he counselled his client with the type of patience and care that you would want your child to be counselled. Eventually we took a plea. Afterwards, Phil invited me to enjoy a cigar with himself and some friends. No one would describe me with an outgoing personality but Phil had a way of making me feel like we’d been friends for 10 years. I’ll miss seeing my new old friend around the courthouse.

6

DEFENDER 2019.04.indd 6

5/15/2019 9:08:57 AM

Gerry Goldstein

B

rother Phil Bozzo never failed to light up every room he entered. Regardless the occasion, whether a contested courtroom battle or a social event in your backyard, every recollection I have of Phillip over the years brings a smile

to my face and to everyone he encountered. His approach to the law and to life should serve as a bright example for us all. RIP Phillip Bozzo!

John Hunter

P

hil was the kind of man whose honesty and integrity was evident all the way down to his eyes and in his facial expressions. He was so kind and generous with his time and his knowledge. It will haunt me eternally that I only got to know him well during the last two years of his life.

He was such a deep well of fascinating personal stories. We as an organization owe Phil a tremendous debt of gratitude. He worked and fought hard to get SACDLA a dedicated room at the courthouse, which has made daily practice in Bexar County so much more pleasant and less stressful.

Virginia Maurer

W

onderful, kind and decent man. He will

be very much missed. Rest in Peace Phil.

Megan Roper

P

hil was one of the first lawyers I met when I started practicing in Bexar County. As a baby lawyer who knew NOTHING, he was a breath of fresh air. Kind and helpful, he made those first few scary months so much better for me. I’m

so saddened by his loss. He will be deeply missed.

7

DEFENDER 2019.04.indd 7

5/15/2019 9:08:57 AM

George Scharmen

P

hil was a good friend of mine. Our kids were friends in school. He had a great sense of humor, and he was a pleasure to talk to about anything—even the law. I will miss seeing him.

Losing two great friends like Larry Souza and Phil Bozzo in such a short period of time makes me sad, but I will always remember and celebrate their friendship.

Robin Teague

P

hil Bozzo and I have a lot in common. We both were baseball players in high school.

Both of us went to the University of Texas. (“The University,” as I knew it growing up, since I lived in the shadow of the Tower.) Both us worked for the Texas Legislature in the spring of 1971. I was the clerk for the House Congressional and Legislative Districts Committee. Phil was an aide to then Senator Ben Bynum. We both had offices in the basement of the Capitol building. We don’t remember seeing each other then, but without doubt we did-we both remember going to the headquarters/offices of the Texas Trial Lawyers Association in the Westgate Building across the street from the Capitol grounds, and schmoozing and eating and drinking at the expense of TTLA lobbyists.

We both graduated from UT. Phil took a little longer than I did. Neither of us were there for just the usual 4 years.

We both went to law school. We both practiced as criminal defense lawyers. Phil started out that way, even before he graduated. I saw the light much later in my career.

Somewhere along the line we actually got together, again. We both had offices at Bob Price’s and

Cheryl Wilson’s office building on S. Presa St., and that is where we most likely met.

We were pretty close up until the time Phil passed.

We worked on some cases together. Phil asked for my help since I had more experience in personal injury cases than he did. He referred the notorious Haag case to me. Some of you might remember something about that case. I picked a jury in that case, which involved a family feud between Haag and his brothers, who accused him of stealing gold coins from their mother right after their father died. The morning after picking the jury, as I was in the courtroom, preparing for the opening statements, Haag’s wife came in, rushed up to me, and told me, “Something terrible has happened! Mark has just been arrested at courthouse security. They found a loaded handgun in his brief case.” Geez. I replied, “I will call Phil.” And I did. And Phil spent the rest of the day trying to find Haag, first in the courthouse, then in the magistrate’s office, and trying to help me manage the situation, which led to an aborted jury trial, and a long, stressful day for both of us.

Then Phil asked me to represent him in the Otero case. Not a malpractice case. It was filed in the downtown JP court. I remember it well,

8

DEFENDER 2019.04.indd 8

5/15/2019 9:08:57 AM

primarily because of jury selection. I had recently attended some CLE programs. One of the presenters was Bobby Hirschhorn. As you know, he presented on voir dire. One of the topics he covered was “looping.” That voir dire was a real treat since voir dire in JP court is pretty unstructured. So I got to practice “looping.” And then got to talk with Phil about that technique. We were both so excited that we celebrated at Blue Star Brewing. Phil bought the beer!

Our social hours became legendary. We used to go to La Tuna. Tried out Blue Star Brewing a few

times. Got connected to owner Joey Villarreal.

And became quite interested in keeping him in business. One of our great success stories. I guess we were regulars for ten years or so. Phil was the social chairman, and had all the cell numbers.

Other players would come and go, but stalwarts include Mike Casey, Andy Laird and Mike Gross.

Two days before the heart attack, Mike Casey, Andy Laird, James Jennings and I had beers with Phil at Blue Star. When I last saw him, as I drove away, he was regaling Andy with beer and a big cigar in his hands. I still have that picture in my mind.

David Wheeler

P

hil loved baseball. He was a huge Yankees fan. We had a really great day one Saturday several years ago; Eating and drinking with

our families and smoking cigars in his back yard.

Then going to watch his son play. I will miss him very much.

Phil Bozzo with sons Phil Jr. and Alejandro

9

DEFENDER 2019.04.indd 9

5/15/2019 9:08:57 AM

Let’s Smoke ‘Em: How to take a loser pot case and turn it into a win!

Megan Roper

F

irst off, you may be asking yourself, “why am I trying a loser pot case?” As someone who almost exclusively handles cannabis related cases, I can tell you, for most regular cannabis users, probation is a TRAP. Many people use cannabis to treat a medical condition, while for others it is a life-style choice. Regardless, these individuals will struggle to pass one drug test, let alone six to twelve months of random tests. Having to work to fit the best needs of our clients has made me more creative, and I hope that by sharing this creativity, you will also be willing to set these prosecutor-proclaimed slam dunks for jury trial. I have designed this article to be a mixed bag of tricks to help a practitioner handle the “open and shut” possession of marijuana or THC case. I have chosen three examples of tools we have used with success in these types of cases.

Before we begin, I would like to address some cannabis terminology that you will see throughout this article. Cannabis is addressed in Texas criminal laws in two different ways. The first is marijuana [or marihuana as it is incorrectly spelled] in the Texas Health and Safety Code 481.002 (26).1 1 “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or (E) the sterilized seeds of the plant that are incapable of beginning germination.

10

DEFENDER 2019.04.indd 10

5/15/2019 9:08:58 AM

This code section refers to the flower/plant material that most people associate with marijuana.

When you see pictures of a “nug” or a “bud,” these are the flowers of the cannabis plant, and you will often hear it referred to generally as “flower” within the cannabis industry. Probably the most talked about component of the cannabis plant is tetrahydrocannabinol (THC). THC is one of hundreds of compounds found in the cannabis plant, but it is the one most commonly associated with “getting high.” The second time we find the criminalization of cannabis under Texas law is later in the Texas Health and Safety Code, identified as a penalty group 2 substance under 481.002 (26).2 This code refers to any cannabis product other than the flower itself, or “tetrahydrocannabinols other than marihuana.” This can include “THC oil,” which is simply a condensed version of the active compounds found within the cannabis flowers. This oil is vernacularly referred to as wax, dabs, shatter, hash, and many other slang terms.3 This category under the law would also include any edibles (i.e., gummy bears, brownies, or chocolates), creams, tinctures, or tablets that contain THC. Despite their disparate treatment under Texas law, functionally these products are all the same; they are all cannabis. To be clear in this article, I will refer 2 Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as: delta-1 cis or trans tetrahydrocannabinol, and their optical isomers; delta-6 cis or trans tetrahydrocannabinol, and their optical isomers; delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized 3 If you see a picture, it will often look like a blob of honey, wax, or a piece of colored glass.

to flower and cannabis products other than flower or cannabis concentrates.

What kind are you smoking?—The Low-THC Cannabis Jury Instruction In 2015 the Texas legislature passed the Texas Compassionate Use Program (TCUP),4 which allows for the use of cannabis products under very narrow parameters. For all functional purposes this “medical marijuana” legislation is hollow. Exceptionally few people actually benefit under the law. Within that legislation however, there are some nuggets that can be used in the defense of your clients, regardless of whether or not they are participants under TCUP. As many of you probably already know, there is little involvement from a laboratory when it comes to cannabis flower cases. Unlike other controlled substance cases, Texas law does not require a formal lab test for flower cases.5 This creates an interesting issue, because TCUP carved out an exception to the “marihuana” definition for low-THC cannabis: (3) “Low-THC cannabis” means the plant Cannabis sativa L., and any part of that plant or any compound, manufacture, salt, derivative, mixture, preparation, resin, or oil of that plant that contains:

4 See Chap. 169 of the Texas Occupations Code 5 Though while not the topic of this article, this bit of Texas law is ripe for challenge in my humble opinion. With the proliferation of various cannabis products, as well as other drugs, designed to look like cannabis plant material (i.e., “synthetic marijuana”), I believe there is a legitimate argument that an officer cannot reliably identify cannabis, and therefore, these cases should require the laboratory testing that we require of other controlled substance cases.

6 Texas Occupations Code 169.001 (3)

11

DEFENDER 2019.04.indd 11

5/15/2019 9:08:58 AM

(A) not more than 0.5 percent by weight of tetrahydrocannabinols; and

to be prevented by the law proscribing the conduct; and

(B) not less than 10 percent by weight of cannabidinol.6

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

We ask for this language to be included in our jury charge as part of the “marihuana” definition. We ask for the charge to State that marihuana is not low-THC cannabis, and then track the statutory definition of low-cannabis described above. We have had great success with this technique. When the State presents no evidence of the CBD vs. THC content of the flower, itmakes for a very compelling jury argument that the State has failed to meet their burden.7 I NEED to smoke—The Necessity Defense As stated earlier, many of our clientele are consuming cannabis to deal with a medical condition. Because the TCUP is so narrow, only a small number of people qualify for treatment under it.

Even though my clients are not participants under TCUP, the Penal Code still allows for their legitimate medical use to be presented as a defense to prosecution.

In my opinion, the necessity defense is one of the most underutilized defenses in our code. What makes it particularly appealing to me, in the context of cannabis cases, is the harm analysis. Given that a simple possession causes no (or arguably very little) harm, all a practitioner must do is present evidence of imminent harm that cannabis consumption avoids. If someone is using cannabis to treat a medical condition, reaching the imminent hurdle should not be a challenge. Cannabis, particularly when smoked, has a relatively short active window of effects on the mind and body, making it necessary to be in possession of your medicine at all times. It is important to remember that the necessity defense is viewed from the actor’s (our client) position. While your clients’ beliefs still must meet the reasonable standard, the defense is based on their belief that being in possession is immediately necessary to avoid imminent harm.

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought

So, how to do you present this defense? Probably the easiest way (if you can stomach it and your client can handle it) is to have the defendant testify. If you have the resources to hire an expert witness, they too can be used to present this same defense.

If your client cannot or will not testify, and you do not have the resources for an expert witness,8 it may be difficult to present this defense but not impossible. Maybe your client has a friend or family member who has personal knowledge of their

7 I have never seen a lab report in a Texas prosecution that details the actual concentration of THC or a test for CBD in any capacity.

8 If it is purely a question of resources, consider asking the

court to grant you expert witness funds under Ake v.

Oklahoma, 470 U.S. 68 (1986).

9 Due to its length, we did not include this request

Sec. 9.22. NECESSITY. Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

12

DEFENDER 2019.04.indd 12

5/15/2019 9:08:59 AM

conditions, symptoms and their need to consume cannabis. Maybe your client made statements to the arresting officer or in jail that support their necessity defense. Don’t be afraid to use your own creativity when trying to apply this defense.

Up in Smoke—How to set ablaze the State’s evidence using 39.14 & 38.35 Unlike with flower cases, in other THC felony cases lab testing is routinely done. The substance is sent to the lab to 1) confirm it does contain THC; and 2) weigh it. With the proliferation of legal cannabis products in other states, all criminal defense practitioners have likely had one of these cases: possession of less than a gram of tetrahydrocannabinol—valid traffic stop, search and subsequent arrest, and a lab report that says, “yes—less than a gram of THC.” Now what?

We handled one of these recently in Tarrant County. Our client was not going to accept probation, and the prosecutors were not offering anything else worth considering. The stop and search were good, so we decided to do some digging on the lab. We were in a unique position in that the lab was Integrated Forensics Laboratories (IFL). At the time, IFL’s blood-alcohol testing had already been discredited in Bexar County, so it certainly piqued our interest. request.9

We started by crafting a discovery From this discovery request we received the lab’s general litigation packet, which did not fully comply with our request.10 One item that stood out in particuwith this article, but for a copy, email me at: Megan@ RoperAndMehler.com; We are of the opinion that 39.14 allows for this to be made as a “request” rather than a motion and order. For the rest of this article, I will say request, but if you prefer a motion and order—go for it.

10 We went round after round with the prosecutors on this

lar was the wide variety of addresses on the documents we were provided. It seemed each document attached to our case was from a different address.

How could so many labs, in various locations, be involved in this one test? Which lab actually tested the substance in our case? Lab accreditation is based on an individual lab, and each is accredited for certain types of testing, so this question became very important.11 Texas Code of Criminal Procedure 38.35 speaks to the admissibility of forensic analysis evidence.

Subsection (d)(1) of that article states, “…forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of analysis, the crime laboratory conducting the analysis was not accredited....” In our case, the State was never able to present accreditation for the lab which allegedly tested the substance. That, combined with their other failures to comply with our 39.14 request, resulted in us moving for the evidence to be excluded from trial. Seeing the writing on the wall, the prosecutors dismissed our case before trial began. This dismissal and our ferreting out of this unscrupulous lab, combined with the subsequent efforts of other defense lawyers, eventually led to the discontinuation of the use of IFL in Tarrant County altogether.

It is unfortunate that our legislators, and now sadly the appellate courts, have refused to give us any teeth by which to enforce 39.14. That, however, does not mean it cannot be used as weapon in our issue, and eventually asked for the evidence to be excluded for their failure to fully comply with 39.14.

11 IFL operates under the umbrella of NMS Labs. They are a nationwide provider of local and municipal laboratory services.

13

DEFENDER 2019.04.indd 13

5/15/2019 9:08:59 AM

defense. After a validly made request, when the State fails to produce the accreditation, 38.35 in combination with 39.14 gives you a strong basis to request the exclusion of this evidence.

one of those categories, then maybe handling these types of cases isn’t for you. For anyone interested in debating the merits of these issues, I welcome you to roll with me in Denver for a weekend.

Even if the prosecutors are able to produce accreditation under 38.35, fully complying discovery related to the lab will likely present a challenge. Do not hide behind 39.14; use it as a hammer to beat the prosecutors into submission. This also means be willing and able to push forward with a trial at every setting. If you allow the State more and more time to comply … well, even a broken clock is right twice a day. You have to demand your trial and that the State be held accountable for their failure to comply with 39.14.

Megan Roper is a partner of Roper & Mehler, The Dopest Lawyers in Town. Their principal office is located in Dallas, Texas. Megan began her legal career in criminal defense in San Antonio, Texas. It is there that she met her now law partner, Daniel Mehler. Daniel’s passionate advocacy for cannabis was an inspiration to Megan, and soon after they partnered together to create a firm that focuses on cannabis related issues throughout the State of Texas. Megan and Daniel takes great joy in helping other lawyers with cannabis related cases as well.

If you need any help, or have any ideas, do not hesitate to reach out: LawOffice@RoperAndMehler.com or 888DOPE-420.

These are just a few tools we have developed along the way. They are by no means the only way to fight a cannabis possession case. And like with any trial, jury selection is critically important. When it comes to jury instructions in a cannabis case, these are simply legal avenues to allow a jury to nullify.

If you are picking a jury on a cannabis case—it is a nullification case. You must develop, from the beginning, that Texas cannabis prohibition is wrong.

You must develop the positive aspects of cannabis, and you must empower the jury with their innate right to nullify. I have seen my law partner go as far as asking a venire panel, “do any of you know what jury nullification is,” without drawing an objection. I have also seen the opposite happen, merely the scent of nullification in the air draws an objection from the prosecutors. You have to be flexible and creative when presenting this concept. Do not be afraid of drawing objections.

Special thanks to attorneys Stephanie May, James Anders, and Caitlin Howell for their help with this article.

I talk to criminal defense practitioners all the time that tell me either they do not believe in jury nullification, the benefits of cannabis, or that cannabis prohibition in Texas should end. If you fall into

14

DEFENDER 2019.04.indd 14

5/15/2019 9:08:59 AM

LIFE IS

BETTE R

IN COLOR

let us take care of all your printing needs

MAGAZINES | CATALOGS | POSTCARDS CALENDARS & BROCHURES

4954 Space Center Dr., San Antonio, TX 78218 210.804.0390 | www.shweiki.com

DEFENDER SAN ANTONIO

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.

DEFENDER 2019.04.indd 15

5/15/2019 9:08:59 AM

The IH-10 Lawyer Sean R. Simpson

H

ead a couple hours west of San Antonio on IH-10 and it’s not unusual to see an out-ofstate vehicle pulled over by law enforcement with the occupants sitting or standing by the side of the road. I drive IH-10 more than anyone should have to and this picture always makes my mind run wondering what the facts of the stop are.

Did they find anything? What was the reason for the stop? What will the outcome be? In a few instances, I’ve had the opportunity to actually find out—but one will always stick out. Maybe because I was a brand new lawyer and could have really screwed it up, or maybe because that’s when I realized what a circus any case can become.

A few years back, a gentleman from Florida hired me because in his paraphrased words, he was “pulled over for looking out of place driving down some hillbilly stretch of IH-10 in Texas.” The prob-

lem was the officers had brought in a drug dog and found about 7lbs of alpha-PVP aka “Flakka,” the synthetic drug behind the whole face-eating episode that had just happened in Florida at the time.

The first thing I did was research the drug and make sure it was in fact illegal. After reviewing the labs and looking at the break down of the ingredients in the drug, it became clear that, although it was a new chemical compound, it did indeed fall under the statute as illegal. A few years prior it might have fallen in a loophole but, by this time, the legislature had fixed the language to encompass just about every chemical variation of this type of synthetic drug.

The interesting portion of the case came later, unexpectedly, at a motion to suppress. At the time I was sure the stop itself was unlawful, so that would

16

DEFENDER 2019.04.indd 16

5/15/2019 9:09:01 AM

be the focus of my motion to suppress. The report stated the officer was unsure if the passenger had a seatbelt on; however, the video and audio never mentioned a reason for the stop and it was clear the passenger’s seatbelt was on the entire time. This was clearly a fishing expedition on a rented outof-state vehicle with occupants that I will admit looked a little rough around the edges.

Prior to the motion to suppress, I decided I’d better challenge the reason for the search as well, since we were already there and to give myself two bites at the apple. I’ll be candid that from my limited previous dealings in that county, I knew even a strong motion to suppress was likely to be denied. I decided I’d need every advantage possible, especially since I was a baby lawyer, so off went a 14 page brief attached to my motion. I threw everything plus the kitchen sink in there about why the stop was bad, which made the search bad, making this arrest no good—so I win!

The day of the hearing came, and after the judge told me to move along several times while questioning the stopping officer, it was clear how he would rule on the stop issue: I was toast. If the officer said he thought the defendant wasn’t wearing a seatbelt in his report and in testimony then that was it, no matter what the video showed.

I was pretty defeated and annoyed but there was still the search issue that revolved around the reason to call and wait for a drug dog in my motion.

The reason given in the report was nervousness and conflicting stories that also was not present in the video or audio recordings, but I knew how that would go at this point.

That’s when my luck changed.

A huge mistake on my part was that I never planned to subpoena or call the drug dog or his handler. My

argument was they should have never been called out in the first place, so it didn’t matter what they found. To my surprise, however, the State did not stop with the officer’s decision to call in the drug dog. The judge shut me down again on the stopping officer, and they moved on to calling the dog handler to the stand.

For the better part of the next half hour, the State and the dog handler talked this dog up to the judge to be the best drug dog in all of Texas. It was at that point I realized I knew nothing about drug dogs and hadn’t prepared for this. The handler had brought training certificates, statistics, everything you could think of to show how great and accurate his dog was at detecting drugs. So as the State was finishing up, they asked what was found in the area the dog hit on. Everyone knew the answer: synthetic drugs, namely Alpha-PVP. Then they passed the witness.

As I said before, I didn’t have much for this witness and that dog sounded pretty dang good, even to me, but we were all there so why not! I first asked the handler if any other drugs or anything illegal aside from the synthetic drugs was found in the car. The answer was a definite no. Next I decided to ask if the dog was trained to detect synthetic drugs, specifically Alpha-PVP. No-brainer softball question, right? You’d have thought I insulted the handler’s mother in public! He turned bright red, almost angry at me and after a few seconds of stewing silence said, “No.” I’ve never seen a hearing come to a screeching halt out of the middle of nowhere like it did that day. The judge was fighting mad that the State had wasted all that time qualifying this drug dog that wasn’t even trained to detect what it supposedly detected. But he still wasn’t mad enough to completely help me out. He angrily sat through oral argument before declaring he was taking the

17

DEFENDER 2019.04.indd 17

5/15/2019 9:09:01 AM

motion under consideration and making it clear he was done with all of us for the day.

About three weeks later I received a fax stating my motion had been denied, so I requested findings of facts and conclusions as well as a motion for rehearing. About a week after that, I received a dismissal in my case from the District Attorney’s office. I never really got to talk to the prosecutors after that as to why there’d been a change of heart, but I didn’t really care enough to hound them. I found out several months later that my same hero had been indicted on all kinds of Federal charges out of state so that likely played some role.

Looking back, there are several things I learned from that case, and I feel I got downright lucky as to how it all worked out. My biggest takeaway was

that I did not request enough discovery regarding the K-9’s training. I just took what they gave me out there. I also learned some prosecutors and even judges won’t go out of their way to get to your requests until you annoy them enough. I might still be waiting to have my motion heard had I not been so persistent about it. Lastly, I feel I did a poor job preserving any errors during our motion, something that weighed on me until I received that dismissal.

Hopefully someone reading this can learn from all the mistakes I made. But also remember: you never know what will pop up in a pre-trial motion, so go ahead and let it rip. You may just get lucky like I did!

Sean R. Simpson is an attorney at Crawshaw & Simpson, PLLC.

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.

18

DEFENDER 2019.04.indd 18

5/15/2019 9:09:01 AM

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)

DEFENDER 2019.04.indd 19

5/15/2019 9:09:01 AM

DEFENDER 2019.04.indd 20

5/15/2019 9:09:04 AM