East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Thomas v. Bobby D. Associates (Published Memo): $49,000 in fees for a $7,000 recovery is excessive.  The Tyler court orders a $24,000 remittitur.

This is a collections case.  Thomas agreed to buy six tracts of land in Van Zandt County.  He made the payments for a while, but couldn't keep them up.  Bobby D repossessed the tracts but still sued for the full amount on the notes, plus interest.  In total, Bobby D sought about $80,000 in damages.  The jury only awarded $7,000.  That's because the trial court didn't go for the Bobby D's double-dipping.  The trial court instructed the jury to base their award on the amount due on the notes less the current fair market value of the repossessed tracts.

In light of the award, the Tyler court couldn't stomach the big fee award.  Bobby D had asked for too much, had let the case linger on the docket for seven years, and had multiple attorneys get up to speed on the case only to hand it off to someone else.  The Tyler court makes Bobby D an offer: agree to a $24,000 reduction in the fee award, or have the fees wiped out and sent back to the trial court for a do-over.

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Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

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Morris v. State (Unpublished Memo): Morris got deferred adjudication community supervision on a theft charge.  Roughly a year and a half into it, Morris blew off reporting to his supervision officer, paying restitution installments, and doing monthly community service hours.  The State asked the trial court to proceed to final adjudication and sentence Morris to prison.  The trial court did.  Three years.

Morris appeals.  This is new, as appeals from deferred adjudication have only been allowed since 2007.  The State filed its motion to proceed to final adjudication just eleven days after the change in the law took effect. 

But the appeal is on the same terms as a revocation of probation.  Morris must show that the trial court's judgment is void.  Quoting the Court of Criminal Appeals, the Tyler court notes that:

[A] judgment is void only in very rare situations-usually due to a lack of jurisdiction . . . . A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived . . . . While we hesitate to call this an exclusive list, it is very nearly so.

The next bad news for Morris is that a guilty plea counts as "some evidence" to support the trial court's judgment.  Having pled "guilty" to the underlying theft charge, and "true" to the State's grounds for revoking the deferred adjudication, Morris is out of luck on appeal.

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Christopher v. State (Unpublished Memo): What county has venue when an officer feels something as he pats a suspect down, but doesn't conduct a strip search until he takes the suspect to a jail in a nearby county?  Answer: the county with the jail.

Christopher was pulled over 937 yards on the Smith side of the Smith/Cherokee county line.  He was pulled over because his car didn't have a front license plate.  To make matters worse, Christopher didn't have a driver's license, and his passenger had an open alcoholic beverage.  The DPS Trooper patted them down for weapons.  The Trooper didn't feel weapons, but did feel something he figured was contraband.  The Trooper then took the two to the Cherokee County Jail. A strip search of Christopher revealed several "Halloween bags" of cocaine in a place that it taint polite to mention.

Christopher appeals his Cherokee County convictions on grounds that Smith County had jurisdiction.  The statute on county-line crimes provides that: "An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties. . . ." Tex. Code Crime. PRC. Ann. art. 13.04 (Vernon 2005).  The Trooper had mistakenly believed that he was within that zone, and that's why he took Christopher to Cherokee County.  But that doesn't mean Christopher wins the venue issue.

The key question is whether it's fair to say that Christopher possessed cocaine in Cherokee County, or the Trooper manufactured venue by taking him there.  First off, the Trooper had no obligation to conduct a strip search in the field.  Second off, Christopher's back seat ride with the Trooper qualifies, in the words of the Tyler court as:

"voluntary under section 6.01(a) of the penal code in that it was not accidental. See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crime. App. 1993); Brown v. State, 89 S.W.3d 630, 632-33 (Tex. Crime. App. 2002).

Finally, it's worth mentioning that Christopher resided in Cherokee County.  The venue challenge is denied conviction affirmed. 

By the way, Christopher's challenge to the chain-of-custody of the cocaine goes nowhere.  If you want to accuse the cops of misplacing something, try something a little less conspicuous than Halloween bags.

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Floyd v. State (Unpublished Memo): There was no factual basis to support a Tex. Code Crim. Proc. Ann. art. 38.23(a) jury instruction, thus a failure to request the instruction cannot amount to ineffective assistance of counsel.

Floyd believes that there was no basis for the traffic stop that resulted in a search that turned up cocaine.  The traffic stop was over an unlit license plate.  Those things are supposed to be lit so that the plate can be read from fifty feet away.  The officer and her dash cam say Floyd's plate wasn't properly lit.  Floyd's attorney cross-examined them on this point, but didn't produce any conflicting testimony.  And there's the rub.

Under Art. 38.23(a), a defendant is entitled to an instruction to the jury that they can disregard evidence if there was a fact question over whether it was obtained improperly (e.g., unlit plate = proper stop, or lit plate = traffic stop without probable cause) and the jury resolves that fact question against the State.

But here, there was no "unlit or lit" fact question.  There was only the officer's testimony.  Cross-examination questions, however pointedly worded and emphatically stated, do not raise a fact issue.

With no fact issue, no basis for the jury instruction.  No basis for the jury instruction, no error by the attorney in "failing" to request it.

Side note: the Tyler court could have taken the easy way out and relied on the Strickland presumptions.  Instead, they grabbed the issue head-on and said that the trial counsel's work was actually effective.

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Lewis v. State (Unpublished Memo): The State wanted to sentence Lewis as a habitual offender.  The State's initial notice of intent to use prior convictions was insufficient.  On remand, Lewis contended that the insufficient notice placed one of his prior convictions off-limits for sentence enhancement purposes.  The Tyler court, in keeping with prior cases, rejects that argument.  The consequence of the insufficient notice is a re-sentencing.  At that re-sentencing, the State has the option to issue a new notice and (if the new notice is proper) use all prior convictions for enhancement purposes.

In another point, Lewis challenges the State's proof that he is the same Lewis from earlier cases.  As in the earlier case of Hack v. State, a matching fingerprint from any document in the old case file will do.

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Flores v. State (Unpublished Memo): Conviction of DWI with child affirmed.  The question was whether Flores was the driver.  He and his family say no.  The Trooper says yes.  The jury believed the Trooper.

Flores was in a GMC Yukon with his wife and a young niece.  They had just left a party attended by many of their family members, including the parents of the child.  The father of the child was the first to be pulled over.  The Trooper was administering the standard battery of field sobriety tests when Flores saw the fix his brother was in.  Flores pulled over too.  Or was it Flores?

Here's a tip: I'm all for familial loyalty, but if you've been drinking, it's probably not a good idea to interrupt an officer giving a field sobriety test.  When Flores injected himself into the situation, and did not follow the Trooper's directives, the Trooper soon switched his focus to Flores.  Flores failed all of the field sobriety tests.

There was no dispute that Flores got out of the driver's side of his SUV. He says that he was in the back seat, not the front.  He contents that the Trooper was too busy with his brother at that time and didn't pay specific attention to whether he got out of the front seat or the back.  Flores, his wife, his brother's wife, and other family members who saw them loading up at the party all said that the wife was at the wheel.

The wife's testimony was perhaps too strong on this point.  The Trooper's dash cam shows the front passenger door of the Flores vehicle opening, and a foot coming out for an instant before the door was shut again -- all at a point when Mr. Flores was already out of the vehicle.  The problem with the wife saying she was behind the wheel at that time is that she was too petite to have reached across a GMC Yukon to have opened the passenger door and stuck her foot out -- at least not from the driver's side. 

The Tyler court holds that, even though the Trooper did not have a specific recollection of seeing Mr. Flores with his hands on the wheel, his testimony and the dash cam video were enough to support the conviction.

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Dewberry v. State (Unpublished Memo): In a case of aggravated assault via shooting, the issue was whether Dewberry was the triggerman.  A sprawling multiparty altercation started at a gas station, adjourned, and reconvened at the Notorious Grill (a quorum was present).  Then, in an astonishing breach of Robert's Rules of Order, someone got shot.

Browning was the victim.  He and a man named Pullins had initially called the meeting to order at the gas station.  At trial, both Browning and Pullins identified Dewberry as the shooter.  Dewberry says that evidence is insufficient to convict him.  Dewberry points out that, at the scene, the victim wasn't sure who shot him, and indeed, thought it was Pullins.  What's more, Dewberry's associate, Pullins only named Dewberry as the shooter after he, Pullins, became the focus of the investigation.

Justice Bass, as he is wont to do, addressed these points with the eloquence of the obvious:

[Browning's] initial confusion is understandable. Browning lay wounded in a dimly lit parking lot with his attention focused on the end of the gun barrel pointed at him. He had never seen [Dewberry] before and he naturally suspected Pullins, the man with whom he had quarreled twenty minutes earlier. The initial reluctance of [Dewberry's] companions to name him as the shooter needs no explanation.

The eyewitness testimony, though it had changed between the scene and the trial, was sufficient to support a conviction.  The only relief Dewberry gets is that his $10,000 fine was vacated by agreement because it went beyond what was authorized by the relevant section of the Penal Code.

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Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI.  That's a change.  It used to be that DWI convictions more than ten years old couldn't be used.  Like it or not, the change is constitutional.  Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that "college stuff" in the 1970's, 80's or 90's is water under the bridge.

Crocker had 1992 and 1993 convictions and new, 2006 offense.  He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them.  The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.

Crocker's argument is rejected.  True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.

Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on.  He makes an analogy to a deferred adjudication case, Scott.  In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence.  At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime.  Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences.  And, (also sure enough) Scott committed another crime.  But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication.  So his prior offense could not be used to enhance the sentence for his current one.

Unfortunately for Crocker, the analogy doesn't hold.  The limitation on the future use of Scott's deferred adjudication was a clear and definite part of the deal for that offense.  The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences.  Instead, it was a conditional pledge by the Legislature that could be changed.  In the words of the Tyler court :

"the former ten year time limitation on the use of DWI convictions 'was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'" (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)

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Hall v. State (Unpublished Memo): DWI conviction challenged on grounds that the officer who administered the horizontal gaze nystagmus test to Hall wasn't an expert in its use.  Under Court of Criminal Appeals authority, the reliability of the HGN test is presumed, leaving the training of the officer who administered the test as the only question.  Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994).  The Tyler court holds that this officer's "less than scholarly awareness of the recent literature on the subject and his unfamiliarity with any of apparently forty-seven types of nystagmus [i.e, non-DWI causes] goes to the weight of his testimony, not to its admissibility."

It didn't help Hall that he denied alcohol use, then admitted it, had alcohol on his breath, was unable to hold his head still, and was generally unsteady on his feet.

Although Mr. Hall fought the law and the law won, expect defense counsel to continue to mount challenges to the HGN.  Why?  Because here's what the prosecutors have to say about the test:

Nothing is worse for police and prosecutors than impaired drivers who have already been through the system three or four times.These hardcore offenders have learned not to make incriminating statements or take blood alcohol tests. They even practice the standardized field sobriety tests (SFSTs) in bars before they drive home.  Their heightened tolerance to alcohol and repetition of the tests often gives them an ability to display only a small number of impairment clues, but there is one SFST that cannot be practiced or physically controlled—the Horizontal Gaze Nystagmus (HGN) Test.

That is good news for police and prosecutors.  The HGN test is the most accurate of all the tests, the best test for apprehending drivers between .08% and .12%, and the most researched of all the SFSTs. Experience has shown that multiple offenders may be quick to refuse the walk & turn or the one-leg stand tests, but for whatever reasons, many will submit to the HGN test.

The quote is from this 2003 publication of the American Prosecutor's Research Institute.

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Samet v. State (Unpublished Memo): A third grader testifies to a sexual assault that occurred when he was just about four years old.  The defense strategy: attack the kid.  Strategy backfires.  Opens the door to a photo of the grown male defendant wearing a white dress with pink hearts.  Also opens the door to a letter the defendant had written to his own son (a teenager at the time) asking the son to come to the father's house at an appointed hour, where the father would be wearing a dress and ready for sexual acts.  All of this is admissible because the victim remembers the defendant wearing a pink and white dress during the commission of the crime.

Under Tex. R. Evid. 403, there was also no error in admitting testimony that the defendant had, while changing a diaper when the defendant was one year old, fondled the victim's testicles.  That's too remote from what happened when the boy was almost four.  It's not very probative.  On the other hand, this evidence simply wasn't harmful to the defendant, in the light -- make that darkness -- of everything else.  So the trial court didn't abuse its discretion in admitting this testimony.

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Mrs. & Mrs. Hill v. the Jarvis Family (Published Memo): Treble damages awarded for wrongful sale of timber by cotenants involved in a partition suit.  Good discussion of the two-stage partition suit process.  Also worth remembering that the Natural Resources Code provision allowing for treble damages for wrongful timber harvesting applies even among cotenants. Tex. Nat'l Res. Code Ann. § 151.051(a). 

Here the Hills owned 37% of a Smith County tract, with the Jarvis family owning 63%.  The trial court had already entered an order confirming those percentages, and settling all claims for contribution (such as for one side paying for more of their share of property taxes up to the date of the partition judgment).  Still pending was the second stage: the appointment of commissioners and a surveyor to actually divide the property. It was at this point that Mr. Hill had all of the timber cut and sold.  The Jarvis family gets a judgment against Mr. Hill, but their judgment against the wife was vacated because there was no evidence she participated in her husband's actions.

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Carter v. State (Unpublished Memo): Conviction for intoxication manslaughter stands even though the defendant's intoxication may not have been the only cause of the victim's death.  Motorcycle operator and rider were both drunk.  Wreck killed the rider.  Rider had apparently been so drunk that she had trouble staying on the back of the bike -- in fact, she may have triggered the wreck by starting to slide off the seat. 

So was the wreck caused by the operator's intoxication, or by the rider's?  That's a trick question.  It's not an either-or proposition.  A "both" answer supports the conviction. "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."  Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

This is where time is crucial.  The operator tries to keep the focus entirely on the wreck itself.  But, much like it did in another case this year, the Tyler court focuses on the wreck, the earlier events on the road, and the even earlier decision to ride.  As to the wreck, the operator's own accident reconstruction expert admitted that his intoxication may have been "a factor."  (Incidentally, the operator's blood alcohol level, by ER blood sample, was .146)  In short, a sober rider might have been able to keep the bike on the road in spite of what the rider was doing.  A sober operator might also have maintained a more reasonable speed throughout the night's journey.  More to the point, a sober operator wouldn't have made this ride in the first place.  The operator had been drinking at a "biker bar" with his girlfriend/rider. He knew that she was literally stumbling drunk.  He admitted as much, and even said that he didn't start the ride until she had had a few minutes at the bar to sober up.

The operator's claim of charge error gets nowhere because his requested instruction wasn't a correct statement of the law.  His proposed instruction tried to box the jury into an either-or question.  The trial court was right to reject it.

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Weir v. State (Unpublished Memo): This is the companion case to Kelly v. State.  Kelly dealt with the wife who put out a "contract" for her husband's murder.  Weir is the teenaged triggerman who was tried as an adult.  Still, since he was 15 at the time of the crime, Weir asserts that his confession should have been suppressed and his conviction overturned because the State didn't comply with the pre-interrogation procedures of Tex. Fam. Code § 51.095(a)(1) or the § 52.02(b)(1) duty to notify his parent.  Weir also contends that there was insufficient proof that his acts were done "for remuneration."  Weir's arguments are rejected.  The conviction is affirmed, as is the sentence of life without possibility of parole.

[June 16: I've decided to bump these cases up to Case o' the Year Contender status.  I'll have a modified post up by the end of the week.] 

Under the Family Code, there's a checklist of warnings that must be given to a child before interrogation.  If the warnings are not given, any statement by the child is inadmissible.  Weir contended that the State needed his initials by each of the warnings on the checklist.  Although Weir didn't initial each and every warning, he did sign on the bottom of the page that he had "listened carefully to and understood each of the above rights as they were read and explained to me."  The Tyler court ruled that Weir's signature satisfied the statutory requirement, and his statement could be admitted.

No harm, no foul on parental notification.  To begin with, the Tyler court holds that the State made a reasonable effort to contact Weir's only living parent, his mother.  In fact, the mother showed up roughly an hour-and-a-half after Weir was taken into custody, although it appears that she got word through a cousin, not the State.  However she got there, this is nothing like a prior Tyler case where a statement was excluded. Simpson v. State, 51 S.W.3d 633 (Tex. App.-Tyler 2003), judgment vacated and remanded on other grounds, 74 S.W.3d 408, 408-09 (Tex. Crim. App. 2002).  In Simpson, the kid was interrogated for seven hours as the State waited forty-eight hours to notify his mother.  Weir's situation isn't a violation.

But even assuming there was a violation by the State interrogating Weir without his mother, Weir has the burden to show "a causal connection ... between the violation and the acquisition of the statement."  On that front, the Tyler court notes that:

Appellant's interrogation lasted only approximately forty-five minutes. Appellant never asked to see his mother or speak with her during the interview. Although Appellant was emotionally upset during the questioning, there is no evidence of coercive conduct by the officer conducting the interrogation.

If there was a violation, Weir didn't connect it to his statement.

The remuneration issue is what makes this a capital offense.  Here some of the facts from the opinion ("Weir" inserted for "Appellant"):

Approximately three weeks before the murder, Weir, in separate conversations with his uncle and cousin, said that Marcia Kelly had promised him $10,000 and a dually pickup to kill James Kelly. Weir asked his uncle to take care of his mother if something went wrong. At that time, Weir's uncle returned Weir's 30-30 rifle to him. (Yes, the .30-.30 was the murder weapon.)

At trial, the uncle and the cousin testified to those conversations, but also said that they didn't take Weir seriously.  Not matter.  On the remuneration element of the crime, it's Weir's state of mind that matters, and those statements, and his subsequent acts, show that Weir was serious.  What's more, it doesn't matter that there wasn't any sort of written contract between Kelly and Weir.  The remuneration element is a matter of criminal law, not contract law. 

Finally, the "remuneration" motive need not be the sole motive for the crime.  There was evidence that Weir was a "socially immature" kid who had recently lost his father and grandfather, and had found friendship with Shaina Sepulvado, Mrs. Kelly's daughter (the victim's step-daughter) and Shaina's circle of friends.  Shaina contended that her step-father mistreated her.  Perhaps some of the reason Weir acted was out of loyalty to Shaina.  No matter.  Weir's conversations with his uncle and cousin show that some of his motive was remuneration.  Some evidence of expected financial gain is all that is needed to satisfy the remuneration element.

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Johnson v. State (Unpublished Memo): Robbery conviction affirmed.  Prospective juror's brother worked at the store that was robbed (a Brookshire Bros. grocery store in Lufkin), but the brother was not involved in the Johnson incident.  The record was silent on whether the prospective juror was personally acquainted with his brother's co-workers.  The prospective juror at first indicated that he'd definitely favor his brother if his brother testified (he didn't) and might favor his brother's co-workers.  Then the prospective juror backed off, saying: "No, I don't think I would.  I'd try not to."  The trial court refused to disqualify this prospective juror, and he was seated.  Given the prospective juror's ambivalent answers, the Tyler court defers to the trial court's discretion to judge the prospective juror's demeanor and tone of voice.

Johnson had stolen a sausage.  He hid it in his pants.  I know, I know, some of you are wondering why I didn't have a witticism about this in the title.  Well, Justice Bass took the high road, and so will I.  Here's why: this was not a joke.

Store personnel confronted Johnson in the parking lot.  Johnson stopped, answered their questions, and gave back the sausage.  When asked if he had anything else, Johnson answered: "I got a .38."  The store manager sent everyone else back inside to call the police.  Johnson stayed around.  When the police came, they didn't find a weapon on Johnson.  They did, however, find a crack pipe.

On appeal, Johnson says that there was no reason to turn this petty theft into a robbery charge.  Johnson says that, since he didn't really have a gun,  the store personnel had no real reason to fear him.  Justice Bass disagreed.  In an eloquent turn of phrase, he stated: "An escaping thief's announcement that he has a pistol is enough to inspire fear in the boldest citizen."

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Purvis v. State (Unpublished Memo): Purvis was convicted of possessing 21 rocks of crack cocaine with intent to distribute. Purvis says he didn’t have the cocaine on him at the time of his arrest, and he wasn’t seen trying to sell the rocks, so the evidence doesn’t support either possession or intent to distribute. Purvis also says that the bench where the drugs were found was private, and shouldn’t have been searched without a warrant. Finally, Purvis complains that the State lost a videotape that showed part of the scene. The Tyler court rejects those arguments and affirms the conviction.

Crockett Police Officers Ramos and Massingill saw Purvis sitting on a bench on the front porch of a known drug hangout. Purvis put something under the bench, and then got up to talk to Officer Ramos. When Ramos insisted on proceeding into the hangout to talk to the owner, Purvis quit talking and started running. The officers knew Purvis and had hunch about where he’d run. So, instead of chasing Purvis, the officers looked under the bench and found the 21 rocks of crack. Then they tracked down Purvis just where they thought he’d be – at his girlfriend’s apartment.

The circumstances support the conviction. On the possession element, the Tyler court follows the Poindexter/Evans standard of the Court of Criminal Appeals: “[W]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which … link the accused to the contraband.” On the intent to deliver element, the Tyler court follows the Fort Worth court’s Garrett factors: “Circumstances considered by the courts in determining ‘intent to deliver’ include (1) the nature of the location where the defendant was arrested, (2) the quantity of the drugs the defendant possessed, (3) the manner of packaging the drugs, (4) the presence or absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a large amount of cash in addition to the drugs, and (6) the defendant’s status as a drug user.”

On the search issue, the owner of the hangout testified that the front porch of his house was, and long had been, a meeting ground shared by all. Purvis had no expectation of privacy in, on, or under the bench.

Finally, Purvis complains that the dash camera of the patrol car could have helped exonerate him. The video would not have shown the bench or the interactions, but it would have shown some of the scene. Consequently the video was not essential to the State’s case or directly exculpatory. It was merely “potentially useful.” The State lost the tape. For that to rise to a violation of the right to due process, Purvis would have to show that the State acted in bad faith. Purvis didn’t allege that, and didn’t make any showing of bad faith. Word to the wise: The Tyler court noted that an objection on federal constitutional grounds did not preserve error on a state constitutional complaint.

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Mayfield v. State (Unublished Memo): DWI case explains the distinction between two varieties of warrantless searches: exigent circumstances and community caretaker.

A concerned citizen observed Mayfield driving erratically through Tyler– swerving, running red lights, etc. The concerned citizen followed Mayfield to Mayfield’s home. The whole time the citizen was on the phone with Tyler PD, giving the plate number of Mayfield’s vehicle, a description of Mayfield’s vehicle, and a play-by-play of Mayfield’s actions. As Tyler PD was on its way, Mayfield came back out of his house and moved his vehicle from his driveway (where he’d first parked) into the garage. The garage door was open when the officer arrived. The officer could see Mayfield slumped over the wheel with one leg hanging out the open driver’s door. Without getting a warrant, the officer entered Mayfield’s garage and roused him. It was obvious that Mayfield was drunk, and the officer arrested him. Mayfield contends the arrest resulted from a warrantless search.

Warrantless searches are presumed invalid, but there are exceptions.

One category of exceptions is "exigent circumstances." There must be probable cause, plus a good reason why there wasn’t time to actually get a warrant.

Another category of exceptions is "community caretaker." Probable cause isn’t needed for community caretaker searches. The community caretaker doctrine allows the use of evidence discovered when officers are performing non-criminal duties, such as rendering emergency aid to people in distress. If the officer’s motivation was primarily criminal investigation, the community caretaker exception doesn’t apply.

In this case, the community caretaker exception doesn’t apply because of the officer’s criminal investigation motive.

Even so, the search is valid because of the exigent circumstances exception. The probable cause was supplied by the concerned citizen’s detailed, first-hand account of events. That, and the fact that a guy slumped over the wheel could be passed-out drunk. What’s more, the sight of a guy slumped over the wheel in his garage counts on the "reason why there wasn't time to get a warrant" side of the ledger, too. Confronted with that situation, an officer has good reason not to stand around waiting for a warrant. Though the guy’s probably drunk, the officer can’t rule out heart attack or stroke until he goes into the garage. And if the guy behind the wheel is just drunk, there’s a chance he’d come to and take off back onto the public streets if the officer waited around for a warrant.  So the search was valid, and the conviction was affirmed.

If, after reading this, you're in the mood for some Asleep at the Wheel music, click here.

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Hole v. State (Unpublished Memo): When there’s no objection at trial, a party claiming his counsel had a conflict of interest must show that the conflict was “actual” not potential, and must also show that the conflict actually impacted the quality of the representation: Counsel’s prior representation of defendant’s partner-in-crime (now turned State’s witness) was not an actual conflict and did not taint counsel’s representation of defendant.

The chase was on. Mr. Hole was at the wheel. Mr. Wilson was in the passenger seat, using Hole’s rifle to fire at the pursuing officers. Wilson made a plea agreement with the State and testified against Hole. Wilson said this escapade was Hole’s idea. Hole said it was Wilson’s.

To be precise, Hole claimed he’d never have fled but for his fear of the crack-addled Wilson.

Hole’s trial counsel had represented Wilson a year earlier on a drug-related matter, but did not represent Wilson concerning this event. Even so, Hole said the prior representation created an “actual conflict-of-interest” for his counsel, requiring a new trial.

The Tyler court ruled that the prior matter and the current trial were “not connected.” There was no conflict.

In any event, Hole had to do more than show that there was a conflict, he had to show that the alleged conflict tainted the representation.

Hole’s gripe was that his counsel didn’t cross-examine Wilson about his crack habit. But Hole hadn’t told his attorney about Wilson’s drug-of-choice. And the record was clear: Hole’s counsel didn’t cut Wilson any slack. During cross-examination, counsel got Wilson to admit that he was “highly intoxicated” at the time of the event, and that his memory “wasn’t too good.” But the real clincher was that Wilson had more to lose that Hole from being arrested – on account of Wilson being on deferred adjudication for failure to register as a sex offender.

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