18th Annual Stuart Kinard Advanced DWI

Stuart

Texas Criminal Defense Lawyers Association

18th Annual Stuart Kinard Advanced DWI

Table of Contents

speakers topic

Thursday, November 3, 2022

Betty Blackwell Ethics Dos and Don’ts with Clients

Michael Gross DWI Case Law Update

Gary Trichter Discovery and Pretrial Motion

Friday, November 4, 2022

David Burrows Voir Dire

Doug Murphy Cross of the State’s Blood Expert

Larry Boyd Significant Recent Decisions & Emerging (Disturbing?) Trends in DWI & ALR Law

Lisa Greenberg Punishments and Collateral Consequences of DWI Cases

Hill Meadow Dr :: Austin, Texas ::

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Date November 3 4, 2022

The Menger Hotel

ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION

Alamo Plaza, San Antonio, Texas

Course Director Bobby Barrera, Michael Gross,

Total CLE Hours 13.5

Thursday,

Kobs, and Gary Trichter

Hours:

Time CLE Topic Speaker

7:30 am Registration and Continental Breakfast

8:10 am Opening Remarks

Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter

8:15 am 1.0 Ethics

Betty Blackwell ETHICS

9:15 am 1.0 Case Law

Michael Gross 10:15 am Break

10:30 am 1.0 Discovery and Pretrial Motions Gary Trichter 11:30 am 1.0 Defending Citizens Accused of Drugged Driving Deandra Grant

12:30 pm Lunch on Your Own

1:45 pm 1.0 Cross of the Breath Test Officer and Technical Supervisor Adam Kobs

2:45 pm 1.0 Cross of Arresting Officer

3:45 pm Break

4:00 pm 1.0 SFST

5:00 pm Adjourn

Bobby Barrera

Lisa Martin and Gary Trichter

TH ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION

Date November 3 4, 2022

The Menger Hotel 204 Alamo Plaza, San Antonio, Texas

Course Director Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter

Total CLE Hours 13.5

Friday, November 4, 2022

CLE Hours:

Time CLE Topic Speaker

7:45 am Registration and Continental Breakfast

8:10 am Opening Remarks

Bobby Barrera, Michael Gross, Adam Kobs, and Gary Trichter

8:15 am 1.0 Voir Dire David Burrows

9:15 am 1.0 Cross of State’s Blood Expert Doug Murphy

10:15 am Break

10:30 am 1.0 ALR Larry Boyd 11:30 am Lunch on Your Own 12:45 pm 1.0 Investigation Secrets

1:45 pm 1.0 Collateral Problems

2:45 pm Break

Jim Reeves

Lisa Greenberg

3:00 pm 1.0 Blood Evidence Challenges Nnamdi Ekeh

4:00 pm Adjourn

Speaker:

Stuart Kinard Advanced

Menger

Alamo Plaza San Antonio, TX 78205

Topic: Ethics

Blackwell

Nueces St

ETHICS

DOS AND DONT’S WITH CLIENTS

BETTY BLACKWELL Attorney at Law Board Certified in Criminal Law 1306 Nueces Street Austin, Texas 78701 512-479-0149 bettyblackwell@bettyblackwell.com

TABLE OF CONTENTS

The Basics. . . . . . . . .

Use a written contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Malpractice and ineffective assistance of counsel . . . . . . . . . . . .

Failure to Communicate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Who can File a grievance?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fee Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Non-refundable retainers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Trust Account Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Perjury by Defendant . . . . . . . . . . . . . . . . . . . .

. . . . . .

Advising Subpoenaed and Potential Witnesses . . . . . . . . . . . . . . . . .

Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . .

Ethics Opinion 690

Compulsory Discipline upon Conviction . . . . . . . . .

Rule changes as of 2021 . . . .

Grievance System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Investigaion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Investigatory Panels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Just Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Grievance Committee .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Grievance Referral Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Important State Bar Phone numbers . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 25

LIST OF AUTHORITIES PAGE

Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). . . . . . . . . . 16

Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987) . . . . . . . . . . . . . .8

Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) . . . . . . . . . . . . . 15

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997)

Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). . . . . . . . . . . . . . 13

In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001) . . . . . . . . . . .. . 19

Lafler v. Cooper, 132 S.Ct. 1376 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Missouri v. Frye, 132 S.Ct. 1399 (2012) . . . . . . . . . . . . . . . . 7

Nix v. Whiteside, 106 S.Ct. 988 (1986) . . . . . . . . . . . . . . . . . . . . . . . .. . .

Padilla v.Kentucky, 130 S.Ct. 1473, (2010. . . . . . . . . . . . . . . . . . . . . . . . .

Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Strickland v. Washington, 462 U.S. 1105 (1984) . . . . . . . . . . . . . . . . . . . .

Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998) . . . . . . . . .12

Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003) . . . . . . . . . . . . . . . . .5

Willie v. CFLD, 2014WL586226, (Tex. App. Houston 1st Dist. 2014). . . . .11

DOS AND DON’TS WITH CLIENTS

VIOLATIONS OF THE ETHICAL RULES

All lawyers licensed in Texas are required to abide by the Texas Disciplinary Rules of Professional Conduct. A violation of any of the disciplinary rules can result in a lawyer being sanctioned by the State Bar of Texas’s office of the chief disciplinary counsel. Sanctions can range from private reprimands up to disbarment.

Last year (through May 2020) the State Bar of Texas received 7505 complaints about lawyer misconduct. 5123 were dismissed because the complaint does not describe or allege a violation of the Texas Disciplinary Rules of Professional Conduct. 2202 were sustained complaints which proceeded as a grievance against the attorney. After an investigation,1705 cases were submitted to the summary disposition grievance panel for a dismissal. The following is a discussion of the most common complaints that result in a sanction by the State Bar of Texas and how to avoid them.

The Basics:

USING A WRITTEN CONTRACT:

Rule 1.04 Texas Disciplinary Rules of Professional Conduct

(c)when the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. A written contract will spell out exactly what work the lawyer has agreed to

undertake and at what fee. Many complaints to the State Bar arise between the lawyer and the client about exactly what the lawyer had agreed to do. Rule 1.02(b) states that a lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. However, without a written contract it is a swearing match as to what was said and the grievance can go forward if the State Bar disciplinary counsel has just cause to believe that a rule violation has occurred. Since it is a civil case, the burden to prove the allegations is by a preponderance of the evidence.

Limiting the extent of the representation is one of the most useful aspects of a written contract. Most clients believe that the fee for representation includes the appeal of an adverse decision. However, most lawyers do not intend to include the appeal in the original fee structure.

Explaining whether expert witnesses and other costs of the litigation are the client’s responsibility to pay for or the lawyer’s, is another area of common confusion. In criminal law, explaining that the expunction process is a separate civil proceeding that will not occur without additional fees being paid, is almost always an area of frustration on the part of the client.

Recently malpractice carriers have asked that attorneys include in their written contract exactly the length of time the lawyer will retain the client’s file and that the file will be destroyed unless the client takes possession of the file. Rule 1.14(a) requires that trust account records be kept for five years, so it is recommended that the time period of retaining a file be at least five years. A grievance must be filed within four years so that keeping the file at least five years will insure the records are available to defend any grievance.

Rule 1.04 (d) requires that a contingent fee agreement be in writing and that it must state the method by which the fee is to be determined. It also requires an accounting at the end of the case.

HISTORICALLY THE MOST COMMON GRIEVANCE:

Neglect

Neglect has been traditionally the number one most common complaint filed by former clients against their attorneys and it is the most likely rule violation to result in an attorney being sanctioned by the State Bar.

Rule 1.01(b)(1)

A Lawyer shall not neglect a legal matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004). The lawyer was sanction for the conscious disregard of a legal matter. He had been paid for an immigration matter and though told of the court date, the lawyer failed to appear. In contrast to the result in Santos, a simple calendaring mistake usually will not cause a lawyer to be sanctioned by the Bar as the comments to Rule 1.01 say “A lawyer who acts in good faith is not subject to discipline, under this provision for isolated inadvertent or unskilled act or omission, tactical error, or error of judgment” .

Malpractice is not always a violation of the Rule of Ethics and ineffective assistant is not necessarily a violation of the Rule of Ethics. An example of malpractice maybe telling a defendant that deferred adjudication will not show up on their record. But this probably doesn’t rise to the level of neglect, only incompetence. Malpractice can occur when a lawyer gives bad legal advice. However, that does not meet the definition of neglect to cause the lawyer to be sanctioned by the State Bar.

The duty to investigate, is part of the effectiveness standard. A lawyer must make a reasonable effort to investigate the case or after discussions with the client, make a reasonable determination that investigation is not necessary. Strickland v. Washington, 462 U.S. 1105 (1984). Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003). Failure to investigate a case may not rise to the level of neglecting a case in violation of the Disciplinary Rules of Professional Conduct.

Failure to convey the plea offer to the defendant can be neglect and cause a writ to be field. Failure to advise the client of the consequences of a plea offer is ineffective assistance and may also rise to the level of neglect or failure to properly communication with a client as discussed in the next section, under the rules of Professional Conduct.

For example some of the most common criminal cases:

Any plea to a DWI case can result in substantial non-criminal consequences for the person convicted. There are many areas of employment that prohibit a conviction for DWI, including Police Officers, Firefighters, and emergency medical technicians. Many employers have there own employment guidelines which can include dismissal for a DWI. School district often fire teachers if they are convicted of DWI. Canada will not allow anyone to enter the country if they have a DWI conviction.

In POM cases, a jail sentence results in a driver’s license suspension of up to 180 days. A jail sentence is a final conviction and can not be expunged nor can it be sealed if it occurred before September 1, 2015. Drugs cases are eligible for deferred adjudication, which can be eventually sealed, but not expunged. A regular probation stays on the person record for the rest of their

life. Many employers will not hire someone with a drug conviction. Many scholarships to colleges prevent people from applying who have drug convictions. Drug convictions can result in severe immigration consequences as do violation of gun laws. Many apartment complexes will not rent to individuals who have drug convictions on their record. These are just a few of the collateral consequences and many clients will file grievances upon their lawyer if they feel that the lawyer failed to properly advise them of the consequence of their plea.

The most common allegation of neglect in a civil case, is the failure to file a lawsuit within the statute of limitations. Though clearly this is malpractice and the lawyer can be sued, the defense to the grievance is that it was an isolated inadvertent act or omission or a calendaring mistake. But the comments to Rule 1.01 caution that delays can cause the client anxiety and the lawyer has a duty to communicate reasonbly with the client, suggesting that a grievance might be upheld for failure to communicate.

MALPRACTICE

Malpractice refers to negligence or misconduct that fails to meet a standard of care that is recognized in the profession and that results in harm to the client. In Texas it is very hard to sue a criminal defense lawyer for malpractice. The Supreme Court of Texas has decided that only innocent clients have a viable malpractice cause of action against their criminal defense attorney.

INEFFECTIVE ASSISTANCE OF COUNSEL

Strickland v. Washington, 104 S.Ct. 2052 (1984) set out a two part test. First the counsel’s representation must be deficient and secondly, that deficient performance must have prejudiced the defendant. The bench mark for judging any claim of ineffective assistance of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Under the 6th amendment, the defendant must show a reasonable probability that but for the counsel’s errors, the outcome would have been different.

Three important Supreme Court cases have reviewed the performance of criminal defense counsel to determine whether the client should be afforded a new trial. 1. Padilla v.Kentucky, 130 S.Ct. 1473, (2010) held that it was ineffective assistance of counsel to fail to advise a defendant that his plea of guilty to a drug distribution charge would make him subject to automatic deportation. However, Padilla is not retroactive to cases already final. 2. Failure to inform the defendant of a plea offer is ineffective assistance of counsel. Missouri v. Frye, 132 S.Ct. 1399 (2012) 3. In Lafler v. Cooper, 132 S.Ct. 1376

(2012), the defendant was prejudiced by counsel’s advise to reject the plea offer and proceed to trial. The trial counsel’s opinion that the evidence was legally insufficient to convict the defendant, was not sound advice. The defendant was entitled to effective assistance of counsel during the plea negotiations.

When deciding to accept a case, a lawyer should be aware of Rule 1.01(a) which states that a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence. The only exceptions are if the attorney associates another competent attorney on the matter with client consent, or it is an emergency situation. If in doubt, don’t take the case.

Immigration issues have been a focus of the Chief Disciplinary Counsel’s office. In their annual report for 2020, they stated that they received 19 immigration complaints, imposed 11 sanctions and referred 5 to the Grievance Referral Program.

Failure to communicate.

This is the second most common grievance filed and it is usually filed in addition to the allegation of neglect.

Rule 1.03 (a)

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule 1.03 (b) states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision.

In reference to a criminal case the Rules require a lawyer shall promptly inform the client of the substance of any proffered plea bargain. Failure to do so has been held to be ineffective assistance of counsel. Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). Failure to communicate a settlement offer in a civil case would be the same misconduct. Under the Rules, the lawyer is allowed to withhold information if believes the clients would react imprudently or if the client is under a disability.

Failure to communicate is alleged in close to half of all grievances filed. The duty is an affirmative obligation and it not dependent on a client’s request for information. Failing to advise a client of an adverse development in a case would be a violation. A lawyer must respond to reasonable requests for information.

Failure to provide adequate information for the defendant to make a decision about whether to have a jury trial or whether to accept a plea offer or a settlement offer can result in an attorney being sanctioned by the State Bar.

Lawyers must be aware of immigration consequences, employment consequences, and licensing consequences, as discussed under the section on Neglect.

Lawyers are not required by the rules to communicate with family members or loved ones. However, one of the biggest misunderstandings by attorneys is who can file a grievance upon them. Many lawyers will answer a grievance filed by a family member saying that they have no attorney client relationship and therefore are not required to answer this grievance. This is wrong.

WHO CAN FILE A GRIEVANCE?

Complaints with the State Bar may be filed by anyone. The complaint does not have to be filed by the client. There does not have to be an attorney client relationship for the person to file a complaint with the State Bar. Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) The Father of the client filed the complaint and the respondent attorney’s theory was that there could be no sanction because he represented the son. The Court made it clear that anyone can bring to the attention of the bar a rule violation. In addition, any alleged misconduct does not have to be in the course of an attorney client relationship for the State Bar to prosecute a violation under Rule 804(a)(3) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas). For example, a lawyer can be disciplined for actions taken as the executor of an estate, even though the lawyer may have no attorney client relationship with the beneficiaries of the will.

Rule 803 (a) requires a lawyer having knowledge that another lawyer has committed professional misconduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer, to inform the Chief Disciplinary Counsel’s office (CDC). The only exception is for mental illness or chemical impairment in which the lawyer can report the conduct to the Lawyer Assistant Program or the information is protected by confidentiality under Rule 1.05 or is obtained through counseling programs. Rule 1.05, Confidential Information, includes both privileged information and unprivileged client information which a lawyer shall not reveal except if provided by the rules.

Texas Lawyers Assistance Program’s phone number is 1-800-204-2222 ext. 1460. Conversations are confidential and referrals are available for help with mental illness, substance abuse or impairment by physical illness. The goal is to rehabilitate lawyers and help them resume practicing law.

Fee disputes

Fee disputes constitute a large number of complaints. Those complaints are first referred to the client attorney assistant program (CAAP) and to the local fee dispute committees of local bar associations. CAAP’s stated purpose is to try and work out a settlement so that the case does not proceed to a grievance. Their number is 1-800-204-2222 ext. 1777. If a reasonable settlement can not be obtained, the case is referred by the Chief Disciplinary Counsel’s office to be filed as a grievance. Returning a phone call from CAAP at 1 800 204 2222 ext. 1777 could save a trip to the grievance committee.

Rule 1.04 (a)

A lawyer shall not charge or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

Consider:

1. Time and labor required including difficulty

2. preclude other employment

fee charged

time limitations imposed by client

amount involved and results

nature of the relationship with client

7. experience and ability of the lawyer

8. whether fee is fixed or contingent.

A lawyer may not charge a contingent fee in a criminal case. Rule 1.04 (e).

Rule 1.04(c)

When the lawyer has not regularly represented the client, the basis or the rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. The Rule strongly recommends that a lawyer use a written contract of employment, effective March 1, 2005 which is the most recent change to the Rules, as the other Rules were adopted January 1, 1990.

Non-refundable retainers:

Many lawyers put in their contracts that the fee is a non-refundable retainer fee. The thought is that this would prevent the client for asking for a refund and prevent the client from being able to pursue a grievance if no refund

was made. These types of contracts and employment agreements are not recommended by the State Bar of Texas. One problem is the appearance of overreaching. The court decisions have made it clear this is not an arms length transaction and the client it at a particular disadvantage in the contract negotiation process.

What is a true retainer fee?

A true retainer is not a payment for services. It is an advance fee to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment. If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.

Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) made it clear that simply calling a fee non-refundable does not make it so.

Calling the fee a retainer fee does not change an advance fee into a retainer fee. In that case there was a fee of $15,000.00 that the lawyer then billed against. By billing an hourly rate against the fee collected, the lawyer was demonstrating that in fact it was an advanced fee, not a retainer. Because it was an advance fee for services in the future and it had not been earned at the time of the payment, the fee was required to be placed into a trust. Because the lawyer did not place the money into a trust account, the sanction imposed by the State Bar was appropriate.

In Willie v. CFLD, 2014WL586226, (Tex. App. Houston 1st Dist. 2014) the Court of Appeals affirmed the Cluck decision stating that a fee is not earned simply because the contract stated that it was non-refundable. Because the fee was to be billed against, it was an advance fee that must be deposited into a trust account.

Trust Account Violations Rule 1.14(a):

A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be kept in a separate account, designated as a trust or escrow account. Complete records of such account funds shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Unearned fees must be placed into a trust account.

Ethics Rule 611 further complicated the issue of non-refundable retainers deposited into an operating account by stating that the Rules of Professional Conduct prohibit such arrangements if the fee charged includes payment for the lawyer’s services on the matter up to the time of trial. The Professional Ethics Committee for the State Bar of Texas decided that such an agreement would be a payment for future services, and as such, an advanced fee which must be deposited into a trust account. The fee can only transferred to the operating account when earned under the terms of the agreement with the client. See State Bar Journal November 2011 p. 944

The Ethics opinions are not binding on the Supreme Court, but they are used by the State Bar as presuasive arguments in grievance matters. According to Larry Boyd’s paper written for the State Bar “Mythology of Nonrefundable flat fees” in which he presents an excellent analysis of Ethics Opinion 611, he writes that the opinion creates an “absolute prohibition of non-refundable flat fees”.

Duty upon termination and Duty to Return the file

Rule 1.15(d)

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. The Texas Rule is that the file belongs to the client. Upon request and/or termination, the file must be returned to the client. If the lawyer wishes to make a copy and retain one for himself, he is responsible for making the copy. This section also results in a lot of sustained grievances against lawyers who mistakenly believe that they can hold the file hostage for payment of attorney’s fees. Ethics Opinion 610 says that it is not proper to include in the employment contract a statement that there will be a lien on the file for attorney’s fees as rule 1.08 (h) prohibits a lawyer from acquiring a proprietary interest in the cause of action.

However, in order to prove an ethical violation, there must be evidence that the retained file prejudiced the client in the subject matter of the representation. Weiss v. CFLD. 981 S.W.2d 8 (Tex. App. San Antonio 1998).

Many questions have arisen about the effect of the Michael Morton Act,

that amended Article 39.14 Code of Criminal Procedure, effective January 1, 2014. Section (f) specifically states that the attorney representing the defendant “may not allow that person to have copies of the information provided...” The issue has been raised about whether an attorney could face disciplinary action from the State Bar for refusing to turn over an offense report to a defendant, after the defendant requested his file. It is clear that state law prohibits the attorney from making copies of information obtained from the prosecutor’s office. Subsection (g) states that this can not be interpreted to limit an attorney’s ability to communicate with their client within the Texas Disciplinary rules of Professional Conduct, except for information identifying any victim or witness.

Ethics Opinion 570 from 2006 states that the attorney must turn over all notes unless there is a right to withhold a document pursuant to a legal right or the lawyer is required to withhold the document by court order. This opinion would cover any attorney who refuses to turn over discovery to their client as a part of the request for the file. It states that work product and notes of the attorney must be produced, but the attorney can rely on Article 39.14 C.C.P. in refusing to turn over witness statements and offense reports provided to the attorney. This would comport with Section (d) of Article 39.14 C.C.P. which sets out that when a defendant is pro se the State is not required to provide copies as required when an attorney requests discovery. The argument to be made is that this is not “papers and property to which the client is entitled” as the rule sets out, but the last line of the rule is problematic because these documents will be needed by the client.

In 2014 the Professional Ethics Committee of the State Bar of Texas issued Opinion 646. The question presented was whether as a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, a prosecutor may require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyer’s cases. The opinion specifically stated that under the Michael Morton Act, the prosecutor’s office can not demand such conditions for obtaining discovery. The opinion says that the Texas Disciplinary Rules of Professional Conduct require that the prosecutors comply with the Morton Act including making disclosures required by the Act. Unfortunately, the opinion confuses the issue by also stating that a prosecutor is prohibited from requiring the lawyer to not provide copies to their client. In the sentence preceding this statement, the opinion says that Texas now has an “open file” policy and prosecutors can not require lawyers to agree to any restrictions except those provided by the Act. Opinion 646 does not give lawyers the right to turn over copies to the defendant, in violation of Article 39.14, Code of Criminal Procedure.

Another interesting issue came up when the client expressly refused to allow his trial attorney to turn over his file to his appellate/habeas attorney. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) issued a mandamus to prohibit a trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file. The work product belongs to the client because the lawyer is considered the agent of the client.

Perjury

Rule 3.03(a)

A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

A lawyer must refuse to offer evidence that he knows to be false. If it comes from the client, the lawyer is justified in seeking to withdraw from the case. If the lawyer does not withdraw or is not allowed to withdraw, he must advise the client that he can not offer the false evidence and he must advise the client of the steps the lawyer will take if the false evidence is offered. If the lawyer discovers the false evidence after its use, the lawyer must seek to persuade the client to correct the false testimony and if that is ineffective, the lawyer is allowed to reveal confidential information under Rule 1.05 (f) which states a lawyer shall reveal confidential information when required to do so by Rule 3.03 (a)(2), 3.03(b) or by Rule 4.01(b).

Perjury by the criminal defendant

Dealing with the possibility of perjury by a criminal defendant is

complicated by a number of legal issues. The defendant has a due process right guaranteed in the 5th amendment of the U.S. Constitution to present his defense and he has the absolute right to testify, if he chooses. The rules recognize that these rights are attached to the criminal defendant in Rule 1.02(a) (3) which states in a criminal case, the lawyer shall abide by a client’s decision as to a plea to be entered, whether to waive jury trial and whether the client will testify. If the lawyer learns of the proposed perjury prior to trial, and he is unable to dissuade the client from doing so, the lawyer must withdraw from the representation. Rule 1.15.

However, Rule 1.15(c) overrides the ability to withdraw in many criminal cases. It states when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Three possible resolutions have been recognized in the United States. The first would allow the defendant to testify by narrative without any guidance from the lawyer. The second proposal would excuse the lawyer completely from any duty to reveal perjury if the perjury is that of the client. Texas has specifically rejected this option.

The rules in Texas require that the lawyer take reasonable remedial measures which can include disclosing the perjury. A defendant has the right to assistance of counsel, the right to testify and the right of confidential communication. However, the client does not have the right to assistance of counsel in committing perjury. The lawyer is to try and dissuade the client from committing perjury or if it has already occurred, the lawyer must try to get the client to correct the false testimony. This needs to be done in the present of another attorney to document the lawyer’s efforts.

Then the lawyer must file a motion to withdraw under Rule 1.15 (a) (1) alleging the representation will result in the violation of the rules of professional conduct or other law. In the motion, the lawyer should quote the language in either Rule 1.15(b) (2) that the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent or as in Rule 1.15(b)(3) that the client has used the lawyer’s services to perpetrate a crime or fraud or Rule 1.15(b)(7) other good cause for withdrawal exists, including vague ethical considerations.

If the motion to withdraw is denied, the lawyer is permitted to reveal the perjury. 3.03(b) if the efforts are unsuccessful, the lawyer shall take the steps to remedy including disclosing the true facts. This should be done to the tribunal and then the lawyer must abide by the decision of the court. Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) ruled that the lawyer was excused from the rules of confidentiality and he could reveal potential perjury to the court in order to prevent a fraud on the court.

Nix v. Whiteside, 106 S.Ct. 988 (1986) involved a murder defendant who complained that his lawyer threatened to withdraw and inform the court, if he took the stand and committed perjury. On appeal he alleged ineffective assistance of counsel and a denial of his 6th amendment right to counsel. The Supreme Court held that the attorney had acted properly in threatening both to withdraw and to disclose the perjury, as the right to testify does not include the right to testify falsely and the right to counsel does not include the assistance of counseling committing perjury. The Court specifically found that there was no breach of the lawyer’s professional responsibility.

Perjury is such an obvious and flagrant affront to the judicial proceedings, that the Court of Criminal Appeals has held in Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) that a defendant could be compelled to testify, violating his 5th Amendment rights, and then prosecuted for perjury if he lied. His statements made in violation of his 5th Amendment rights could be admitted at his perjury trial.

Advising a Witness to Avoid a Subpoena

A lawyer can not advise a lawfully subpoenaed witness to not appear in court. Rule 3.04 states that a lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence....or counsel or assist another to do any such act.

(b) falsify evidence, counsel or assist a witness to testify falsely.....

(e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.

Rule 3.04(c)(5) states that in representing a client before a tribunal the lawyer shall not engage in conduct intended to disrupt the proceedings.

§36.05 of the Texas Penal Code, Tampering with a witness: A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding: (1) to testify falsely;

(2) to withhold any testimony, information, document or thing, (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or

(5) to abstain from, discontinue, or delay the prosecution of another. Article 24.04 of the Code of Criminal Procedure sets out how a subpoena can be served:

(1) reading the subpoena in the hearing of the witness;

(2) delivering a copy of the subpoena to the witness;

(3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or

(4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

It is both unethical and under the above circumstances illegal for an attorney to advise a subpoenaed witness not to appear in court. Rule 8.04(a) A lawyer shall not (4) engage in conduct constituting obstruction of justice.

The comments to the Rules of Disciplinary Procedures discuss that fair competition in the adversary system is secured by prohibitions against improperly influencing witnesses.

Conflicts of Interest

Rule 1.06 Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person’s interest are materially and directly adverse to the interest of another client of the lawyer or the lawyer’s firm; or

(2) reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interest.

(c)A lawyer may represent a client in the circumstances described in (b) if:

(1) the lawyer reasonably believes the representation of each client will not be materially affected; and

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Comment 2 to Rule 1.06 gives guidance as to the meaning of conflict of interest. The term opposing parties as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless the client’s fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer’s representation will be reasonably protective of that client’s interest.

Comment 3 recommends that ordinarily a lawyer should decline to represent multiple defendants in a criminal case due to the grave potential for conflict of interest. Comment 8 on fully informed consent recommends that the disclosure of the conflict of interest and the consent be in writing, though it is not required. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Most believe that having sex with clients is an automatic conflict of interest.Though technically difficult fit under this Rule, this behavior will cause the State Bar to take a heightened view of any Rule violation however minor Comment 4 to the Conflict Rules discusses the conflict that may occur with a client and the lawyer’s own interests (insert sexual interest at this point) and how it can cause a lawyer to not be able to consider, recommend or carry out the appropriate cause of action for one client because of his/her own interests. This results, for example, in a client alleging a lawyer did not conclude the representation in a timely manner in order to continue the sexual relationship. This would be a violation of Rule 1.06(b)(2).

Sometimes the clients who have engaged in sexual relationship with their attorney will claim a violation of Rule 1.08(h). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client… {with some exceptions that do not apply here}. The scenario that the aggrieved client can allege is that the attorney proposed marriage, thereby potentially giving the attorney an interest in the cause of action. All of which forces the State Bar’s Office of Disciplinary Counsel to investigate the private life of the attorney.

After years of debate, planning and discussion that began in 2003, the

Bar recommended in 2010 to attorneys that the Rules be amended to specifically prohibit sex with clients, to bring Texas in to conformity with almost every other state. On February 17th, 2011, the lawyers of the State of Texas voted to reject the proposal, so there is still no specific Rule prohibiting sexual relations with clients, other than common sense.

New Rule 6.05 approved in 2021, makes it clear that if an attorney engages in representation on a limited pro bono basis, or for a nonprofit, there is no imputed conflict of interest and Rules 1.06, 1.07 and 1.09 do not prohibit the representation.

Ethics Committee Opinion NO. 690

A prosecutor requested an ethics opinion from the State Bar’s Professional Ethics committee on whether a defense lawyer violated the Rules of Professional Conduct by failing to turn over tangible evidence from the lawyer’s client, when requested. The prosecutor alleged that the Rule 3.04(a) requires the lawyer to not obstruct another party’s access to evidence and rule 8.04(a)(4) prohibits a lawyer from engaging in conduct constituting obstruction of justice.

The facts were that the lawyer went to jail to visit his client and the client gave him several letters written to the client from the victim in the case containing relevant information. The prosecutor asked to inspect the letters and the lawyer refused, only allowing inspection after being ordered to do so by the court after a hearing.

The Committee correctly notes that there is no authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime, so that this would not violate Rule 8.04. They also note that there is no discovery process in Texas that allows the State to obtain evidence from a criminal defendant, so that maintaining custody of ordinary evidence would not be unlawful and therefore not violate Rule 3.04(a).

The Committee recognizes that there are types of special criminal evidence that the lawyer has a self executing obligation to turn over. Generally this type of evidence includes contraband, the instrumentalities of a crime, or the fruits of a crime. Examples are illegal narcotics, a murder weapon, and stolen property. The rationals for such duty are that (1) possession by anyone is illegal, (2) prepare the client’s defense does not reuqire the lawyer to possess the evidence and (3) any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) held that the trial court properly compelled the defense lawyer to turn over maps of the location of the kidnapped child received from the client when the child might possibly still be alive, but the Court noted that neither the client’s communication

to the attorney nor the attorney’s communications to law enforcement could be admitted at trial.

The Committee comes to correct conclusion that the lawyer did not violate any of the Rules of Professional Conduct. The lawyer had no obligation to turn over this ordinary tangible evidence to the prosecuting attorney. The Committee goes on to state that the lawyer also had no obligation to accept custody of the evidence, and assuming that the lawyer knows the client won’t destroy the evidence, the Committee’s view is that the prudent course is for the lawyer to decline the client’s request to accept custody of the evidence relate to an alleged crime.

LAWYERS CONVICTED OF CRIMES/COMPULSORY DISCIPLINE

8.01 of the Rules of Disciplinary Procedure:

When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication.

Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary.

Rules. Rule 8.04(a)(2) A lawyer shall not commit a serious crime or commit any other criminal act that reflect adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects. Serious crime is defined as barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy or solicitation of another to commit any of the foregoing crimes. Possession of cocaine, is not a serious crime for which a lawyer can receive a compulsory discipline based upon the sentence alone of probation, deferred adjudication, or a final conviction. In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001).

During compulsory discipline proceedings, the Board of Disciplinary Appeals decides if a lawyer has been convicted or placed on deferred adjudication for an intentional crime, which is defined as a serious crime in 8.04(b). The Board shall disbar the lawyer unless the Board suspends the license during the term of probation. Rule 8.05 and 8.06 of the Texas Rules of Disciplinary Procedure.

8.05 Disbarment:

When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, suspends his or her license to practice law.

8.06 Suspension:

If an attorney’s sentence upon conviction of a serious crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a serious crime, the attorney’s license to practice law shall be suspended during the term of probation. If the probation is revoked, the attorney shall be disbarred.

Duty to report:

8.03 was amended in 2018 to require that an attorney convicted of or placed on deferred adjudication by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement,or fraud, or reckless misappropriation of money, or property, including a conviction or sentence of probation for attempt, conspiracy, or solicitation, must report the conviction or deferred adjudication to the State Bar of Texas. The lawyer must also notify the CDC when the lawyer has been disciplined by an attorney regulatory agency of another jurisdiction. Notice must be given within 30 days. New rule 8.03(f) approved in 2021 requires notice of any sanction imposed on the lawyer in federal court or by a federal agency, except a letter of warning or admonishment.

Rule changes adopted 2021:

Rule 1.16 in reference to diminished capacity was amended at the proposal of the probate lawyers. It allows a lawyer to consult with family members, other providers concerning the mental health of a client, and if the lawyer chooses to do so, there is no confidentiality violation. If a lawyer has a reasonable belief that a client maybe suicidal, the lawyer may, but is not required to, seek treatment, or outside help without the lawyer violating any confidences of the client.

The advertising rules were substantially re written to allow Tradenames to be used and to address probono programs, and social media. Rule 7.01 was amended to address constitutional distinctions of those substantially motivated by puncuniary interests, so that non profits are not covered.

What to do if a grievance is filed

THE GRIEVANCE SYSTEM

The Supreme Court of Texas has the power to regulate the practice of law as set out in the Texas Constitution. The statutory authority to regulate the practice of law is established in the State Bar Act which directs the State Bar to establish disciplinary and disability procedures. The Supreme Court has adopted the Texas Disciplinary Rules of Professional Conduct (TDRPC) which are the substantive ethics rules.

The Texas Rules of Disciplinary Procedure (TRDP) sets out the procedural grievance process. The Commission for Lawyer Discipline (CFLD) is a permanent committee of the State Bar comprised of 12 members, 6 attorneys and 6 public members. The CFLD is the client for all complaints not dismissed by a summary disposition panel. The Commission reviews the structure, function and effectiveness of the discipline system and reports to the Supreme Court and the Board of Directors.

CFLD monitors and evaluates the Chief Disciplinary Counsel (CDC). The CDC administers the attorney disciplinary system. The CDC reviews and screens all information relating to misconduct. It rejects all inquiries and investigates all complaints to determine just cause. CDC recommends dismissal of complaints to the Summary Disposition Panels. CDC is accountable only to the Commission for Lawyer Discipline.

The District Grievance Committees are divided into state geographic disciplinary districts. They act through panels of 2/3 attorneys and 1/3 public members. The local grievance committees conduct summary disposition dockets, investigatory and evidentiary hearings.

INVESTIGATION

If the grievance is determined to be a Complaint, the Respondent (attorney) shall be provided a copy of the complaint with notice to respond in writing to the allegations. The Respondent shall deliver the response to both the CDC and the Complainant within thirty days of the receipt of the notice.

No more than sixty days after the date by which the Respondent must file a written response to the Complaint, the chief Disciplinary Counsel shall investigate the complaint and determine whether there is Just Cause. Rule 2.12 TRDP. A Just Cause finding is made if a reasonably intelligent and prudent person would believe that an attorney has committed one or more acts of

professional misconduct requiring that a sanction be imposed. If the CDC determines that Just Cause does not exist, they shall place the complaint on a Summary Disposition Panel docket. This is presented to the local grievance committee without the appearance of the Respondent (attorney) or the Complainant. There is no appeal from the Panel=s determination that the complaint should be dismissed. If they fail to dismiss the complaint, it shall be placed on a hearing docket.

At this stage of the investigation the CDC may issue subpoenas in accordance with Rule 21a of the Texas Rules of Civil Procedure. The Respondent, attorney or witness must present any objection to the chair of the Investigatory Panel, if one is set, or to the Committee Chair. The CDC may seek enforcement through district court.

INVESTIGATORY PANELS

The Chief Disciplinary Counsel may set a Complaint for an investigatory hearing. It is a nonadversarial proceeding that may be conducted by teleconference. The chair of the Investigatory Panel may administer oaths and may set forth procedures for eliciting evidence, including witness testimony. Witness examination may be conducted by the Chief Disciplinary Counsel, the Respondent, or the Panel. An investigatory hearing is strictly confidential and any record may be released only for use in a disciplinary matter. An investigatory hearing may result in a Sanction negotiated with the Respondent or in the Chief Disciplinary Counsel’s dismissing the Complaint or finding Just Cause. The terms of a negotiated Sanction must be in a written judgment with findings of fact and conclusions of law. The judgment must be entered into the record by the chair of the Investigatory Panel and signed by the Chief Disciplinary Counsel and the Respondent.

JUST CAUSE

If the investigatory panel hearing does not resolve the complaint and the CDC or the investigatory panel has determined Just Cause exists, they shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and the Rule of Professional Conduct that the CDC contends has been violated.

RESPONDENT=S ELECTION

A Respondent who has been give notice of the allegations and Rule violations complained of must serve the CDC with his Election of District Court or an Evidentiary Panel of the Grievance Committee. The Election must be in writing and it must be served upon the CDC no later than twenty days after the

receipt of the notice of the allegations. Failure to timely elect shall conclusively be deemed as an election to proceed before the evidentiary panel of the local grievance committee.

GRIEVANCE COMMITTEE

If the Respondent elects or defaults by failing to timely elect, the hearing will be held in front of the local grievance committee. A Private Reprimand is only available at this proceeding and is not available if the Respondent elects a district court proceeding. The CDC must file a petition within 60 days of the election deadline. All proceedings are confidential, and the burden of proof is on the CFLD by a preponderance of the evidence. Respondent must be served with the petition by certified mail or other means permitted by the Rules of Civil Procedure. Respondent must file an answer to this petition.

The committee can dismiss and refer the matter to CAAP (Client Attorney Assistance Program). The grievance committee can find that the Respondent suffers from a disability and refer the case to BODA (Board of Disciplinary Appeals) or they can find professional misconduct and impose sanctions. There is a separate hearing on sanctions. Sanctions can include private reprimands, public reprimands, probation, suspension or disbarment. CFLD or Respondent has the right to appeal the decision to BODA, but the complainant does not. Judgment of disbarment cannot be stayed.

DISTRICT COURT PROCEEDINGS

The Texas Rules of Civil Procedure apply and the CDC files a petition on behalf of the CFLD with the Supreme Court. The Supreme Court appoints a judge who does not reside in Respondent=s administrative district. The Respondent may request a jury trial, and like the Evidentiary Proceeding the Respondent once served with the petition must file an answer. If misconduct is found, the judge determines the appropriate sanction. A Private Reprimand is not available and the court retains jurisdiction to enforce its judgments. A final judgment of the district court is appealed as in any other civil case. A judgment of disbarment or order revoking probation can not be stayed.

For more explicit details of the procedures used in District Court or in the local grievance committee hearings, see the Texas Rules of Disciplinary Procedure that can be found online at Texasbar.com

Grievance Referral Program

To participate in the program, the lawyer must meet certain

eligibility criteria and agree to meet with the program administrator for an assessment of the issues that need to be addressed. The lawyer must agree in writing to complete specific terms and conditions, including restitution if appropriate, by a date certain and to pay for any costs associated with those terms and conditions. If the lawyer agrees to participate and completes the terms in a timely manner, the Office of Chief Disciplinary Counsel will recommend to the Commission for Lawyer Discipline that the underlying grievance be dismissed. If the lawyer does not fully complete the terms of the agreement in a timely manner, the underlying grievance will move forward through the usual disciplinary process.

Criteria for Referral:

Respondent Attorney has not been disciplined within the prior 3 years.

Respondent Attorney has not been disciplined for similar conduct within the prior 5 years.

Misconduct does not involve misappropriation of funds or breach of fiduciary duties.

Misconduct does not involve dishonesty, fraud or misrepresentation.

Misconduct did not result in substantial harm or prejudice to client or complainant.

Respondent Attorney maintained cooperative attitude toward the proceedings.

Participation is likely to benefit respondent attorney and further the goal of protection of the public.

Misconduct does not constitute a crime which would subject respondent attorney to Compulsory Discipline under Part VIII of the Texas Rules of Disciplinary Procedure.

Important Numbers at the State Bar:

Client Attorney Assistant Program:

1 800 204 2222 Ext. 1777

Ethics Hotline

1-800-532-3947

Law Office Management

Lawyers Assistance Program

1 800 343 8527

Advertising Review

1-800-566-4616

Texas

Defense Lawyers

Stuart Kinard Advanced DWI

2022 The Menger Hotel 204 Alamo Plaza San Antonio, TX 78205

Topic: Case Law

Speaker: Michael Gross 1524 N Alamo St, San Antonio, TX 78215 (210) 354 1919 Phone (210) 354 1920 Fax bettyblackwell@bettyblackwell.com Email www.bettyblackwell.com Website

::

DWI CASE LAW UPDATE

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

18th Annual Stuart Kinard Advanced DWI Texas Criminal Defense Lawyers Association San Antonio, Texas November 3-4, 2022

GROSS & ESPARZA, P.L.L.C.

1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919

MICHAEL C. GROSS CURRICULUM VITAE

EDUCATION

B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987

PROFESSIONAL ACTIVITIES AND RECOGNITIONS

Judge Advocate, U.S. Marine Corps, 1988-1992

Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996

Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012

Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present

Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997

Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995

Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011

President, Texas Criminal Defense Lawyers Association, 2011-2012

President, San Antonio Criminal Defense Lawyers Association, 2011-2012

Board of Disciplinary Appeals, Vice Chair 2021-present, Member 2018-present Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008

Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009

Named in Best Lawyers in America, 2005 - 2021

Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017

Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021

Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014

Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021

Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble

COURT ADMISSIONS

Supreme Court of the United States, 1991

Supreme Court of the State of Texas, 1987

United States Court of Appeals for the Armed Forces, 1990

United States Court of Appeals for the Fifth Circuit, 1990

United States Court of Appeals for the Tenth Circuit, 1998

United States District Court for the Northern District of Texas, 1990

United States District Court for the Southern District of Texas, 1991

United States District Court for the Eastern District of Texas, 1991

United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS

I Statues Update Effective 9-1-19 1

A. DWI deferred available for MB DWI after 9-1-19

B. Ignition interlock is now mandatory for DWI deferred adjudication

C. Surcharge is now a fine upon conviction .

D. Nondisclosure for DWI deferred. . . .

E. ODL supervision by pretrial services authorized . . .

1

1

1

1

F. Ignition interlock required as condition of bond if DWI with child passenger. . . . 1

II ALR Update 2

A. Littlepage and the DIC-24 statutory warning form for the hearing impaired 2

B. Turcios and typographical errors and McNeely violations at ALR level

C. Jaroszewicz and speeding error preservation at an ALR hearing .

III. DWI Update . . .

A. Driving factors and reasonable suspicion to stop . .

1. Leming and reasonable suspicion of DWI for weaving & FMSL. .

2

3

3

3

3

Dugar and FMSL 4

Yoda and speeding 5

Reyes and reasonable suspicion for straddling two lanes

Cortez and touching the fog line is not a traffic violation

Jones and cross white line and swerve within lane is reas susp stop

Bernard and driving on lane divider is not reas susp intox .

Pritchett and stopping in crosswalk/intersection is reas susp stop

Colby and stopping in intersection for officer not reas susp stop.

.

7

8

9

Gonzalez-Gonzalez and disregarding traffic control device is reas susp 10

Rodgers and road rage is prob cause to arrest 10

Torrez and officer incorrectly thought headlight out is reas susp stop 10

Varley and one brake light out but two break lights working is reas susp 11

Speck and failure to signal in optional exit lane is reas susp stop.

Wood and cigarette tossed from car is reas susp stop for littering

Babel and no headlights on 30 minutes after sunset is reas susp

Martinez and partially obscured license plate reas susp stop

Ellis and FBI/DPS database reliable for reas susp stop

Smith and police follow directive to stop car so no reas susp

Binkley and state vehicle insurance database not reliable for stop

Oringderff and 911 call sufficient to stop.

and 911

sufficient

12

Evans and reas suspicion but no prob cause and duration of stop

22

Scott and probable cause to arrest D for traffic offenses 23

Arrington and reas susp to detain b/c cumulative knowledge PO’s 23

Villalobos and warrantless temporary detention in a suspicious place 23

Cagle and 21-minute prolonged investigation is reasonable

Kuether and custody analysis re handcuffs.

Koch and custody v. detention and Miranda

Ivey and not in custody during hospital statement

C. Reading the DIC-24 and observation periods

26

28

1. Dorr and reading obsolete DIC-24 to defendant no affect on consent 28

2. Serrano and 15-minute observation period 29

D. Blood draws without a warrant 30

1. McGruder and 724.012(b)(3)(B) re warrantless blood draw unconst. . . . 30

Mitchell and “almost always” can draw blood from unconscious driver . 30

Ruiz and can draw blood from unconscious person for exigency. . . . . . . 30

Cole and warrantless blood draw proper b/c exigency . . . . . . . . . . . . . . . 31

Cosino and warrantless blood draw proper b/c exigency . . . . . . . . . . . . . 32

6. Couch and warrantless blood draw improper no exigency (FOF/COL) . . 32

Weems and warrantless blood draw improper b/c no exigency 33

McGuire and warrantless blood draw improper b/c no exigency 34

Bonsignore and warrantless blood draw improper b/c no exigency 34

Sanders and warrantless blood draw improper b/c no exigency. . . . . . . . 35

Garcia and warrantless blood draw improper FOF/COL; evid destroy . . 36

Bell and warrantless blood draw improper b/c no exigency or consent . . 37

Colura and warrantless blood draw improper b/c no consent . . . . . . . . . 38

Fears and warrantless blood draw improper; delay/anger/no exigency . . 38

Perez and warrantless blood draw improper; PO’s good faith insuff 39

Molden and warrantless blood draw improper; PO’s good faith insuff 39

Hill and warrantless blood draw improper; PO’s good faith insuff 40

Swan and warrantless blood draw improper; PO’s good faith insuff . . . . 40

Roop and warrantless blood draw improper; PO’s good faith insuff . . . . 40

Kressin and officer incorrectly thought warrantless blood draw

Martinez and blood seized/tested beyond scope hospital blood draw

Hyland and warrant not required to retest blood.

Crider and

Ramirez and 2d

Davis and length of time

required to

blood

after blood seized

40

Smith and failure to get ruling on Fourth Amendment issue

Huse and the state obtaining medical records for blood & HIPPA

Trigo and right of confrontation regarding intoxilyzer results

Williams and right of confrontation regarding blood analyst

Gore and no right confrontation for blood analyst if only raw data used

Diamond and no Brady viol failure reveal analyst’s error in other case.

Rodgers and flawed felony DWI indictment

Oliva and prior DWI is not an element of DWI 2d.

Meza and must prove 0.15 at time of analysis

Ramjattansingh and 0.15 jury charge

Ashby and TFMPP admissibility

Matamoros and intoxication manslaughter and causation

Burg and must object to improper DL suspension to raise on appeal.

Rodriguez-Cruz and reversible error to deny motion continuance

Bara and double jeopardy with two children in car

Nelson and unanimity . .

Couthren and deadly weapon finding disapproved. .

Moore and deadly weapon finding approved . . . .

57

Mills and deadly weapon finding approved 58

Burnett and same transaction contextual and intox definition 59

Navarro and acquittal for MA DWI not bar to retrial for MB DWI 60

Clement and in-court HGN of D by officer; right vs self-incrimination. . 60

Strehl and lack of proof of prior DWI in felony DWI case. . . . . . . . . . . . 60

Crawford and asleep in veh and state refused stipulate to prior DWI . . . 61

Siddiq and technique of blood draw and recorded jail conversations. . . . 61

Haas and authenticity of prior DWI’s in enhanced DWI case

Corley and retrograde-extrapolation evidence was reliable

Ortiz and absence of retrograde extrapolation and guilty finding

Bowman and IAC for failure get payroll records for impeachment

Voda and speedy trial

Taylor and corpus delecti

Harrell and corpus delecti

Cabral-Tapia and no

NHTSA HGN

Screws and probation conditions in the court’s charge.

Flores-Garnica and ATV

Cook and two children in

Martinez and judge

and

motor vehicle for DWI

sponte

.

I.

Statues Update Effective 9-1-19

A. DWI deferred available for MB DWI after 9-1-19

Article 42A.102 of the Texas Code of Criminal Procedure (TCCP) has been amended effective 9-1-19 for offenses committed after 9-1-19 to allow a judge to grant deferred adjudication for MB DWI but not for DWI with child passenger, flying while intoxicated, operating amusement ride while intoxicated, intox assault, intox manslaughter, DWI while having a CDL or CDL permit, 0.15 or higher, or punishment may be increased under PC49.09.

Article 49.09 of the TCCA has been amended effective 9-1-19 to state that a DWI deferred is treated like a conviction for enhancement purposes.

B. Ignition interlock (II) is now mandatory for DWI deferred adjudication

Article 42A.408 of the TCCP has been amended effective 9-1-19 to state that a judge who grants deferred adjudication for DWI shall require II on vehicle owned by D or vehicle most driven by D and prohibit D from driving vehicle without II. In indigent cases, judge may allow scheduling order for II payments or waiver of installation charge and 50% reduction of monthly monitoring fee.

C. Surcharge is now a fine upon conviction

Surcharges are gone as of 9-1-19 and, pursuant to Tex. Trans. Code § 709.001, a person finally convicted for DWI type offense shall pay a fine of: (1) $3K for first conviction within 36-month period; (2) $4500 for second or subsequent conviction within 36-month period; (3) $6K for first or subsequent conviction if 0.15 or more at time of analysis.

If D produces tax return or recent wages statement or government agency proof of assistance and judge finds that D is indigent, judge shall waive all finds and costs under this section.

D. Nondisclosure for DWI deferred

Tex Gov’t Code § 411 0726 allows for a nondisclosure of a DWI/BWI deferred adjudication 2-years after completion of deferred and discharge/dismissal of case if: (1) the judge did not enter a finding that nondisclosure would not be in the best interest of justice; (2) no new offenses other than a traffic offense; (3) no prior offenses other than a traffic offense; and (4) the State does not present evidence that the offense included an accident involving another person including a passenger.

E. ODL supervision by pretrial services authorized

Tex. Trans. Code § 521.2462 allows a judge granting an ODL to order supervision by pretrial services to ensure compliance with the ODL requirements.

F. Ignition interlock (II) required as condition of bond if DWI with child passenger

Article 17.441(a) of the TCCP now requires II as a condition of bond if the DWI charge includes a child passenger.

Tex. Dep’t of Pub. Safety v. Littlepage, No. 03-14-00194-CV (Tex. App. Austin, July 8, 2016, no writ) (unpublished) - Officer at scene saw D communicating with others by texting in English on his phone. The officer decided to do the same. By texts with the officer, D admitted recently drinking a Blue Hurricane preceded by six beers. Officer also texted questions and instructions to D by writing in English on a notepad, including while administering the SFST’s. Officer structured several questions as yes-or-no choices in which D circled the correct answer. Other questions had elicited written answers from D.

Officer admitted on cross that some of these answers were difficult to understand and had unusual grammatical structure, but officer attributed this at least in part to D’s intoxication. Officer claimed D had appeared to understand and capable of communicating in written English. D did not make any request for an ASL interpreter Officer showed D DIC-24 form at least twice before transporting him to jail. Officer wrote D a note asking whether he would read the DIC-24 form, providing as before “yes” and “no” answers for him to circle and also wrote D a note explaining the statutory warnings in the form. D then became uncooperative, glanced over the form, but refusing to respond to the question posed. Instead, D then wrote he wanted a phone call and “something (un-legible) about a deaf law.”

At jail, officer again provided D a copy of the DIC-24 form. D refused to read the form and further refused to provide an answer on a portion of the form inquiring whether he was refusing the breath-sample request. Based on this conduct, officer concluded D was

refusing to provide a breath specimen and confiscated his driver’s license.

At the hearing, D emphasized the text of Section 724.015, which states that “the officer shall inform the person orally and in writing” of the statutory warnings before requesting the specimen. Because ASL is the equivalent of an oral communication for a deaf person, D argued officer failed to comply with Section 724.015.

Court stated, however, that the law requires only that a driver “was requested to submit to the taking of a specimen” and “refused to submit to the taking of a specimen on request of the officer.” The ALJ could reasonably have inferred that D was able to read and understand written English and even to communicate responsively in writing. The ALJ had a reasonable basis to infer that D’s conduct reflected D understood the nature of the request being made and the statutory warnings and refused through inaction to comply. It was sufficient that D received and could read the written warnings, and D presented no evidence to dispute the reasonable inference that D understood warnings the officer twice provided for him and the additional explanation that the officer provided.

B. Turcios and typographical errors and McNeely violations at ALR level

Tex. Dep’t of Pub. Safety v. Turcios, No. 13-14-00332-CV (Tex App. - Corpus Christi, June 9, 2016, no writ) (unpublished)

ALJ suspended D’s driver’s license finding, in part, that D’s vehicle had a “non-working from headlight” and D refused a breath test rather than a blood test.

D appealed ALJ’s suspension order to county court claiming: (1) there was no evidence that his vehicle had a “non-working from headlight” as the ALJ stated; (2) there was no evidence that D refused to provide a “breath” specimen as the ALJ stated; and (3)

A. Littlepage and the DIC-24 statutory warning form for the hearing impaired

the ALJ’s decision violated McNeely.

Court held that, regardless of a typographical error “from” headlight by ALJ, the officer’s report stated D was stopped for driving with a defective “front” headlight and D admitted at ALR hearing that a headlight was out. No prejudice from ALJ misstating in FOF that D refused a breath test rather than a blood test.

No Fourth Amendment issue in an ALR hearing based on refusal to submit a blood test, because the mere suspension of a driver’s license does not implicate the driver’s expectation of privacy. The Court held that McNeely strongly suggests the Supreme Court did not intend to prohibit ALR hearings as a legal tool to enforce drunk driving laws. McNeely does not directlyaddress whether the Fourth Amendment forbids the State to administratively suspend a driver’s license for refusing a blood draw, but the plurality opinion stated such an administrative suspension based upon refusing a blood draw is a constitutionally permissible “legal tool” to further the State’s interest in preventing drunk-driving. The county court erred by finding the ALJ’s suspension order violated McNeely

C. Jaroszewicz and speeding error preservation at an ALR hearing

Jaroszewicz v. Tex. Dep’t of Pub. Safety, No. 03-15-00340-CV (Tex. App.Austin, August 26, 2016, no writ) (unpublished) - D’s attorney at ALR hearing did not provide any basis for the objection to the challenged evidence of speeding prior to its admission other than to identify the objectionable areas of the officer’s affidavit “wherein the officer states that he is – his visual ability to determine an excessive rate of speed and also wherein he states he used radar to determine the actual speed ” Counsel also did not provide any rule of evidence or other authority to support the exclusion of this

evidence until after both parties rested and during closing arguments.

Raising the specific objections for the first time during closing argument is untimely and fails to preserve error. On appeal, D claimed evidence of vehicle’s speed clocked by radar was not admissible and that the non testifying officer’s written legal conclusion that D was speeding, without more, also was inadmissible. D claimed an absence of Kelly evidence to show officer’s knowledge and experience of the radar unit, how it operated, whether he calibrated it or knew how to calibrate it, whether he tested it or knew how to test it, or how long he had been using radar to detect speed, if ever. D claimed that without the radar results, the officer’s observation and estimate of rate of speed was a mere hunch or suspicion.

Court held that DPS is not required to show that D was actually speeding to justify the officer’s traffic stop, but only that the officer reasonably believed D was speeding.

III. DWI Update

A. Driving factors and reasonable suspicion to stop

1. Leming and reasonable suspicion of DWI for weaving within lane & FMSL

Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) - Officer (and also on dash cam video) saw Jeep traveling unusually slowly, swerving, nearly strike the curb twice, and continued to drift back and forth within its lane. This corroborated tip from caller to dispatch.

TCCA held that officer had reasonable suspicion to stop D’s vehicle to investigate the offense of FMSL even if officer could not quite tell whether D had actually entered adjacent lane because officer saw D drive on the divider stripes and several times came

close to entering the adjacent lane. Under Tex. Transp. Code Ann. § 545.060, it is an offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.

The TCCA held it need not decide if driving on the divider stripes constitute a failure to stay “entirely within” a designated lane because, “for a peace officer to stop a motorist to investigate a traffic infraction, as is the case with any investigative stop, ‘proof of the actual commission of the offense is not a requisite.’” The officer had an objectively reasonable basis to suspect D was intoxicated because a partially-identified informant saw vehicle swerving from side to side and the officer corroborated the observation.

The question is whether officer had an objectively reasonable basis to suspect driver of the Jeep to be intoxicated. The Supreme Court stated that observation of “dangerous behaviors” such as weaving back and forth across the roadway and crossing the center line “would justify a traffic stop on suspicion of drunk driving.” Navarette v. California, 134 S.Ct. 1683 (2014). Even though such behavior “might also be explained by, for example, a driver responding to an unruly child or other distraction[,]” the Supreme Court has “consistently recognized that reasonable suspicion need not rule out the possibility of innocent conduct.” Id.; see Woods v. State, 956 S.W.2d 33 (Tex Crim. App. 1997) (“[T]he ‘as consistent with innocent activity as with criminal activity’ construct is no longer a viable test for determining reasonable suspicion.”). “It is, after all, only an ‘investigative’ detention. So long as the intrusion does not exceed the legitimate scope of such a detention and evolve into the greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will tolerate a certain degree of police proaction.” Derichsweiler, 348 S.W.3d

at 916. “Reasonable suspicion depends on the factual and practical considerations of everydaylife on which reasonable and prudent men, not legal technicians, act. Under that commonsense approach, we can appropriately recognize certain driving behaviors as sound indicia of drunk driving.” Navarette.

TCCA held that officer in this case “had an objectively reasonable basis to justify at least a temporary detention to investigate the cause of Appellant’s unusual driving, even if Appellant’s ‘erratic driving’ (as the trial court aptly characterized it) might ultimately have proven to derive from some other, innocent cause.” “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.”

Jaganathan v. State, 479 S.W.3d 244 (Tex. Crim. App. 2015) (quoting United States v. Arvizu, 534 U.S. 266 (2002)). “The possibility of an innocent explanation does not deprive the [detaining] officer of the capacity to entertain reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal[.]” Woods, supra

Even had officer’s investigative detention of D “ultimately failed to uncover signs of inebriation, the stop would nevertheless have served the salubrious function to alert Appellant, if he did not already know, that his driving was erratic enough whatever the cause – to raise suspicion of drunk driving, alarm fellow motorists, and potentially endanger himself and others.”

2. Dugar and FMSL

The FMSL statute, Tex Transp. Code Ann. § 545.060(a), provides that an operator on a roadway divided into two or more clearly marked lanes for traffic “shall drive as nearly

as practical entirely within a single lane” and may not move from that lane unless the movement can be made safely In Dugar v. State, 629 S.W.3d 494 (Tex App. - Beaumont 2021, pet. ref’d), the court of appeals addressed the situation where a driver was stopped for FMSL but the defendant argued in a motion to suppress that he did not cross the lane divider and there was no proof his vehicle movement was unsafe as required by 545.060(a) The court of appeals stated that the law on this issue is unsettled given the split in the lower courts after Leming. The court cited Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) in holding that, because “reasonable differences of opinion exist about how the maintain-a-single-lane statute applies,” the trial judge did not err in denying the motion to suppress because any mistake by the officer regarding what constituted FMSL, the officer’s mistake was one that was objectively reasonable.

3. Yoda and speeding

In Yoda v. State, 630 S W 3d 470 (Tex App. Eastland 2021, pet. ref’d), an officer was stopped at an intersection and saw a car driving at a high rate of speed in a 45 mile per hour zone at approximately 2:15 a.m. The officer pursued the car, and it took awhile to catch up to the car after the officer sped up to about 73 miles per hour. The officer believed, based upon his personal driving experiences, the driver was traveling at about 60-70 miles per hour. The officer was not qualified to use radar to determine speed and had no scientific method to determine the car’s speed. He admitted he could not issue a speeding ticket because he did not know the exact speed of the car. He also admitted he was not trained to tell if a car is speeding based upon a side vantage perspective. After the traffic stop, the officer eventually arrested the driver for DWI. The defendant filed a

motion to suppress claiming the officer lacked reasonable suspicion to conduct a traffic stop for speeding The court of appeals stated that the officer’s opinion of the speed “allowed the trial court to view the opinion as an estimate and not a precise mathematical calculation of Appellant's speed.” Because the trial judge chose to believe the officer’s testimony, the court of appeals was required to “give the trial court’s ruling almost complete deference given that the trial court had the right to decide whether [the officer] was a credible witness.” The court of appeals held that the officer was not required to know the exact speed of the car in order to form a reasonable suspicion to believe the defendant was speeding over the posted limit. “A reasonable suspicion determination ‘need not rule out the possibility of innocent conduct.’” Leming v. State, 493 S.W.3d 552, 565 (Tex Crim. App. 2016)). The trial court did not err in denying the motion to suppress.

Article 38.23 of the Texas Code of Criminal Procedure requires the exclusion of evidence if the State obtained the evidence by violating the law. If there exists a genuine dispute about a factual issue regarding whether police conduct was illegal, Article 38.23(a) requires a trial judge to submit to the jury an instruction telling the jury that “if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, . . . [it must] disregard any such evidence so obtained.” To demonstrate the existence of a genuine dispute about a material fact issue, a defendant must show: (1) the evidence before the jury raises a fact issue; (2) the fact issue is affirmatively contested; and (3) the fact issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Absent a genuine dispute about a material fact issue, the legality of the challenged conduct is a question of law determined by the trial judge. If other undisputed facts establish the lawfulness of

the conduct, there is no materiality on the contested factual issue, and the defendant is not entitled to a 38 23 jury instruction. A defendant’s questions on cross-examination cannot, by themselves, raise a disputed fact issue, but the witness' answers to those questions might raise a fact issue. If the officer’s opinion of speeding in this case was contradicted by another witness or the defendant that there was no speeding, or if the officer on cross examination had stated the defendant was not speeding, this would have been a genuine dispute about a material fact issue requiring a 38.23 instruction. “As suggested by the Texas Court of Criminal Appeals in Hamal v. State, a factual dispute requires an Article 38.23 instruction if it is about what an officer ‘did, said, saw, or heard.’ 390 S.W.3d 302, 307 (Tex Crim. App. 2012). In this case, there is no factual dispute about what [the officer] did, said, saw, or heard. The only dispute is as to his opinion that what he saw constituted obvious speeding thereby providing a reasonable suspicion.” Because there was no genuine dispute about a material fact issue, the defendant was not entitled to a 38.23 instruction.

4. Reyes and reasonable suspicion for straddling two lanes

Reyes v. State, No. 603 S.W.3d 543 (Tex. App. - El Paso 2020, no pet.) - The only basis offered by the State for the officers’ stop of D’s vehicle was that the officers had a reasonable suspicion that D violated Section 545.060 of the Texas Transportation Code. That section provides, in pertinent part: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely Road on which D driving was divided into three clearly marked lanes for traffic, and D straddling the line between two lanes.

The question here is whether, having shown a violation of Section 545.060(a)(1) –failure to maintain a single lane the State was also required to show a violation of Section 545.060(a)(2) D’s movement from a single lane was unsafe. D argued Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet ref’d), that “a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely ” Id The State argued the plurality case of Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) (plurality op.). “That plurality examined the reasoning of the Hernandez court, expressly rejected its interpretation of Section 545.060, and held instead that ‘it is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.’” Id. “Ordinarily, a holding of the Texas Court of Criminal Appeals would be dispositive, and our analysis would end here. However, because Leming is a plurality opinion, it is not binding authority.”

“We are faced, then, with the following situation concerning the central issue in this appeal: (1) the bulk of our prior opinions on the issue are not binding precedent because they are unpublished; (2) our one published opinion on the subject lacks independent analysis of the issue; and (3) the plurality opinion in Leming (the only case from the Texas Court of Criminal Appeals addressing the issue) is not binding precedent and has generated uncertainty among the courts of appeals [citations omitted].” The COA conducted an independent analysis and concluded that Officers saw D straddling two lanes of the roadway and “not choosing a lane for a good amount of distance.” This testimony is sufficient to establish reasonable

suspicion that D violated Section 545 060(a)(1) and therefore sufficient to support the trial court’s denial of D’s motion to suppress.

5. Cortez and touching the fog line is not a traffic violation

Cortez v. State, 543 S.W.3d 198 (Tex. Crim. App. 2018) Despite a DPS Trooper’s testimony that the D’s van purportedly touched the white painted “fog line” separating the roadway from the shoulder, the Court of Appeals was justified in affirming the trial court’s determination that the Trooper was not objectively reasonable in his belief that a violation of the law had been committed. It is not clear that the van even touched the fog line. “‘Driving is an exercise in controlled weaving It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.’ Even a driver who is sober, alert, and careful may occasionally drift within their lane only because the roadway surface is not perfectly smooth.”

A traffic violation occurs if a car drives on an improved shoulder. An officer has reasonable suspicion to stop a car that drives on an improved shoulder if such driving was not necessary to achieve one of the seven approved purposes for so driving or such driving was unsafe. A car does not “drive on an improved shoulder” if it does not cross over the fog line onto the shoulder. “[M]omentarily touching the fog line does not constitute driving on the improved shoulder.”

The statute’s definition of “shoulder” does not include the term “fog line” or mention the line separating the shoulder from the roadway. The TCCA refused to interpret 545.058(a) as saying touching the fog line constitutes driving on the improved shoulder. “Criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.” The TCCA stated it has

“a duty to narrowly construe statutes to avoid a constitutional violation.” 545.058(a)(3) allows a driver to drive on an improved shoulder “to decelerate before making a right turn.” D clearly intended to exit the highway and turn right, so D “was statutorily permitted to drive on the improved shoulder for that brief period of time.”

6. Jones and cross white line and swerve within lane reas susp to stop

Jones v. State, No. 14-15-00612-CR (Tex. App. Houston [14th Dist.], November 22, 2016, no pet.) (unpublished) - Officer saw (as did dash cam) D’s car weaving erratically at 2:35 a.m. and testified that he normally encounters intoxicated drivers after midnight. Officer saw D’s car swerve within its lane and cross the white line, so officer stopped D and started DWI investigation. The erratic driving made him concerned that the driver was intoxicated or otherwise impaired. This evidence was sufficient to give officer reasonable suspicion that D was intoxicated, justifying the stop. “The possibility of an innocent explanation for unusual driving behavior does not deprive an officer from having reasonable suspicion to investigate the possibility of criminal conduct, such as intoxicated driving.” See Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). “Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.” Id. Officer had reasonable suspicion that D was intoxicated or impaired, justifying a temporaryinvestigative detention. See id. at 564 (holding that the officer had reasonable suspicion to investigate potential intoxication when the vehicle drifted back and forth within its lane below the posted speed limit; agreeing with the trial court's characterization of the driving as "erratic");

Miller v. State, 418 S.W 3d 692 (Tex App. Houston [14th Dist.] 2013, pet. ref’d) (officer

had reasonable suspicion to investigate potential intoxication when the vehicle “straddled” the line dividing two lanes for a few seconds); Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007) (officers had reasonable suspicion when the defendant’s car weaved “in and out of its lane several times, over a short distance, late at night”).

7. Bernard and driving on lane divider is not reas susp intoxication

State v. Bernard, 512 S.W.3d 351 (Tex. Crim. App. 2017) - At 2:30 a.m., officer saw D’s car swerving from lane to lane and going into center lane. Officer did traffic stop and D arrested without a warrant for DWI. The officer then obtained search warrant for a blood draw D claimed the stop and subsequent arrest were without a warrant and without probable cause. The trial court granted motion suppress with findings that: (1) officer stopped D without reasonable suspicion of DWI; and (2) D was not driving in unsafe manner and there was no reasonable suspicion of a traffic offense at the time of stop. TEX. TRANSP. CODE § 545.060(a) sets forth how a driver must drive on a roadway with traffic lanes. The State appealed and claimed two arguments in support of the traffic stop: (1) there was reasonable suspicion that D violated Transportation Code Section 545.060(a); and (2) there was reasonable suspicion that D was DWI.

The court of appeals addressed only the first of these arguments and held that the traffic stop was not supported by reasonable suspicion that appellee had violated Section 545.060(a) of the Transportation Code. The court further held that because the stop was illegal, evidence obtained in the illegal detention could not provide the probable cause for the search warrant for the blood draw. State claimed court of appeals erred in failing to address the State’s alternative argument that the stop was justified by reasonable suspicion

that D was DWI. TCCA agreed. “If the stop was supported by reasonable suspicion that appellee was driving while intoxicated, as the State contends, the disposition of the case may change.” Remanded to address the State’s argument that the traffic stop was supported by reasonable suspicion that D was DWI. TCCA refused ground (1) of the State’s PDR with prejudice.

State v Bernard, 545 S.W.3d 700 (Tex App. - Houston [14th Dist.] 2018, no pet.) - The trial court did not err by granting the defendant’s motion to suppress because the State failed to offer facts characterizing the defendant’s driving as erratic or unsafe such that the facts would support a reasonable suspicion of intoxication. Officer saw vehicle driven by D approximately a quarter mile away at 2:30 a.m. and claimed D was “swerving from lane to lane and even going into the center lane.” Officer activated emergency lights and pulled the vehicle over “to check the welfare of the driver.” D not speeding, all equipment was functioning properlyon vehicle, registration and insurance were valid, and D stopped vehicle normally when pulled over. D’s driving did not interfere with any other vehicles and there was nothing unsafe about his driving Video surveillance in patrol car recorded D’s driving for two minutes prior to officer activating emergency lights. Video showed D left his lane by a few inches only twice, which is not weaving. D did not swerve across several lanes of traffic or engage in erratic or unsafe driving or any other unusual behavior. There was no aggressive driving and the location of the stop was not near a bar district where numerous DWI arrests had been made. The State failed to offer facts characterizing D’s driving as erratic or unsafe such that the facts would support a reasonable suspicion of intoxication.

8.

Pritchett and stopping in crosswalk/intersection is reas susp

P r i t c h e t t v S t a t e , N o 12-14-00298-CR (Tex. App. - Tyler, April 6, 2016, pet. ref’d) (unpublished) - Officer saw D’s car stop in the intersection. A driver approaching an intersection with a stop sign must stop before entering the crosswalk or at the stop line. Tex Transp. Code Ann. § 544.010(a), (c). If the intersection has no crosswalk or stop line, the driver must stop at the place nearest the intersecting roadway where the driver has a view of approaching traffic. Id.

Officer testified D’s bumper was over a manhole cover in the intersection when D stopped. Evidence at hearing showed manhole cover well into the cross-street. An officer may stop and detain a motorist who commits a traffic violation within the officer’s view. Whren v. United States, 517 U.S. 806 (1996); Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992). “In addition, an officer may conduct a temporary detention if the officer has reasonable suspicion to believe that a person is violating the law.” See Ford v. State, 158 S.W 3d 488 (Tex Crim. App. 2005). “Reasonable suspicion is dependent upon both the content of the information possessed by the police and its degree of reliability.” See Alabama v. White, 496 U.S. 325 (1990); Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000).

The question of whether D properly stopped at the intersection can be resolved by an assessment of whether officer’s testimony was credible. Trial judge’s FOF stated D committed a traffic violation which is reasonable in light of the evidence before it. No abuse discretion in concluding stop was legal.

9. Colby and stopping in intersection for officer not reas susp stop

State v. Colby, 604 S.W.3d 232 (Tex. App. Austin 2020, no pet.) A video recording of the stop, taken from patrol-car dash camera, shows officer’s vehicle approach the intersection and come to a stop beyond the stop sign, in the intersection. The video then shows D’s vehicle approach the intersection from cross street and come to a stop in the intersection at a T with patrol car, back up slowly, stop again, flash its lights, and then proceed through the intersection. Finally, the video shows officer turn left behind D’s vehicle and initiate a traffic stop.

“When a police officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing.” State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018).

“An officer may make a warrantless traffic stop if the ‘reasonable suspicion’ standard is satisfied.” Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015).

“Reasonable suspicion exists if the officer has ‘specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.’” Id “The standard requires only ‘some minimal level of objective justification’ for the stop.” Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).

An operator of a motor vehicle commits an offense if he stops his vehicle in an intersection. Tex Transp. Code § 545.302(a)(3). The Transportation Code permits drivers to stop in an intersection under certain circumstances, including when necessary to avoid “conflict with other traffic.” Tex. Transp. Code § 545.302(f).

“[B]ecause ‘the statute provides for circumstances in which it is not against the law to stop in an intersection, an officer should consider whether these circumstances apply when evaluating whether there is reasonable suspicion to believe’ that the driver

violated the statute.” Cortez, supra.

D’s stopping inside the intersection was an attempt to yield to officer’s patrol vehicle, which officer should have realized was permitted under the Transportation Code to avoid “conflict with other traffic,” see Tex. Transp. Code § 545.302(f). “Because this was the State’s only basis for the traffic stop, the trial court did not err in concluding that the State failed to satisfy its burden that [officer] had reasonable suspicion to initiate the traffic stop . . .”

10. Gonzalez-Gonzalez and disregarding traffic control device is reas susp

Gonzalez-Gonzalez v. Tex. Dep’t of Pub. Safety, No. 04-15-00611-CV (Tex. App. - San Antonio, May 18, 2016, no writ) (unpublished) - Officer saw D traveling westbound in left lane then enter eastbound left-turn only lane and execute a U-turn into eastbound traffic. Making a U-turn in a lane marked for left turns by vehicles traveling in the opposite direction violates Tex. Transp. Code Ann. § 544.004 because the lane marking was a traffic control device under Tex Transp. Code Ann. § 541.304. The officer had reasonable suspicion to stop D. At an ALR hearing, DPS is not required to prove the driver actually committed a traffic violation, but DPS did so in this case.

11. Rodgers and road rage is probable cause to arrest

Rodgers v. State, 500 S.W.3d 682 (Tex. App. - Fort Worth 2016, no pet.)

Felony DWI case. Officer saw D from his car yelling obscenities at the occupant or occupants of the car beside him. A peace officer may make a warrantless arrest for any offense committed in his presence or within his view. A person commits the offense of disorderly conduct when that person “uses abusive, indecent, profane, or vulgar language

in a public place, and the language by its very utterance tends to incite an immediate breach of the peace; . . abuses or threatens a person in a public place in an obviously offensive manner; . . . [or] makes unreasonable noise in a public place.”

The undisputed evidence revealed that officer saw D commit a crime before detaining him, so the officer not only had reasonable suspicion to detain D but also had probable cause to arrest D. Because officer had probable cause to arrest D before he ever detained him, the evidence obtained as a result of the detention was not the fruit of an unlawful detention. Trial court did not err by denying motion to suppress.

12. Torrez and officer incorrectly thought headlight out is reas susp

State v. Torrez, 490 S.W.3d 279 (Tex App. - Fort Worth 2016, pet. ref’d) - Officer on patrol saw D’s car approximately one hundred yards away. Officer saw that one of the headlights on D’s car was not working. Officer stopped D’s car to investigate an apparent traffic violation. Officer later arrested D for DWI After D arrested and still at the scene of the traffic stop, D asked to see the allegedly malfunctioning headlight. Another officer took D to look at headlights and saw that both of them working properly. Another officer also then saw that both headlights were working correctly. Trial judge granted motion suppress because this error resulted in lack of reasonable suspicion for the traffic stop.

Court held that an officer’s reasonable suspicion may be validly based on articulable facts that are ultimately shown to be inaccurate or false. See Williams v. State, 621 S.W.2d 613 (Tex. Crim. App. [Panel Op.] 1981) (“That the automobile was not a stolen automobile is immaterial since the officers at the time of the appellant’s arrest and search and the search and inventory of the

automobile had probable cause to believe the automobile was stolen.”); Kelly v. State, 721 S.W 2d 586 (Tex App. - Houston [1st Dist.] 1986, no pet.); see also Illinois v. Wardlow, 528 U.S. 119 (2000) (explaining that the reasonable suspicion standard “accepts the risk that officers may stop innocent people”). “Thus, as the Supreme Court has explained, an officer ‘might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment.’” Heien v. North Carolina, 135 S. Ct. 530 (2014); see Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (“[A] mistake about the facts, if reasonable, will not vitiate an officer’s actions in hindsight so long as his actions were lawful under the facts as he reasonably, albeit mistakenly, perceived them to be.”). Trial judge did not doubt officer’s credibility regarding honestly thinking the headlight was out. Valid stop.

13. Varley and one brake light out but two break lights working is reas susp

State v. Varley, 501 S.W.3d 273 (Tex. App. Fort Worth 2016, pet. ref’d) - Officer saw D tap his brakes and back passenger brake light did not illuminate. Officer testified vehicles required to have at least two brake lights on the rear of the vehicle, so he concluded that he saw a traffic offense. Officer waited until D stopped a second time to confirm a light violation. Officer saw vehicle weave back and forth from side to side while remaining within its lane. Officer agreed that weaving within the lane would not necessarily be enough to pull someone over, but because he had already observed the brake light violation, he decided to pull over D. When Appellee braked to pull over and stop,

Officer Gilbert said he confirmed the brake light was out. Officer said he did not consider the brake light in the center of the rear cab window because it was not affixed to the rear of the vehicle. Officer testified he had reasonable suspicion that Appellee had committed an offense.

Court held that officer did not have reasonable suspicion that D committed a traffic violation under Tex Transp. Code Ann § 547.323(a), (c), because that section required two working brake lights and D had two working brake lights, one on the rear and one on the back of his pick-up truck’s cab. Section 547.323(c) required one brake light on the rear of the vehicle, which D had.

The State argued that officer had reasonable suspicion because, although never mentioned at the suppression hearing, all three brake lights are required under the federal equipment standards that the Texas Legislature adopted in another statute section 547.3215 of the transportation code. Section 547.3215(1) requires compliance with “the current federal standards in 49 C.F.R. Section 571.108.” Id. Section 571.108 of Title 49 of the Code of Federal Regulations requires two brake lights on the rear of the vehicle and one high-mounted brake light (or two high-mounted brake lights under specified circumstances). 49 C.F.R. § 571.108 (2016). A violation of section 547.3215 provides reasonable suspicion. Because the State did not rely on section 547.3215 at trial, it may not rely on it now.

The State also relied on Heien v. North Carolina, 135 S.Ct. 530 (2014). Heien is indistinguishable. Like Heien, officer was mistaken in his construction of the statute. If anything, officer was in a more reasonable position that the officer in Heien. In Heien, the statute had not previously been construed by the appellate courts. Here, the trial court acknowledged officer’s construction was reasonable when it stated that the statute was unclear and that “the rear of the vehicle” could

mean the rear of the cab or the rear of the bed. Additionally, there was some appellate court authority, although in dicta, for the proposition that section 547.323 required two rear brake lights. The officer’s erroneous belief that two working brake lights were required on the rear of the vehicle was reasonable, therefore there was no violation of the Fourth Amendment.

14. Speck and failure to signal in optional exit lane is reas susp

Speck v. State, 564 S.W.3d 497 (Tex. App. - Houston [14th Dist.] 2018, no pet.) - If a person is driving in a lane that is not an “Exit Only” lane, but the lane connects with an optional exit ramp, he must signal to indicate his intention to take the exit. D failed to so signal, so trial court correctly denied the motion to suppress.

Tex. Transp. Code § 545.104(a) requires a driver to signal “to indicate an intention to turn, change lanes, or start from a parked position.” The phrase “change lanes” is not defined. “In the absence of a statutory definition, we give the words in this phrase their plain meaning.” “‘Change,’ in this context, means ‘to make a shift from one to another.’” Webster’s Ninth New Collegiate Dictionary 225 (9th ed. 1991). “‘Lane’ means ‘a strip of roadway for a single line of vehicles.’” Id. at 672. Therefore, “the common understanding of to change lanes is to make a shift from one strip of roadway to another.” D was “driving in the outermost lane of the highway until he exited without signaling.” This outermost lane did not require an exit. The D “could have continued driving on the direct course of the highway, but instead, he shifted to the exit ramp, which was a separate strip of roadway.” Therefore, the D “changed lanes because he made a shift from one strip of roadway to another. Due to this lane change, a signal was required.”

The D contended that “the act of

exiting a freeway or highway can be a foreseeable merge into the same lane and should not be considered as lane change,” as in Mahaffey “In Mahaffey, two separate roadways converged into one, whereas here, a single roadway diverged into two (a continuation of the direct course of the highway, and a separate exit away from the highway).” Here, 545.104(a) required the D “to signal his exit from the highway.” The D did not signal his exit, so the officer correctly initiated a traffic stop, and the trial court properly denied the suppression motion.

15. Wood and cigarette tossed from car is reas susp stop for littering

State v. Wood, 575 S.W.3d 929 (Tex. App. Austin 2019, no pet.) - PO saw lit cigarette tossed from D’s car land on road but no fire resulted. PO had reasonable suspicion to believe that D committed offense of littering pursuant to § 365.012(a) Health & Safety Code b/c if item listed in § 365.012(a-1) was improperly discarded but did not result in a fire being ignited, the act could still be punished under § 365.012(a) “disposal of litter or other solid waste” on road. Trial judge abused discretion bygranting motion to suppress.

16. Babel and no headlights on 30 minutes after sunset is reas susp

Babel v. State, 572 S.W.3d 851 (Tex App. - Houston [14th Dist] 2019, no pet.)Sunset occurred at 7:37 p.m., and PO arrested D around 8:00 p.m. Almost all the cars on road had headlights illuminated. The street lamps along the roadway were illuminated. Businesses located on the roadway were illuminated by private light poles. Although it was clear, the sky was not brightly lit. D claimed arrest occurred 7 minutes before law mandated D turn on headlights, and the stop occurred even earlier. Thus, D claims stop was

illegal b/c occurred before the time necessary for displaying headlights. State claims PO reasonably believed it was nighttime thus justifying the stop. Court held PO who stopped D had objectively reasonable suspicion of criminal activityfor D’s failure to display headlights, in violation of Tex. Transp. Code Ann. § 547.302, despite PO being mistaken as to the 30-minute time frame. “The Fourth Amendment tolerates only reasonable mistakes, and those mistakes whether of fact or of law – must be objectively reasonable.” Heien v. North Carolina, 135 S.Ct. 530, 539; Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 2012).

17. Martinez and partially obscured license plate is reas susp to stop and duration of detention

Martinez v State, 500 S.W.3d 456 (Tex. App. - Beaumont 2016, pet. ref’d)

Officer stopped D’s car to investigate suspicion that car had obscured rear license plate in violation of Tex. Transp. Code Ann. § 504.945 (pertaining to offenses involving wrong, fictitious, altered, or obscured license plates). After stopping the car, officer checked out-of-state plate through a database available to officers and learned that eight days before, another officer stopped the same car but unknown if same driver. Officer said D seemed nervous. Officer stated D’s story about going to Houston to visit children was inconsistent with the car previouslystopped in Liberty County just eight days earlier To investigate his suspicions about Martinez and the use of the car, the officer indicated that he used the information from Martinez's license to run a background check.

Officer learned that D had active case in Chicago being handled by DEA. Officer then suspected D might be using the car to transport narcotics or money Officer then called agent on Chicago case. The DEA agent told officer that the DEA believed DTO had

sent someone to pick up a large amount of cocaine and that D might be that person. Officer asked for consent to search and D did not hesitate when he consented to the requested search. Officer found money and charged D with money laundering. D claimed illegal stop. Trial judge denied motion and found the frame around the plate interfered with a person’s ability to read the name of the state as it appeared on the plate.

Court held that trial court did not abuse its discretion by finding that the officer had an objectively reasonable basis to believe that license plate frame obscured the plate to such a degree that it violated Tex. Transp. Code Ann. § 504.945 and therefore the officer’s stop of the car was justified where the evidence showed that the frame obscured more than half of the letters in the state’s name on the plate. Facts of this case also supported trial court’s conclusion that it was reasonable for officer to continue to investigate for entire period before D’s arrest where it showed that D’s car had been stopped eight days earlier and the officer learned that D was currently involved in a case that involved trafficking in another state.

18. Ellis and FBI/DPS database reliable for reas susp to stop

Ellis v. State, 535 S.W.3d 209 (Tex. App. - Fort Worth 2017, pet. ref’d) - The officer had reasonable suspicion for the stop because officer’s knowledge sufficient to establish the reliability of the database maintained by the FBI and DPS. Drivers in Texas must maintain proof of financial responsibility. Tex. Transp. Code Ann. § 601.051. Operating a vehicle without financial responsibility is a misdemeanor punished by a fine under § 601.191. In Swadley v. State, No. 02-15-00085-CR (Tex App. - Fort Worth Dec. 15, 2016, pet ref’d), the court held that cases involving stops based on an officer’s database-derived suspicion that the driver may

be committing this misdemeanor fall into two categories: (1) no reasonable suspicion if evidence was not developed regarding the ambiguous answer “unconfirmed” meaning or reliability; and (2) reasonable suspicion existed if officer, through experience or training, had additional information about what the ambiguous answer from the database meant and some idea regarding the data’s reliability Id. In this case, officer had experience with “unconfirmed” and had a great deal of experience with the database – he had used it “[t]ens of thousands” of times “enough experience to know that except for ‘a handful’ of the ‘[h]undreds, if not thousands’ of times he had received an ‘unconfirmed’ return from the database, the return meant that the vehicle in question was not currently insured.” The officer therefore had sufficient specific, articulable facts upon which to base his inference that D’s Jeep was uninsured.

The court stated, however, “that it would be helpful to have objective information about the database how it worked, the timeliness of the information placed in it, and the error rate, for example and essential if we were reviewing a conviction based on information yielded from the database rather than whether a police officer with a great deal of experience using the database had reasonable suspicion to stop a motorist based on a return of ‘unconfirmed’ from that database. See id. However, in this case and under these limited and specific facts, we uphold the trial court’s implicit finding that Officer Chaney’s knowledge was sufficient to establish the database’s reliability for the purposes of establishing reasonable suspicion. We consequently hold that under these narrow facts, the trial court did not err by concluding that Officer Chaney had reasonable suspicion for the stop or by denying Appellant's motion to suppress.”

19. Smith and police follow directive to stop car so no reas susp

State v. Smith, 555 S.W.3d 760 (Tex. App. - Texarkana 2018, no pet.) Because the evidence at the suppression hearing showed that no traffic violation was reported and the police merely followed the directive to stop a silver Mercedes, there was an absence of clear and convincing proof satisfying the State’s burden to justify its warrantless search, and the trial court did not abuse its discretion in suppressing the evidence from the search.

“A detention is either good or bad at the moment it starts.” State v. Duran, 396 S.W.3d 563, 569-70 (Tex. Crim. App. 2013). “A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts.” Peucker v State, 489 S.W.3d 592, 600 (Tex. App. Texarkana 2016, pet. ref’d), citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). "In Terry, the Court adopted a two-part examination to determine the reasonableness of an investigative detention.” Id., citing Terry, 392 U.S. at 22. “The first part of the analysis is to determine whether the officer’s action at its inception was reasonable.” Id., citing Terry, 392 U.S. at 16-17. An “officer must have specific, articulable facts that, when combined with rational inferences therefrom, lead him to reasonably conclude that a particular person actually is, has been, or soon will be, engaged in criminal activity.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013), citing Castro v. State, 227 S.W.3d 737, 741 (Tex Crim. App. 2007)). “This standard is objective, thus there need be only an objective basis for the stop; the subjective intent of the officer is irrelevant.” Id., citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). “The detaining officer need not personally be aware of every fact that objectively supports a reasonable suspicion to detain; the cumulative information known to the cooperating officers at the time of the stop is to be considered in making the reasonable-

suspicion determination.” Id. “A 911 police dispatcher is ordinarily regarded as such a cooperating officer for purposes of making this determination.” Id

“[A]lthough the information provided need not lead to the conclusion that an identifiable penal-code offense has occurred, the information must still be sufficiently detailed and reliable to support the reasonable suspicion that criminal activity is about to occur.” Martinez v State, 348 S.W.3d 919, 926 (Tex Crim. App. 2011). “[A]ctions in a series may each seem innocent enough in isolation. If, however, when examined in the context of the totality of the circumstances, they reasonably suggest recent or imminent criminal conduct, an investigative detention is justified.” Arguellez, 409 S.W.3d at 663, citing Derichsweiler v State, 348 S.W.3d 906, 914 (Tex Crim. App. 2011). “The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular noncriminal acts.” Arguellez, 409 S.W.3d at 663 (quoting Derichsweiler, 348 S.W.3d at 914).

At a minimum, however, “[t]he facts must show that an unusual activity occurred” and that “the unusual activity is related to a crime.” Martinez, 348 S.W.3d at 925 “The reasonable suspicion determination is made by considering the totality of the circumstances.” Arguellez, 409 S.W.3d at 663 (quoting Garcia, 43 S.W.3d at 530).

In this case: (1) D “banged” on the door of Barnett’s home at 8:18 p.m.; (2) Barnett refused entry to D; (3) Barnett was not threatened by D; (4) D left the home driving a silver Mercedes pickup, and (5) Barnett called 911. Unknown how long or loud was the banging or whether police thought this activity was suspicious. It was also unknown how Barnett knew D. No traffic violation reported, and the reason for the stop was Barnett’s report that the person banging on door left in silver Mercedes pickup. At suppression hearing, officers did not claim that it was

reasonable for arresting officer to believe, prior to the stop, that criminal activity was afoot. Officers stated that they merely followed the directive to stop a silver Mercedes. “The ultimate question is whether the officer was in possession of specific, articulable facts that were sufficient to provide a basis for a finding of reasonable suspicion to stop appellant’s vehicle.” Id. Court held there was an absence of clear and convincing proof satisfying the State’s burden to justify a warrantless search, so no abuse of discretion in finding the officers failed to develop reasonable suspicion to believe D had engaged in criminal activity or was about to do so. There was no evidence of: (1) the nature of Barnett and D’s relationship; (2) D had threatened Barnett; or (3) D would return to Barnett’s home; so there “was no indication of crime being afoot.” Arguellez, 409 S.W.3d at 664.

20. Binkley and state vehicle insurance database not reliable for stop

Binkley v. State, 541 S.W.3d 923 (Tex. App. - Fort Worth 2018, no pet.) - The evidence indicated that the state vehicle insurance database was unreliable so arresting officer did not have reasonable suspicion to support the stop. In Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex. App. - Amarillo 2010, pet. ref’d), the database returned “unavailable,” “not available,” or “undocumented” regarding liability insurance coverage when officers entered the information for Gonzalez-Gilando’s vehicle. The officer testified that the return led him to believe that the vehicle did not have insurance coverage, but he did not explain why. Id. at 896-97. On the other hand, officer testified that the return could have meant either that the vehicle was insured or that it was not insured. Id at 897 n.2. The court held that the officer’s inference was not reasonable and that he lacked reasonable suspicion for the stop.

In this case, however, the deputy’s testimony indicated “a weekly error rate of 33% and potentially up to 100% in his experience with the database” and the database coordinator was unable to explain this error rate. That evidence supports the trial court’s implied finding that the database was not reliable. The undisputed evidence shows that Deputy Kristufek had no basis for the stop other than the return from the database. The deputy therefore did not have reasonable suspicion to support the stop.

21. Oringderff and 911 call sufficient to stop

Oringderff v. State, 528 S.W.3d 582 (Tex. App. - Texarkana 2017, no pet.)

Officer dispatched as a result of 911 call informing dispatch that caller believed he was following a drunk driver on Highway 34. Caller told dispatch that car he was following had been weaving on both sides of the road. Caller gave his location and license plate of suspected drunk driver and described the car. Dispatch connected caller to officer. The caller repeated info to officer and, soon thereafter, officer told caller that call breaking up and asked caller for phone number. The caller said “903" and then recording ended. No other info for caller. Officer’s dash cam showed D on highway in front of officer. Dash cam showed D’s car crossing white line that separates driving lane from shoulder (fog line) and then re-entering the lane of travel. Officer’s lights then begin flashing, and D pulled over.

Officer’s stop of D was supported by reasonable suspicion because anonymous caller used 911 system to report car was weaving and described location, car, and license number, and officer then saw D swerve over fog line arguably committing a traffic offense under Tex Transp. Code Ann. §§ 545.060 or 545 058 A traffic stop constitutes a 4th Amendment seizure and

reasonable suspicion is required to conduct such a stop. See Berkemer v. McCarty, 468 U.S. 420 (1984); Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005).

Officer “has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.” Derichsweiler v. State, 348 S.W.3d 906 (Tex Crim. App. 2011) “It has been widely recognized that the reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her.” Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005).

“A law enforcement officer may consider information from a private citizen that he or she witnessed a crime, but the officer should also ‘have some indicia that the citizen is worthy of belief . . . and his information [is] reliable before acting on a report.’” Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988). “Unsolicited information regarding a crime in progress provided by a citizen who has no relationship with the police, provides detailed information, and makes himself accountable by providing contact information is sufficiently reliable to warrant an officer to reasonably conclude that a temporarydetention is justified.” Martinez v. State, 261 S.W.3d 773 (Tex App. - Amarillo 2008, pet. ref’d). ‘[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to

detain; rather, ‘the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists,’” and “[a] 911 police dispatcher is ordinarily regarded as a ‘cooperating officer’ for purposes of making this determination.” Derichsweiler, 348 S.W.3d at 914. The USSC has stated that if 911 caller was anonymous, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Navarette v. California, 134 S.Ct. 1683 (2014). The USSC, however, stated that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’” Id. “By accurately predicting future behavior, the tipster demonstrated ‘a special familiarity with respondent’s affairs,’ which in turn implied that the tipster had ‘access to reliable information about that individual’s illegal activities.’” Id. “Virtually all of the factors relied upon by the Supreme Court in finding reasonable suspicion to instigate the traffic stop in Navarette are present here.”

Anonymous caller used 911 system to report the conduct and described location, car, and license plate number. Caller said car had “been weaving on both sides of the road,” which is “dangerous behavior[] . . . strongly correlated with drunk driving.” Id. at 1690-91. Officer saw and corroborated info from 911 caller and D drifted over fog line which was arguably a traffic offense. No abuse discretion denying motion to suppress.

22. Tyler and 911 call sufficient to stop

Tyler v. State, 491 S.W.3d 1 (Tex. App. - Houston [14th Dist.] 2016, no pet.)

Taxi driver called 911 to report assault/fight in progress in parking lot. He told dispatch that he thought it was a male and a female fighting beside a maroon-colored Ford truck. He said the man had his hands around the woman’s

neck and was choking her. When the two combative individuals began to drive away, police officers arrived and followed the maroon truck and turned their lights on. Officer testified that he responded to a report of an assault occurring in a parking lot of a particular establishment. He said that when he and another officer arrived at the parking lot, they saw a maroon pickup truck leaving the lot that matched the description given by the witness. The officers followed the truck and turned on their lights and sirens. The driver of the truck, D, pulled into another parking lot and stopped.

The Court held that this was a valid stop because the taxi driver’s 911 call provided a detailed eyewitness description of suspicious activity related to a crime and the driver additionally described the specific vehicle that the two combatants entered and provided the address of the parking lot. Officers were able to confirm part of the driver’s report when they drove to the parking lot and observed a vehicle matching his description exiting the lot. The driver’s report created reasonable suspicion of an ongoing crime as he reported more than a conclusory allegation of mischief.

B. Detention and arrest

1. Utah v. Strieff and outstanding arrest warrant’s affect on bad stop

Utah v. Strieff, 579 U.S. 232, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) - Drug officer conducted surveillance on a house based on anonymous tip about drug activity. Officer saw people briefly visiting the house during a week and became suspicious that occupants were dealing drugs. Officer saw D leave house and detained D at nearby parking lot. Officer identified himself and asked D what doing at house. Officer then requested D’s ID and relayed the info to dispatch who informed officer D had outstanding warrant for traffic

violation. Officer arrested D, searched D, and found meth and drug paraphernalia. USSC stated that officer made unconstitutional investigatorystop but learned during the stop that D had valid arrest warrant, arrested D, and seized evidence in search incident to arrest. USSC held that the evidence seized incident to arrest was admissible under 4th Amendment because officer’s discoveryof warrant attenuated the connection between unlawful stop and evidence seized incident to arrest. The outstanding arrest warrant was a critical intervening circumstance that was wholly independent of the illegal stop. It was especially significant that there was no evidence that the officer’s illegal stop reflected flagrantly unlawful police misconduct.

2. Jennings and 911 call insuff; officer box car in driveway is detention

State v. Jennings, 511 S.W.3d 306 (Tex. App. - San Antonio 2016, no pet.) Officer told by dispatch that 911 caller reported two females were at nursing home and appeared to be intoxicated. The caller provided a description and license plate number of the car in which the females had driven away. Dispatch told officer that caller had been identified and work phone number obtained. Dispatch told officer females were being loud in hallways of nursing home and been asked to leave due to the disturbance. Within minutes, officer located the car and followed it onto two different streets and then parked in a driveway Officer did not observe any traffic violations nor did he observe the driver having any problems driving the vehicle. Officer pulled into driveway just behind D and told dispatch he was conducting a traffic stop. After SFST’s, D arrested DWI.

Court held that D was detained when officer boxed her car in driveway “Most courts have held that when an officer ‘boxes in’ a car to prevent its voluntary departure,

this conduct constitutes a Fourth Amendment seizure” or detention. State v. Garcia-Cantu, 253 S.W 3d 236, 246 n.44 (Tex Crim. App. 2008). Officer did not have reasonable suspicion to detain D because statements by nursing home employee to dispatch that D and sister intoxicated was a subjective opinion that was required to be supported by specific, articulable facts. Dispatcher did not testify and, therefore, did not provide evidence of any specific, articulable facts, and the 911 recordings, which might or might not have contained specific, articulable facts, were not admitted into evidence.

The 4th Amendment permits officer to conduct a brief investigative stop when the officer has reasonable suspicion that a person is violating the law. Navarette v. California, 134 S.Ct. 1683 (2014). Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. “The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependant upon both the content of the information possessed bypolice and its degree of reliability ’” Navarette The standard looks “solely to whether an objective basis for the stop exists” and considers the totality of the circumstances.

Dispatcher’s report of employee’s statement did not provide any context for the statement. Court held that the statement that the females were intoxicated is a subjective opinion, so the opinion was required to be supported by specific, articulable facts. Because officer did not have any specific, articulable facts to support the opinion; the dispatcher did not testify and did not provide evidence of any specific, articulable facts; and 911 recordings, which may or may not have contained specific, articulable facts, were not admitted into evidence; Court held that officer did not have reasonable suspicion to detain D.

3.

Cook and 911 call/home suspicious place sufficient

Cook v. State, 509 S.W.3d 591 (Tex. App. - Fort Worth 2016, no pet.) – MA DWI 0.15, motion suppress denied. Citizen informant 911 calls began at 9:46 p.m, and a caller (identified herself by first and last name, telephone number, and vehicle color and model) stated car had crossed over about three lanes and struck a concrete wall and later pulled into garage # 87 at 9:49 p.m. A different caller also followed car and said it was pulling into some apartments. The initial caller kept describing the location where car headed until driver pulled into apartment complex, and from there into garage # 87. The caller never saw the driver but did see the car pull into that particular garage The caller agreed to wait at scene until police could arrive.

Officer walked around to front of apartments and found front door that had # 87 on it. Officer’s dashcam showed officer knocked on D’s door at 9:57 p.m. and D answered about a minute later. D spoke to officer when D answered her door and voluntarily spoke to officer. D told officer D had been at birthday party and drank several glasses of wine. Officer gave D FST’s.

The officer had reasonable suspicion to detain D to further investigate whether probable cause existed to arrest D for DWI because citizen informant made 911 call, officer witnessed D’s condition, and D made statements to officer D answered her door and voluntarily spoke to officer. D’s warrantless arrest was valid because probable cause to arrest D arose after D failed FST’s and officer interviewed 911 callers and other civilian W’s. “As in Derichsweiler, there is no issue in this case with respect to the reliability of the citizen-informant because she identified herself and, along with at least one passenger, stayed at the scene to give witness statements

to the police.” D’s home was a suspicious place under TCCP Art. 14.03(a)(1) because the 911 calls began at 9:46 p.m, a caller stated the person had pulled into a garage at 9:49 p.m., the officer’s dashcam showed he knocked on D’s door at 9:57 p.m., and D answered about a minute later. Warrantless arrest was legal.

4. Byram and community caretaking function shown

Byram v. State, 510 S.W.3d 918 (Tex. Crim. App. 2017) - Officer assigned to monitor a bar district in downtown. At about 5:30 p.m., officer stopped at red light and D pulled up next to officer. He smelled odor alcohol from D’s SUV and noticed a woman hunched over in the passenger seat. Officer thought passenger might be unconscious or in need of medical attention due to alcohol poisoning, so officer yelled at D/driver, asking if the passenger was okay. D did not respond. Light turned green and D drove off, and officer thought D trying to avoid contact. Officer did not see D Appellant commit any traffic violations. Officer pulled over D and immediately checked passenger who was barely conscious with some sort of medical problem. Passenger had vomited inside SUV so officer requested EMS. At time stop, officer stated he had no real reason to think that D was intoxicated. Passenger refused medical assistance, and officer arrested D for DWI. Trial judge denied motion suppress. TCCA affirmed trial judge because officer was reasonably engaged in a community caretaking function when he stopped D since there was an incapacitated passenger and unconcerned driver in the bar district. Considering totality of circumstances, a reasonable person would believe the passenger was in need of help. The traffic stop was reasonable.

5.

Dearm ond and community caretaking function shown

Dearmond v. State, 487 S.W.3d 708 (Tex. App. - Forth Worth 2016, no pet.)

Officer on patrol in residential area heard repeated thud sound of a flat tire and saw a car with two flat tires stop at an intersection. Officer said he was fearing for the driver’s safety and that of the general public so officer turned on his patrol lights to help driver with the flat tires and initiated a traffic stop. Officer radioed dispatch his location and that he would be helping driver with flat tire. Officer believed that a flat tire affects the safety of the car, controlling steering, braking, and just overall control of the car and makes it more difficult to safely maneuver on the road. Officer at car smelled strong odor of burning tire rubber. Officer asked D if D knew he had two flat tires, and D said he had only one flat tire. D’s eyes were glassy and dilated and D said D had drunk a couple of whiskeys. D was unsteady on his feet and had no shoes. SFTS’s led officer to believe D had lost normal use of his mental and physical faculties by reason of the introduction of an alcoholic beverage and intoxicated. D cuffed and arrested for DWI

A search of car revealed partially consumed bottle of whiskey. D refused breath test so warrant issued for blood which showed 0.27. D claimed illegal stop. Court held that stop of D’s car “was justified under community-caretaking function because the totality of the circumstances would lead a reasonable person to believe” that D, who “was driving his car with two flat tires in a residential area at night, was in need of help.” “Additionally, there was undisputed evidence that driving on two flat tires was unsafe for the driver and others in the vicinity because such a car was difficult to control; therefore, defendant was operating his car in an unsafe manner so as to endanger a person under Tex Transp. Code Ann. § 547.004, giving the

officer reasonable suspicion to stop defendant.” Judgment affirmed.

6. Williams and challenging HGN results and blood test results

Williams v. State, 525 S.W.3d 316 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d) – Nystagmus is involuntary rapid oscillation of eyes in a horizontal, vertical, or rotary direction. HGN refers to the inability of the eyes to smoothly follow an object moving horizontally across the field of vision, particularly when the object is held at a 45 deg (or more) angle to the side. Consumption of alcohol exaggerates nystagmus to the degree that it can be observed by the naked eye. Testimony concerning an HGN test is scientific evidence subject to the requirements of Kelly v. State The underlying scientific theory of HGN testing is valid, and the NHTSA HGN testing technique is valid as held by TCCA in Emerson.

The HGN technique is applied properlywhen officerfollows the standardized procedures outlined in NHTSA manual. Slight variations in the administration of HGN test do not render evidence inadmissible or unreliable, but may affect the weight to be given the testimony. D’s only challenge to HGN test is that officer failed to ask D if D had any recent head injuries or whether D was wearing glasses. D contends State did not meet third requirement of Kelly because State did not prove test was administered properly on the occasion in question. D asserted that his testimony regarding head injury he sustained in 2003 or 2004 that resulted in him being in a coma for over two weeks invalidated the HGN test results. D, however, did not establish that his purported head injury was of such a degree or nature that it would have impacted the validityof the HGN testing The trial judge was not required to believe D’s testimony Judge was entitled to credit officer’s testimony that D was good candidate

for HGN test over D’s testimony. No abuse discretion in admitting the HGN results.

Regarding sufficiencyof the evidence, D claimed his involvement in a fender-bender was not evidence of intoxication because officer admitted that these type of accidents happen often when people at that location are parallel parking. D discounted the HGN test evidence because he asserted it was improperly performed given D’s prior head injury D also attacked the blood-test evidence by urging that the jury could have easily disregarded the blood test evidence as unreliable because the test was performed after the expiration date for the vacuum on the blood tube and the blood had been stored in the lab’s malfunctioning refrigerator unit. But the blood analyst provided an explanation for the circumstances surrounding both the container and the refrigeration issue. The analyst explained that because the blood was collected before the expiration date on the vacuum tube, the expiry date had no impact on the test results. Second, the analyst explained that the temperature in the refrigerating unit dropped below freezing, which would not have impacted the blood-test results. Finally, D claimed he stood perfectly still and erect for an extended time on the video tape made at the station, a fact he claims was not consistent with intoxication. But, the jury, not a reviewing court, resolves conflicts in testimony and weighs the evidence. We presume that the jury resolved any inconsistencies in the evidence in favor of the verdict.

7. Dansby and reasonable suspicion, probable cause, public intox, no warrant, corpus delicti

Dansby v. State, 530 S.W.3d 213 (Tex. App. - Tyler 2017, pet. ref’d) This is a great case for writing a trial brief in support of a motion to suppress in warrantless arrest case. Officer stopped at convenience store and saw

unoccupied car running in parking lot. Officer asked people in store and adjoining Whataburger if their car D inside Whataburger said his car. D’s eyes red and watery, and D smelled of alcohol. Officer asked D where had been that night, and D stated at bar half block away. D said had few beers, went home, changed clothes, and returned to Whataburger for food. Officer asked another officer to do HGN resulting in D arrested for public intox DPS trooper to scene and decided to investigate for DWI Trooper did SFST’s and arrested D for DWI.

A subsequent breath test at jail was over 0.08.

Officer may arrest a person without a warrant only if: (1) there is probable cause for that person; and (2) one of the exceptions TCCP articles 14.01 through 14.04 apply. Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. A finding of probable cause requires more than bare suspicion, but less than would justify conviction. An unarticulated hunch, suspicion, or good faith of arresting officer is insufficient to support probable cause to justify a warrantless arrest.

D claimed no probable cause to arrest him for DWI because: (1) no one saw D driving; (2) lack of evidence regarding how long D’s car had been at scene; and (3) no info about if D consumed alcohol after arriving at the scene. D’s warrantless arrest for DWI was proper because D told trooper D consumed a few beers and two shots of alcohol, D’s car was running in parking lot, and D said he had been driving. D’s warrantless arrest for PI was proper because D’s alcohol consumption impaired his mental faculties and caused him to leave his truck running in parking lot with blinker and headlights turned on, and a field sobriety test provided more evidence of

intoxication.

D claimed his warrantless DWI arrest was unlawful because offense was not committed in officer’s presence or view. Under Art. 14.03, however, warrantless arrest is authorized if a person is found in a suspicious place and under circumstances which reasonably show that he has been guilty of a breach of the peace. DWI is a breach of the peace. Few, if any, places are suspicious in and of themselves “Any place may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police.” In this case, under these circumstances, the Whataburger meets the suspicious place requirement of 14.03(a)(1).

In Texas, the corpus delicti rule requires some corroboration of an extrajudicial confession regarding an injury or loss and a criminal agent. The rule does not require independent evidence that the defendant was the criminal perpetrator. The corpus delicti of DWI is that someone drove or operated a motor vehicle in a public place while intoxicated. In this case, the evidence outside the extrajudicial confession shows D’s credit card was used to pay for six beers at the bar 12:54 a.m., officer found car running in parking lot two doors down from bar at 1:30, D had red watery eyes and smelled of alcohol. Considering all the evidence independent of D’s extrajudicial confession, this evidence renders the corpus delicti more probable than it would be without the evidence.

8. Evans and reas susp but no probable cause and duration of stop

State v. Evans, 500 S.W.3d 528 (Tex. App. - San Antonio 2016, no pet.) - Officer saw D speeding 46/35 and stopped D. Odor alcohol from car and D’s breath D admitted to two whiskey drinks. HGN showed six

clues. No WAT or OLS because D claimed leg problems. No ABC’s because D claimed dyslexic. D then refused blow into portable breath tester. D then arrested for DWI The traffic stop was valid because 46/35.

“A seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez v. United States, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015). As a “‘relativelybrief encounter,’ a routine traffic stop is ‘more analogous to a so-called “Terry stop” than to a formal arrest.’” Id “Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ – to address the traffic violation that warranted the stop and attend to related safety concerns.” Id. “Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose.” Id “Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonablyshould have been completed.” Id. “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’” Id. “Typicallysuch inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id.

Thus, the question in this case is whether officer, after the traffic stop, had reasonable suspicion to continue detention and investigate whether D was DWI “Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full blown custodial arrest must be justified by a reasonable suspicion.” Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). “A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged

in criminal activity.” Id. “This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was objectively justifiable basis for the detention.” Id. “It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.” Id

Officer did not have reasonable suspicion that D DWI because, while D admitted to drinking alcohol, all the other specific and articulable facts pointed to D having normal use of physical and mental faculties at the time he was stopped. Also, officer did not have probable cause to arrest D for DWI because no signs of intoxication. The State points to the following as evidence of probable cause: speeding, admitting to having consumed alcohol, smell of alcohol on breath, six clues on HGN, swaying during the HGN test, failure to perform WAT/OLS, refusal to recite alphabet, and refusal to use the portable breath tester. Court stated that officer’s hearing testimony was not credible: officer faced D toward lights even though officer knew lights could affect HGN results; officer claimed no cars on highway during HGN to be affected by lights of passing vehicles but dash cam shows at least one vehicle traveling during the HGN; officer claimed D swaying during HGN but video shows not swaying and not unsteady on his feet. Court held that D does not exhibit signs of intoxication. Under facts this case, officer did not have probable cause to arrest DWI.

9. Scott and probable cause to arrest D for traffic offenses

Scott v. State, 572 S.W 3d 755 (Tex App. Houston [14th Dist.] 2019, no pet.) - D arrested, not detained for further investigation, when PO cuffed D and put D in patrol car and

took D to central intox for DWI evaluation. A reasonable person in D’s position would have believed seizure was sufficiently intrusive to be an arrest. PO had probable cause (PC) for warrantless arrest for not stopping at stop sign and for turning at red light without first stopping. Because PC existed to arrest D for the traffic offenses, unnecessary to address whether there was PC to arrest D for DWI.

10. Arrington and reasonable suspicion to detain via cumulative knowledge

Arrington v. State, 589 S.W.3d 196 (Tex. App. Houston [1st Dist.] 2019, pet. withdrawn for death appellant) PO had probable cause (PC) to arrest D for DWI because cumulative knowledge of witness and deputy constable gave arresting officer (AO) PC for warrantless arrest of D under exigent circumstances. D disregarded AO’s order to come outside gate of D’s home which was D’s attempt to evade lawful detention providing exigent circumstance justifying D’s arrest. No abuse discretion in denying D’s motion suppress.

11. Villalobos and warrantless temporary detention in a suspicious place

Villalobos v. State, 550 S.W.3d 364 (Tex. App. - Houston [14th Dist.] 2018, pet. ref’d) - The trial judge reasonably concluded that D was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and area where D was found was a suspicious place.

When in custody, Miranda warnings safeguard an unrepresented, interrogated suspect’s Fifth Amendment privilege against self-incrimination. Kuether v. State, 523 S.W.3d 798, 805 (Tex App. - Houston [14th Dist.] 2017, pet. ref’d). Unwarned statements obtained during custodial interrogation are inadmissible during the state’s case-in-chief.

Kuether, 523 S.W.3d at 805. TCCP article 38.22, section 3, also requires an interrogated suspect in custodybe warned “and the accused knowingly, intelligently, and voluntarily waive[ ] any rights set out in the warning[s]” before oral statements are admissible at trial. Kuether, 523 S.W.3d at 805. The definition of “custody” under article 38.22 is the same as “custody” under Miranda. Herrera v. State, 241 S.W.3d 520, 526 (Tex Crim. App. 2007).

There are three categories of interactions between police and citizens: (1) consensual encounters; (2) investigative detentions; and (3) arrests. Ortiz v. State, 421 S.W.3d 887, 890 (Tex. App. - Houston [14th Dist.] 2014, pet. ref’d), citing Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).

Detention and arrest involve a restraint on freedom of movement: the difference is in the degree. Id., citing State v. Sheppard, 271 S.W 3d 281, 290-91 (Tex Crim. App. 2008).

Arrests have a greater degree of restraint on freedom of movement than do investigative detentions. Id. Temporary detentions for investigation do not involve custody so Miranda does not apply. Hauer v. State, 466 S.W 3d 886, 893 (Tex App. - Houston [14th Dist.] 2015, no pet.), citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), and State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). “A person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex Crim. App. 1996); Kuether, 523 S.W.3d at 808. A determination of custody requires an objective view of the circumstances surrounding the interrogaton. Herrera, 241 S.W.3d at 525. An officer’s subjective belief that custody occurred is not a factor unless this belief was conveyed to the suspect. Id. at 525-26.

Officers make quick decisions under tense, uncertain, and rapidly changing

circumstances. Rhodes v. State, 945 S.W.2d 115, 118 (Tex Crim App. 1997). Courts consider the reasonableness of the officer’s actions under the perspective of a reasonable officer at the scene without using hindsight. Id. In determining if a suspect was arrested or detained, courts consider the amount of force used, duration of detention, efficiency of the investigation, if the suspect was transported to another location, and if officer told suspect he was under arrest or was being detained for a temporary investigation. Sheppard, 271 S.W.3d at 291. “If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect’s presence during a period of investigation, this suggests the detention is an arrest.” Id.

D in this case was detained and not in custodywhen questioned bypolice. There was no use of undue amount of force to hold D The officer put D in back of patrol car until investigating officer arrived. This all occurred between 3:12 and 3:55 a.m. Another officer then arrived and spoke with D and began SFST’s. Under these circumstances, it was reasonable for the trial court to conclude D was temporarily detained for DWI investigation and not in custody Kuether, 523 S.W.3d at 809 (defendant not in custody when held in patrol car, investigating officer approached him shortly thereafter, and decided to conduct DWI investigation); Hauer, 466 S.W.3d at 891-92 (defendant was detained and not in custody while officer cleared accident scene before investigating DWI).

Article 38.23 applies only to illegally obtained evidence. 38.23 does not address legality of warrantless arrests. There is no authority that a D is entitled to a jury question regarding legality of arrest based on whether he was found in a suspicious place. Under TCCP Chapter 14, warrantless arrests are authorized in limited circumstances. Swain v. State, 181 S.W.3d 359, 366 (Tex Crim. App. 2005); Banda v. State, 317 S.W.3d 903, 911

(Tex. App. - Houston [14th Dist.] 2010, no pet ). Article 14.03(a)(1) authorizes the warrantless arrest of suspect found in suspicious place under circumstances reasonablyshowing suspect committed breach of the peace. Banda, 317 S.W.3d at 911-12. DWI is a breach of the peace. Banda, 317 S.W.3d at 912 n.4. A warrantless arrest is proper under 14.03(a)(1) if the totality of the circumstances show probable cause that suspect committed a crime and was found in a suspicious place. Id at 912. D claims his warrantless arrest was illegal because officer admitted at trial that D was not found in a suspicious place. Few places, if any, are inherently suspicious. Banda, 317 S.W.3d at 912, citing Dyar v. State, 125 S.W.3d 460, 464-65 (Tex. Crim. App. 2003). A very fact specific analysis is used to determine if a place is suspicious. Id A place may become suspicious if there is a reasonable belief that suspect committed a crime and exigent circumstances call for immediate action or detention by officer. Id. A key factor in determining if a place as suspicious is if there is a short time frame between the crime and the apprehension of the suspect. Id In this case, the area where the D was found was a suspicious place because officer could have reasonably believed that D was DWI, was involved in a recent accident nearby, and needed to be detained because had fled the scene of the accident. Gallups v. State, 151 S.W.3d 196, 201-02 (Tex. Crim. App. 2004) (D’s home was suspicious because D was arrested at home for DWI shortly after leaving wrecked car at accident scene of an accident). D was found in a suspicious place under 14.03(a)(1), so no error in failure to give jury question whether D’s arrest was illegal.

Cagle v. State, 509 S.W.3d 617 (Tex. App. - Texarkana 2016, no pet.) - Officer stopped D and called for another officer to come and do SFST’s. Approximately thirty-eight minutes elapsed between the traffic stop and when other officer gave SFTS’s. D claimed that this delay was unreasonable. The Court held that the police did not unreasonablyprolong the investigative detention under 4th Amendment by waiting twenty-one minutes for the assistance of a law enforcement officer to conduct sobriety tests. The first seventeen minutes of the detention did not violate the 4th Amendment because it related to the initial traffic stop for running a red light, a disturbance, and a possible second traffic offense of DWI. Given that the D appeared to be intoxicated and admitted he had consumed two beers, the twenty-one minutes spent awaiting the arrival of an officer to conduct SFST’s served legitimate law enforcement purposes.

13. Kuether and custody analysis re handcuffs

12. Cagle and 21-minute prolonged investigation is reas

Kuether v. State, 523 S.W.3d 798 (Tex App. - Houston [14th Dist.] 2017, pet. ref’d) - A car was struck by a truck, causing the car to spin several times before coming to rest on the highway. Officer was dispatched to the scene and located an unoccupied truck off the highway on a grassy area near some woods. The truck was damaged on its front-end passenger side. There were no other vehicles in the area. DWI task force officer arrived on scene and concluded that truck had struck the car. Officer searched the truck and found a picture ID belonging to D. A K9 unit was summoned to search for the truck driver and dog alerted to the scent of a person in the woods. The woods were too dense for officers to get inside so officer called for a helicopter. The helicopter had infrared radar and verified a person was in the woods and directed the officers on the ground to the easiest route to

the suspect.

Officer found D stuck in a bush loaded with stickers. Officers handcuffed D and put him in the backseat of a patrol car. Task force officer saw D wearing one shoe, smelled like alcohol, slurred his speech, had red glassy eyes, and was unsteady on his feet. In response to questions, D said his other shoe was in the woods and he ran because he had been drinking and was scared and had been driving the truck. Officer then took D to station for sobriety testing

At station, officer read D Miranda warnings and administered HGN, WAT, and OLS. D had six clues on HGN, no clues on OLS, and five of eight clues on WAT. Officer obtained search warrant to draw D’s blood which showed 0.12. At trial, the State's expert was unable to determine D’s BAC at time of driving

Interactions between police and citizens fall into three categories: consensual encounters, investigative detentions, and arrests or their custodial equivalent. Both detention and arrest involve a restraint on one’s freedom of movement: the difference is in the degree. An arrest places a greater degree of restraint on an individual’s freedom of movement than does an investigative detention. Persons temporarily detained for purposes of investigation are not in custody for Miranda purposes, and thus the right to Miranda warnings is not triggered during an investigative detention. When considering whether a person is in custody for Miranda purposes, courts apply a reasonable person standard, i.e., “[a] person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996).

The subjective belief of law enforcement officials about whether a person is a suspect does not factor into the custody

determination unless an official’s subjective belief was somehow conveyed to the person who was questioned. “In assessing the circumstances, allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances.” Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997).

Courts look to the reasonableness of the officer’s actions, which is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Officers “may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety.” Id. at 117. Handcuffing does not establish custody but is only one of a range of relevant factors in determining that a suspect is in custody Court held that, under facts this case, D was not in custodyfor 5th Amendment purposes when he made statements at the scene even though D handcuffed and placed in the patrol car because officer testified D was not arrested but was merely being detained as a suspect for failure to stop and give information and the officers did not use an undue amount of force to apprehend or hold him.

14. Koch and custody v. detention and Miranda

Koch v State, 484 S.W.3d 482 (Tex App. - Houston [1st Dist.] 2016, no pet.) - At 10:00 p.m., person saw truck that had crashed into a fence and light post. Person saw D crouched over steering wheel inside the still-running truck. Person tapped D on the shoulder to get his attention, and D began mumbling. Person asked if D needed assistance, and D responded with gibberish. D then got out of his truck, staggered toward back of truck, and looked around before saying he needed to go. D got back into his truck and attempted to drive forward and his truck brushed against person. Person

concluded D was intoxicated and did not notice any injuries. Other bystanders at the scene called 9-1-1. Person removed D from truck so would not injure himself or others and pinned D against truck to prevent him from leaving. Person stayed at scene until officers arrived moments later.

Person told officers what he had seen. Officers opened truck door and two beer bottles fell out. Officer saw D sitting on sidewalk near truck and appeared groggy and tired, and officer could smell odor of alcohol when she spoke with D. Officer called dispatch and requested specialized DWI officer. While the DWI officer was on way, officer handcuffed D and placed him in the back of patrol car. Officer testified that D was not under arrest at that point but was instead detained to keep D safe and keep him from the scene so they could continue to investigate the scene. Officer continued to investigate the accident while D in patrol car.

DWI officer arrived and officer gave info they had obtained to another officer who continued the investigation, and they left the scene. Officer determined D had lost control, failed to maintain a single lane, and struck a fence. Officer saw bottles of alcohol in truck. DWI officer arrived and D asleep in back of patrol car. Officer could smell odor of alcohol on D’s breath, D mumbled and spoke with a slight slur, and D had bloodshot, droopy eyes. Officer did not read Miranda rights prior to speaking with D. The trial court admitted DVD of officer’s DWI investigation of D. D told officer D had been drinking beer and started drinking around noon. D on HGN had six clues and refused other SFST’s and breath/blood test. D arrested DWI.

The Court held that D was not in custody or under arrest at the time the officer asked him questions as part of the DWI investigation, and therefore the officer was not required to read D Miranda warnings before continuing the investigation. D’s encounter with the officers remained an investigatory

detention and was not converted to an arrest when D was cuffed and put in the patrol car. The officer explicitly told D that he was not under arrest but was instead being detained pending further investigation and the record showed that the officer did so to keep D safe and secure while officers continued to investigate the accident scene. Judgment affirmed.

15. Ivey and not in custody during hospital statement

Ivey v. State, No. 01-15-00804 CR (Tex. App. - Houston [1st Dist] 2017, pet. ref’d) (unpublished) - The trial court properly denied the suppression motion taken at the hospital because the D was not in custody so Miranda warnings were not required. At a suppression hearing, a D must initially prove a statement resulted from custodial interrogation. Gardner v State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009). “Custody” is proven only if the circumstances would cause a reasonable person to believe his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex Crim App. 1996). The issue is whether a reasonable person would have believed he was not at liberty to end the interrogation and leave. Nguyen v. State, 292 S.W.3d 671, 678 (Tex. Crim. App. 2009). This reasonableperson standard asssumes an innocent person. Dowthitt, 931 S.W 2d at 254. Whether a person was in custody is an objective view, so the subjective intent of the police is irrelevant unless communicated to the suspect. Id. The suspect’s subjective belief is also irrelevant. Id. Custody may arise in four situations: (1) the suspect is significantly deprived physically of freedom of action; (2) police state the suspect is not free to leave; (3) the police action would lead a reasonable person to believe that freedom of movement has been significantly restricted; or (4)

probable cause exists to arrest the suspect, and police do not tell the suspect she may leave. Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W 2d at 255.

The D argued the fourth situation occurred in this case because the police knew prior to the interrogation at the hospital that the complainant had died and the D’s driving caused the accident. The D argued the police had probable cause to arrest the D prior to the interrogation, and the police never told the D that the D was free to leave. The D thus argued Miranda rights were required before the interrogation. The fourth situation, however, “does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.” Dowthitt, 931 S.W.2d at 255; Gardner, 306 S.W.3d at 294 n.48. Factors relevant to a determination of whether restraint has become an arrest include the amount of force used, the length of the detention, the duration of the investigative process, whether the restraint is at the scene or after transported to another location, and whether police told the suspect he was under arrest or merely being detained for a temporary investigation. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). If a suspect is restrained for medical treatment and not by law enforcement, few of these factors apply Martinez v State, 496 S.W.3d 215, 220 (Tex App. - Houston [14th Dist.] 2016, pet. ref’d).

No force was used to restrain the D because the D was incapacitated from her injuries. The D was not handcuffed and could have terminated the interrogation at any time.

The police did not tell the D she was free to leave but did repeatedly inform the D she was not under arrest. The D also volunteered that she had taken meth in response to the officer’s open-ended inquiry about the prior day’s

events. Merely because the D incriminated herself, resulting in probable cause to arrest, did not create a custodial situation. Estrada v. State, 313 S.W.3d 274, 294 (Tex Crim. App. 2010). The facts of this case did not result in the D being in custody. It is the “compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning [is] conducted” that establishes custody under Miranda Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) (quoting Beckwith v United States, 425 U.S. 341, 346-47, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976)). The D was a suspect, but the officer did not restrain the D to the degree associated with arrest and did not deprive the D of physical freedom during or after the interrogation. The D failed to prove that a reasonable person in these circumstances would have felt deprived of freedom to the extent associated with formal arrest. Dowthitt, 931 S.W.2d at 255. The D was not in custody during the interrogation so Miranda warnings were not required. Herrera, 241 S.W.3d at 526. The denial of the suppression motion was reasonable.

C. Reading the DIC-24 and observation periods

1. Dorr and reading an obsolete DIC24 to defendant no affect on consent

State v. Dorr, No. 08-13-00305-CR (Tex App. - El Paso, February 13, 2015, no pet.) (unpublished) - An officer arrested D for DWI. The officer erroneously read the 2001 version of the DIC-24 to D rather than the 2011 version and D consented to providing a specimen of her blood. Trial court suppressed blood results for this reason. For the blood evidence to be excluded, the record must show there is a causal connection between the officer’s failure to warn D that he could obtain a warrant for her blood if she refused to

consent and D’s decision to submit to a blood test. State v Woehst, 175 S.W.3d 329 (Tex App. - Houston [1st Dist.] 2004, no pet.)(holding that the trial court correctly suppressed the evidence because a causal connection existed between defendant’s refusal to submit breath or blood specimen and officer’s inaccurate warning that if she refused, her license would be suspended for not fewer than 90 days, rather than not fewer than 180 days; defendant testified she would have consented if she had been properly warned that her license would be suspended for not fewer than 180 days). D did not testify at the suppression hearing and the record does not contain any other evidence showing that the statutory violation had any impact on her decision to consent to the blood test.

Court reversed and said trial court erred in suppressing the blood specimen and all evidence related to the blood test under Tex. Code Crim. Proc. Ann. art. 38.23 because the reading of the outdated statutory warnings under Tex. Transp. Code Ann. § 724.015 did not have any causal effect on D’s decision to provide a specimen of her blood for testing

2. Serrano and 15-minute observation period

Serrano v. State, 464 S.W.3d 1 (Tex. App. - Houston [1st Dist.] 2015, pet. ref’d) Officer stopped D for 81/65. Officer smelled odor of alcohol from the car and suspected D DWI because bloodshot eyes and slurred speech. D refused SFTS’s. At police station, officer met with breath test operator (BTO). Officer agreed with D’s counsel that BTO first came in contact with D when they entered the intox room where the breath test is conducted.

In intox room, BTO turned on a video recording device, read D a statutory warning, and requested a breath sample from D. The video recorded for approximately six minutes before BTO turned it off to conduct the breath

test. Officer testified that there was no time lapse from when the video ended until the time that D provided his breath sample. BTO testified that BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The suspects spend these 15 minutes in the intox facility’s holding cell, which has a metal door that is see-through. The BTO is not permitted to be inside the holding cell, so she stands outside of it for 15 minutes. There is frequently more than one BTO working at a time, so frequently one is in the hallway outside the holding cell observing the suspects while another is in the intox room administering a breath test. BTO’s assign each suspect a timer to ensure that he spends 15 minutes in the holding cell before a breath test is administered. After a suspect has been in the holding cell for 15 minutes, he is taken into the intox room where BTO turns on a video recorder, reads the suspect his statutory warnings, and administers the breath test on the Intoxilyzer. BTO testified that she did not specifically remember observing D for 15 minutes, but she said she must have administered the test because her identification information is on D’s test results and “there’s no way that [someone else] can use your information” to do a breath test. Additionally, BTO remembered recording the video of D before the breath test and that she appears on the video. Because BTO testified that she did not recall observing D for 15 minutes before administering the test, D moved to suppress the breath test results for the failure to meet the requirement that the suspect be observed for 15 minutes before the test. The trial court heard arguments on Serrano’s motion outside the presence of the jury and stated sua sponte that it would submit an article 38.23(a) jury instruction regarding whether the 15 minute requirement was met. “A breath specimen taken at the request or order of a peace officer must be taken and analyzed under the rules of the department [of public safety] . . . .” Tex.

Transp. Code Ann. § 724.016.

The rules for breath-alcohol-testing procedures are set forth in 37 Tex Admin. Code § 19 4(c) A presumption of admissibility applies when the procedures prescribed by DPS are followed. Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. 2006). Court stated that D “points to no evidence that contradicts [BTO’s] testimony that she must have observed Serrano for 15 minutes while he was in the holding cell because she followed standard procedures.” Further, “the Administrative Code does not require direct observation, much less ‘contact.’” See 37 Tex. Admin. Code § 19.4(c)(1) (“Direct observation is not necessary to ensure the validity or accuracy of the test result . . . .”).

Court held that trial court did not err by denying defendant’s motion suppress breath test results because BTO testified that she observed the 15-minute waiting period required by 37 Tex. Admin. Code § 19.4(c)(1) (2014). Based on the testimony that the BTO complied with 37 Tex. Admin. Code § 19.4(c)(1), D was not entitled to submission of a jury instruction under Tex Code Crim. Proc. Ann. art. 38.23.

D. Blood draws without a warrant

1. McGruder and 724.012(b)(3)(B) re w a r r a n t l e s s b l o o d d r a w unconstitutional

McGruder v. State, 483 S.W.3d 880 (Tex Crim. App. 2016) - Felony DWI 3d. An appellate court’s ruling that Tex. Transp. Code Ann. § 724.012(b)(3)(B), requiring an arresting officer to take a blood specimen from a repeat DWI offender who is arrested for that offense, without a warrant, was not facially unconstitutional could not stand because it had been held, in the interim, that Fourth Amendment challenges to statutes authorizing warrantless searches were no

exception to the general rule that facial constitutional attacks could proceed under a diverse array of constitutional provisions, and that the statute did not, by itself, form a constitutionally valid alternative to the Fourth Amendment warrant requirement. Judgment vacated.

2. Mitchell and “almost always” can draw blood draw from unconscious driver

Mitchell v. Wisconsin, ___U.S.___, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019) - If a driver is unconscious and cannot be given breath test, exigent circumstances rule almost always permits a blood test without a warrant. With unconscious driver, it is very likely driver would be taken to emergency room to have blood drawn for medical treatment even if PO was not seeking BAC information. PO’s sometimes find unconscious driver after PO gets to accident scene where PO may also have other injured people or traffic control issues which may be incompatible with the procedures required to get a warrant. Thus, if driver unconscious, general rule is that a warrant is not needed.

3. Ruiz and can draw blood from unconscious person; exigency TBD

State v. Ruiz, 581 S.W.3d 782 (Tex. Crim. App. 2019) - Felony DWI where D fled scene car wreck and PO found D unresponsive in nearby field and took D to hospital. PO read DIC to unconscious D (so D unable to make self-determination or choice and could not hear the warnings read to him and could not limit or revoke his consent) and ordered warrantless blood draw. TCCA held implied consent not valid reason to draw blood under these circumstances and, regarding exigency, case is remanded to court appeals in light of Mitchell v. Wisconsin On remand in State v. Ruiz, 622 S.W.3d 549 (Tex. App. - Corpus

Christi 2021, no pet.), the court of appeals held exigent circumstances justified the warrantless blood draw pursuant to Weems and Mitchell The prosecution established the following facts: (1) a car crash after which the defendant fled the scene and was found unconscious in a nearby field; (2) the defendant unconscious the rest of the night; (3) at the hospital, doctors kept the defendant hospitalized overnight due to his condition; (4) no local police procedures were in place to obtain blood search warrants; (5) it would have been difficult to find a judge to sign the blood warrant at that time of day; (6) it would have been difficult to find a judge that time of day and it would have taken two or three hours to obtain a warrant that night; and (7) only two officers were on duty that night and one officer could not be taken away from police duties in order to obtain a warrant that would take over two hours to procure.

4. Cole and warrantless blood draw proper b/c exigency

Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016) - Intox manslaughter case. At 10:30 p.m., D drove his large pickup truck 110 miles per hour down a city street running the red light at a busy intersection and striking another pickup truck causing an explosion and engulfing the other truck in flames. The other driver was killed instantly. Officer arrived at scene and saw other driver in driver’s seat but was unsure he was dead. Officer also saw D’s truck against a nearby building with fire approaching it. D was in the driver’s seat yelling for help, but officer could not open the doors. By this time, other officers arrived and began attempting to put out the fires. With the help of the other officers, officer was able to remove D from his heavily damaged truck’s driver’s seat. Officer then started to secure the area to make sure nobody entered the accident scene. Activityand traffic was considerable so the officer stated that, from a law enforcement

and public safety perspective, they needed as many officers on the scene as they could possibly get. The fire and its continued explosions required keeping people away for their own safety. The fire’s danger required blocking off several major intersections around the area.

The accident occurred around a shift change which further complicated satisfying the manpower needed to secure the scene, conduct an investigation, and maintain public safety An officer arrived at the scene and spoke to D who was sitting on the ground. D was confused and did not know where he was. EMS arrived and D told EMS he had taken some meth. At the hospital, D was mumbling incoherently to himself and experiencing involuntary leg and hand movements. Officer described this behavior as “tweaking” – a condition consistent with meth intoxication. An officer spent approximately three hours investigating the scene of the accident. Fourteen officers were dispatched to assist with the scene.

The entire accident scene was not cleaned up and cleared until 6:00 the following morning D was arrested at 11:38 p.m. and refused to provide a blood sample and kept he used "meth" and was not drunk every time the officer read the word “alcohol” or “intoxication” in the statutory warning. The officer requested hospital staff draw D’s blood which was drawn at 12:20 a.m. and revealed D’s blood contained intoxicating levels of amphetamine and meth. Trial judge overruled motion to suppress and court of appeals reversed.

TCCA reversed the court of appeals and held, “From our review of the totality of the circumstances, we conclude that law enforcement reasonably believed that obtaining a warrant in this case would have significantly undermined the efficacy searching Cole's blood. The circumstances surrounding the taking of Cole’s blood sample demonstrate that obtaining a warrant was

impractical. Like the officer in Schmerber, law enforcement was confronted with not only the natural destruction of evidence through natural dissipation of intoxicating substances, but also with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. We therefore conclude that exigent circumstances justified Cole’s warrantless blood draw.” “Only after the investigator measured, calculated, and assessed the vehicles’ damage was he able to form probable cause to believe that defendant was responsible for the accident and the victim’s death.” “Both the time required to complete the accident investigation and the lack of available law enforcement personnel further hindered pursuing the warrant process.” “The record did not establish that there was a readilyavailable officer who could have gotten a warrant while the investigator continued his investigation and another officer kept defendant in custody at the hospital.” “Without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know how much evidence it was losing as time passed.”

5. Cosino and proper warrantless blood draw proper b/c exigency

Cosino v. State, 503 S.W.3d 592 (Tex. App. - Waco 2016, pet. ref’d) - D charged with felony DWI following a two-vehicle accident. D and driver of the other vehicle were taken to a hospital for medical treatment. While D was at the hospital, the investigating state trooper asked a nurse to conduct a mandatory blood draw under section 724.012 of the Transportation Code which permits an officer to take a blood specimen upon refusal of the driver, where as a direct result of the accident, an individual other than the driver has suffered bodily injury and has been transported to a hospital for medical

treatment. The blood draw occurred two and one-half hours after the crash and showed 0.35.

Trooper stated that he was the sole trooper on duty in the county, he did not arrive on the scene until almost an hour after the crash and long after D was taken to the hospital, the trooper had to clear the highway and investigate the crash before leaving the scene, D’s refusal and the mandatory blood draw occurred two and a half hours after the collision, and the trooper testified that if he had had to get a warrant it would have taken another hour to an hour and a half and valuable evidence would have been lost. Trooper did not attempt to obtain a warrant. The Court held that State met its burden to show exigent circumstances that made obtaining a search warrant for D’s blood draw impractical under the above facts.

6. Couch and warrantless blood draw improper b/c no exigency (FOF/COL)

State v. Couch, No. 03-16-00727-CR (Tex App. - Austin, October 31, 2018) (unpublished), vacated, remanded, State v. Couch, No. PD-1372-18 (Tex Crim. App., May 8, 2019) (unpublished), State v. Couch, 595 S.W.3d 748 (Tex. App. - Austin 2019, pet. ref’d) - PO arrested D for Intox Assault and Agg Asslt DW after an accident and took D to a hospital where D’s blood was drawn without a search warrant. The trial judge granted the motion to suppress finding no exigency The court appeals reversed finding exigency as an exception to the warrant requirement. The court claimed many factors led to exigency: (1) there was a headon accident resulting in EMS and police being dispatched even though no extreme action to extract as in Cole; (2) dispatched officers were busy with scene; (3) no officer available to get a warrant; and (4) delay between accident and time to get D to a hospital. D filed a PDR with

TCCA.

In the TCCA, D claimed court appeals erred by reversing trial judge’s granting of motion to suppress for no exigency because court appeals used improper analysis and failed to give proper deference to trial judge’s FOF/ COL. TCCA remanded because court appeals did not have benefit of State v. Garcia, 569 S.W.3d 142 (Tex. Crim. App. 2018) (“Reviewing courts should afford ‘almost total deference’ to the trial judge’s findings on matters of historical fact, especially when those findings ‘are based on an evaluation of credibility and demeanor.’

But ‘application[s] of law to fact’ or ‘mixed questions of law and fact’ are entitled to deference only if they ‘turn[] on an evaluation of credibility and demeanor.’ Otherwise, they are reviewed de novo) in which TCCA addressed deference a reviewing court owes to trial judge’s FOF/COL in deciding exigency

On remand, court of appeals affirmed the granting of the motion to suppress and found no exigent circumstances.

noticed a strong smell of alcohol coming from the inside of the car. She called 911.

Officer dispatched to the scene and a woman waved him down and pointed to a parked car and told him that someone was under her car and that he did not belong there. When officer approached the parked car, he saw an injured man under the car matching the driver’s description. Officer detained D at 12:17 a.m. and noticed D’s bloodshot eyes, slurred speech, bloodied face, and inability to stand on his own. Another officer took D into his custody and noticed the strong odor of alcohol on D’s breath, bloodshot eyes, unsteadiness on his feet, and slurred speech. Officer thought D suffered injuries as a result of the accident, so he did not conduct any SFST’s. Based on his observations, officer concluded D had lost the normal use of his mental and physical faculties due to alcohol and arrested D for DWI

Weems v. State, 493 S.W.3d 574 (Tex Crim. App. 2016) - Felony DWI case. Around midnight, D drove himself and a friend back to his house from a nearby bar. On the way, D’s car slowly veered off the road, flipped over on to its roof, and struck a utility pole. Shortly after the accident, a passing car stopped after seeing the car on its roof with its tires still spinning The driver was the first on the scene. She saw D get out of the car through the driver’s side window. D got out of the car and tried to stand, but was stumbling and having difficulty maintaining his balance. When she asked if he was okay or if he was drunk, D said he was drunk. He then ran from the scene. D’s passenger was leaning against a post and was “beat up pretty bad from the accident.” The driver of the passing car

D refused to give a breath or blood sample. D was treated by EMS at the scene and complained about neck and back pain so EMS transported him to a hospital. The officer followed the ambulance to the hospital, and it took only a couple of minutes to get from the accident scene to the hospital. At hospital, officer filled out a form requesting a blood draw and gave it to the nurse in charge. Because the hospital was particularlybusythat night, D’s blood was taken at 2:30 a.m., over two hours after his arrest and showed 0.18. D sought to suppress the blood-test results at trial relying on McNeely Without making any findings of fact or conclusions of law, the judge overruled D’s objection and admitted the test results.

The TCCA held that, while evading law enforcement by fleeing the accident scene and hiding, D’s “blood alcohol concentration potentially continued to diminish, and with it, possible evidence to prove or disprove his level of intoxication at the time of driving.”

“Aside from defendant’s own self-imposed delay and the forty minutes worth of alcohol

7. Weems and warrantless blood draw improper b/c no exigency

dissipation, little else in the record lent support to finding exigency.” The officer’s testimony suggested that substantial delay in obtaining D’s blood was at least foreseeable, but another officer’s presence at the hospital militated against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence. “McNeely commands that ‘where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.’” “On this record, the State is unable to demonstrate that practical problems existed in obtaining a warrant ‘within a timeframe that still preserved the opportunity to obtain reliable evidence.’” “The State failed to meet its burden and establish that exigency circumstances existed to satisfy the Fourth Amendment’s reasonableness standard.”

8. McGuire and warrantless blood draw improper b/c no exigency

McGuire v. State, 493 S.W.3d 177 (Tex App. - Houston [1st Dist.] 2016, pet. ref’d), cert. denied, ___U.S.___, 137 S.Ct. 2188, 198 L.Ed.2d 255 (2017) – Ft. Bend County 0.16 DWI3d fatality case. Driver refused to submit blood, so officer obtained blood without SW. In Missouri v. McNeely, USSC held that exigency exception for preventing the destruction of evidence does not create a “per se” rule excusing an officer from obtaining SW with drunk driver whose alcohol content is steadily diminishing through the natural dissipation of alcohol. Instead, whether SW is required for a nonconsensual blood draw of DWI suspect must be decided using the same totality of-the-circumstances test used for exigencyexceptions in other circumstances. In State v Villarreal, TCCA held the Texas implied consent statute does not provide

effective consent to a warrantless search if a suspect has expressly refused or revoked consent to the search. When a suspect refuses a blood draw, 4th Amend requires either SW or exception to SW requirement. Thus, whether officer is excused from obtaining SW in DWI case with dissipating alcohol is analyzed under a totality-of-the-circumstances review for exigent circumstances. State v. Tecero, held that officer’s good faith belief that Tex Transp Code permitted nonconsensual, warrantless blood draw is irrelevant to whether blood-draw results should be suppressed under 4th Amend.

In case at bar, State listed 24 facts it argued established exigent circumstances to justify warrantless search including: (1) accident occurred late at night; (2) D no longer at scene when police arrived and had to be brought back; (3) accident site needed to be secured and investigated; (4) officers needed to manage traffic in area; (5) although prosecutors on call day/night to assist officers with obtaining a SW, the magistrates, themselves, were not on call and would have had to be located; and (6) on at least one occasion unrelated to this case, a judge could not be found to issue a SW But officers did not attempt to secure a SW – officer testified he took “zero steps” to obtain a SW to draw D’s blood. “The State argues that it may have proven difficult to locate a judge to sign a warrant, but, without any effort to do so, the testimony is only speculation.” Under the totality of the circumstances, Court held State failed to demonstrate an exigency to excuse the requirement of a warrant.

9. Bonsignore and warrantless blood draw improper b/c no exigency

Bonsignore v. State, 497 S.W.3d 563 (Tex App. - Forth Worth 2016, pet ref’d) Felony DWI 3d. The warrantless blood draw violated D’s 4th Amendment rights because, “considering the totality of the circumstances,

including the fact that the police department was a small department, the dissipation rate of the alcohol in defendant's blood, and the seriousness of the offense taken together, the State failed to meet its burden to show any exigent circumstances justifying the failure to obtain a warrant.” “There was no evidence that understaffing of the police force was an emergency, there was no evidence that an actual emergency arose that would have required a fourth officer, and there was no evidence regarding how any anticipated delay in procuring a search warrant would have jeopardized the State’s ability to retrospectively reconstruct D’s blood alcohol content. The judgment was reversed and remanded for a new trial.

10. Sanders and warrantless blood draw improper b/c no exigency

State v. Sanders, 535 S.W.3d 891 (Tex. App. - Fort Worth 2017, pet. ref’d) Fourth Amendment required suppression of evidence from warrantless blood draw after an accident because prosecution failed to carryits burden that exigent circumstances existed. There were numerous officers and emergency personnel available, some officers were not very busy, officers had observed evidence of intoxication, a magistrate was at the scene of the accident, five minutes from the hospital, and the deputy simply believed he did not need a warrant; there was no evidence of what procedures existed for obtaining a warrant.

“The Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.’” “A warrantless search of a person is reasonable only if it falls within a recognized exception.” State v. Villarreal, 475 S.W.3d 784, 796 (Tex Crim. App. 2014), cert. denied, 136 S. Ct. 2544, 195 L Ed. 2d 869 (2016). “Bodily intrusions implicate an

individual’s ‘most personal and deep-rooted expectations of privacy,’ and therefore they are considered searches that fall under the Fourth Amendment’s warrant requirement.” Missouri v McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013). “There are several exceptions to the warrant requirement, but the instant case involves only one – a warrantless search performed to prevent imminent evidence destruction, or the so-called ‘exigency exception.’” Cupp v. Murphy, 412 U.S. 291, 296, 93 S. Ct. 2000, 2004, 36 L. Ed. 2d 900 (1973).

The exigencyexception applies “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 569 U.S. at 148-49, 133 S. Ct. at 1558. “Exigency potentially provides for a reasonable, yet warrantless search ‘because “there is compelling need for official action and no time to secure a warrant.’” McNeely. “Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances.” Id. “[A] warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’” Mincey v Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978). “An exigency analysis requires an objective evaluation of the facts reasonably available to the officer at the time of the search.” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L Ed. 2d 650 (2006).

“The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a ‘now or never’ situation.” McNeely. “The body’s natural metabolism of intoxicating substances is distinguishable from the potential destruction of easily disposable evidence when the police knock on the door.”

Under the facts of this case, “We conclude, as the Weems court did, that the totality of the circumstances found on this record militates against a finding that practical problems prevented Neff from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence of Sanders’s blood alcohol content.”

11. Garcia and warrantless blood draw improper FOF/COL; evid-destroy med treatment

State v. Garcia, 569 S.W.3d 142 (Tex. Crim. App. 2018) - If officer objectively reasonably believes that an evidence destroying medical treatment is imminent, the Fourth Amendment does not require the officer to wait until the treatment is mere moments away before he may act.

“A warrantless search is per se unreasonable under the Fourth Amendment unless it falls within a recognized exception to the warrant requirement.” “The wellestablished ‘exigent circumstances’ exception applies when ‘the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’” “Under this exception, a law-enforcement officer may be justified in conducting a warrantless search ‘to prevent the imminent destruction of evidence.’”

In DWI cases, “the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case” – but “it does not do so categorically.” “Instead, any exigent-circumstances review should be informed by the totality of the facts and circumstances available to the officer and analyzed under an objective standard of reasonableness.” “[W]here police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that theydo so.”

In this case, the “exigency, if any, arises only from the dual inferences that, based on these facts, (1) the nurse was about to infuse a substance into Garcia's bloodstream, and (2) this infusion might adversely affect the integrity of the blood evidence.” “If reasonable, these inferences should be considered in determining whether, as a matter of law, the officers faced an objective exigency relieving them of the obligation to obtain a warrant.” A trial judge “should take into account, not only the well-known ‘natural dissipation’ of alcohol in the body, but also ‘the procedures in place for obtaining a warrant, the availability of a magistrate judge, and the practical problems of obtaining a warrant within a timeframe that still preserves . . . reliable evidence.’”

“The United States Supreme Court has expressly ‘decline[d] to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.’” “And, insofar as the severity of the accident might have adversely affected the officers’ ability to apply for a warrant – which sometimes occurs because the manpower necessary to begin the warrant process is fully invested in controlling a chaotic crime scene – under the trial judge’s findings, no such concern was present in this case.” “As the court of appeals noted, Officer Rodriguez was able to depart the crime scene less than an hour after his arrival to begin drafting a warrant affidavit ” “This demonstrates a reasonable police judgment that, at least at the time the warrant process was initiated, the delay inherent in obtaining a warrant did not pose a significant risk of undermining the efficacy of a blood draw.”

“The officers’ testimony was uniformly to the effect that they suspected Garcia of alcohol-induced intoxication. There is nothing in the record to show how or why the officers might reasonably have suspected that Garcia was also using cocaine. A search

cannot be justified by what it uncovers. Accordingly, we will not consider evidence that Garcia was under the influence of cocaine in reviewing de novo the reasonableness of the officers’ search.”

“In the emergency-room setting, the officer faces an impossible choice between (1) delaying a potentially life-saving treatment to obtain the best possible evidence or (2) allowing that evidence to be spoiled so that a suspect’s life might be saved. With these concerns in mind, we do not believe the Fourth Amendment requires police officers to wait until an I.V. needle is inches away from the suspect’s arm before they may legally intervene – at which time, paradoxically, they might be duty-bound not to intervene. We do not hesitate to say that, if an officer is actually aware of facts from which an objectively reasonable officer could conclude that an evidence-destroying medical treatment is imminent, the Fourth Amendment allows the officer to take any reasonable steps to preserve the integrity of the imperiled evidence.”

“But in this case, the trial judge’s record-supported findings show that these officers were not faced with any such dilemma The trial judge repeatedly emphasized his finding that, as a matter of historical fact, at the time the officers ordered the phlebotomist to take a sample of Garcia’s blood, all medical treatment of Garcia had stopped.” Based on the facts of this case, “considering this medical-treatment evidence in conjunction with the severity of the accident and the supposedly underdeveloped warrant processes in El Paso County, we conclude that the trial judge’s recordsupported findings weigh against the existence of an exigency in this case. If obtaining a warrant was reasonably feasible at the beginning of the application process, and the trial judge rejected the factual basis of the only plausible intervening cause that could make that process impractical to complete, then abandoning the already-begun warrant-

application process and instead conducting a warrantless blood draw was objectively unreasonable.”

12. Bell and warrantless blood draw improper b/c no exigency or consent

Bell v. State, 485 S.W.3d 663 (Tex. App. - Eastland 2016, no pet.) - SJF DWI with child passenger. Officer saw a car that failed to come to a complete stop at a stop sign. Officer followed the vehicle, activated his patrol lights, and had the vehicle stop as part of a traffic stop. Officer approached the vehicle and identified D as the driver. He also noticed that there was a four-year-old boy in the backseat of the car. D’s answers seemed delayed and his speech was coming very slow. Odor of alcohol on D, but D denied that he had been drinking and failed to give a reason for why he smelled of alcohol. D performed poorly on SFST’s. Officer arrested D for DWI and D refused breath/blood test.

Officer took D to a hospital to “get a mandatory blood draw” because the presence of the child in D’s car required him to do so. Officer proceeded under the impression that the Texas Transportation Code provided him with implied consent to take a specimen of D’s blood. D jerked his arm away which caused a blown blood vein and again told the officer no blood draw. Eventually, a specialty technician took a specimen of D’s blood while officers and hospital security physically restrained him. Blood tests revealed that Appellant's blood alcohol level was 0 171. Officer did not question or interview D after the blood draw. He never secured a search warrant because, given the presence of the child in the backseat of the car, he thought he had the authority to take a blood specimen. Court held that, in this case with this charge, trial court erred when it denied D’s 4th Amendment motion to suppress the evidence from the blood draw under Tex Transp. Code Ann. § 724.012 because D did not consent and

even refused to give a blood specimen, there was no exigent circumstance, and the exclusionary rule applied.

13. Colura and warrantless blood draw improper b/c no consent

Colura v. State, 510 S.W.3d 218 (Tex. App. - Houston [1st Dist.] 2016, no pet.)Felony DWI case. Close to midnight, D was stopped for driving in a manner that suggested he was intoxicated. D made rapid multi-lane changes, pulled up quickly to two stop lights, and revved his engine and squealed his truck’s tires suggesting that he was going to race. D had slurred speech and glassy, bloodshot eyes, and alcohol on breath. Outside truck, D appeared to stumble. D admitted to having six beers and had six clues on the HGN. D refused WAT and OLS. Officer then read statutory warning to D, informed D that he would be placed in custody for suspicion of DWI, and requested a voluntary blood sample which D refused. The wrecker arrived within 15 minutes.

Officer took D to a hospital about a quarter of a mile away where his blood was drawn involuntarily without a warrant. The officer decided to obtain the involuntaryblood draw because D had at least two prior DWI convictions. Officer testified that he did not believe that a warrant was necessary under the circumstances. He admitted that his offense report did not mention any exigent circumstances; he had no witnesses to interview and nothing else would have caused an unusual delayin securing a warrant. Officer testified he was working that evening to fill in for officers who were out sick. The shift was short-handed that night, staffed by four officers instead of the usual six or seven. One officer had stopped and assisted him with an inventory of D’s truck and waited with him for the tow truck, but this officer was called away to assist with another call and did not go to the hospital with the officer. The officer

knew the procedures available for obtaining a search warrant. Because it was late at night, an officer or other law enforcement person would have to call the judge and explain the situation and then go to the judge’s residence to obtain a signature on the warrant. Officer acknowledged that he knew that an ADA was on call that night who could have helped him prepare an affidavit and a warrant and contact the judge. He did not contact the ADA on call. He recalled an instance after this night when he had to obtain a warrant in which the process on that occasion took about two-and-a-half to three hours. The State stipulated that D’s blood was drawn without his actual consent and without a warrant. D preserved the issues raised in his motion to suppress for appellate review because through his motion to suppress and his motion to reconsider, D made timely and specific objections to support exclusion of the blood draw evidence. The Court held the blood results should have been suppressed because D refused to submit to a blood draw, the record did not contain any explanation for the failure to obtain a warrant or that any anticipated delay would have jeopardized the ability to obtain evidence of intoxication, and the State relied heavily on the blood draw evidence.

14. Fears and warrantless blood draw improper; delay/anger/no exigency

Fears v. State, 491 S.W.3d 884 (Tex App. - Houston [1st Dist.] 2016, pet ref’d) In a DWI case, the trial court erred in denying D’s motion to suppress evidence of his blood sample, as neither the delay required to obtain a warrant from one of 13 magistrate judges in the county nor D’s belligerence constituted exigent circumstances justifying a warrantless draw of D’s blood. “As the trial court’s erroneous denial of defendant’s motion to suppress evidence of his blood alcohol level obtained in violation of the Fourth

Amendment contributed to his decision to plead guilty and to his subsequent punishment, the error was not harmless.” The judgment was reversed.

15. Perez and warrantless blood draw improper; PO’s good faith insuff

Perez v. State, 495 S.W.3d 374 (Tex. App. - Houston [14th Dist ] 2016, no pet.) Felony DWI case. D admitted to having consumed at least one alcoholic drink that evening, officer detected alcohol on D’s breath, D failed HGN, and officer believed D was intoxicated. Officer obtained blood sample without a warrant. Court held that the taking of D’s blood sample without a warrant violated his 4th Amendment rights because State did not show that D consented. The federal good-faith exception did not apply because, since Tex Transp. Code Ann. § 724.012 did not require that the officer obtain a blood draw without a warrant, the officer could not have relied in good faith on the statute to conclude that no warrant was required. The State argued the warrantless blood draw was authorized under Donjuan v. State, 461 S.W.3d 611 (Tex App. - Houston [14th Dist.] 2015, no pet.). In Donjuan, the doctor asked the defendant, “Can I draw your blood?” The defendant replied “yes.” Id. Based on this affirmative reply, the defendant gave express consent to the doctor, as the request would have indicated to a reasonable person that he was free to refuse. Id “The facts in this case are notably different.” The nurse did not ask D for consent, nor did D make any statement that expressed consent to the blood draw. Court refused to infer a DWI suspect’s consent from his choice not to physically resist the medical professional conducting the blood draw. The record failed to indicate D impliedly consented to the blood draw. “This case, however, concerns the first part of the Schmerber inquiry.” “Neither party challenges the reasonableness of using a

venipuncture blood draw in this case or the reasonableness of the blood draw’s execution.”

The issue on appeal was whether the State was justified in requiring a blood draw. The trial court erroneously placed the burden on D to prove the blood draw was unreasonable. “Because the parties stipulated that no warrant was obtained and appellant challenged the State’s authority to conduct the blood draw without a warrant, the State had the burden to prove an exception to the warrant requirement.” While it is true that a D has the burden to overcome the presumption that venipuncture blood draws are reasonable under the 4th Amendment, “the burden is on the State in this case because appellant challenges its authority to perform the blood draw without a warrant.” The trial court’s emphasis on the means and procedures of the blood draw was misplaced because it overlooked the issue in dispute: whether the State had the authority to conduct the blood draw. Court refused “to recognize an exception to Article 38.23 based on an officer’s good-faith reliance upon something other than a warrant because such an exception is inconsistent with the plain language of the Texas exclusionary statute.”

16. Molden and warrantless blood draw improper; PO’s good faith insuff

State v. Molden, 484 S.W.3d 602 (Tex. App. - Austin 2016, pet. ref’d) - Felony DWI 3d. Officer dispatched for a reckless driver call and saw D with erratic driving and FMSL Officer initiated a traffic stop and saw several signs of intoxication. After SFST’s, officer arrested D for DWI. D agreed to provide a breath sample but failed to successfully give a sample because he refused to seal his lips on the intoxilyzer device which resulted in an invalid test. Officer deemed this to be a refusal so asked D for a blood specimen which D refused. Officer then discovered that D’s

criminal historyreflected two prior DWI’s and obtained a mandatory blood draw from D in accordance with section 724.012(b)(3)(B) of the Texas Transportation Code.

Court held that D’s refusal to provide a blood specimen, after failing to provide a valid breath sample, revoked anyprior implied consent under Tex. Transp. Code Ann. § 724.012. “Given the limited nature of the Texas good faith exception to the exclusionary rule, Tex Code Crim. Proc. Ann. art. 38.23, the officer’s good faith reliance on the law or good faith reliance on existing appellate precedent were not recognized as exceptions.” “Reasonable reliance on a warrant was an exception to the exclusionary rule, but there was no warrant in this case and therefore article 38.23's explicit good faith exception was inapplicable.”

17. Hill and warrantless blood draw improper; PO’s good faith insuff

State v. Hill, 484 S.W.3d 587 (Tex. App. Austin 2016, no pet.) Felony DWI 3d. D struck a patrol car that was executing a U-turn (with its emergency lights activated). After an investigation, D was arrested for DWI and refused breath/blood test. Since this was a DWI 3d, the arresting officer directed a phlebotomist at the jail to perform a mandatory blood draw in accordance with section 724.012(b)(3)(B) of the Texas Transportation Code. Court held that when blood was taken from D without his consent, there were no exigent circumstances, no warrant was issued, and the sole authority for drawing D’s blood was Tex. Transp. Code Ann. § 724.012(b)(3)(B), D’s refusal to consent revoked any prior implied consent. The exclusionary rule barred admission of the blood analysis results. The officer’s good faith was irrelevant because good faith reliance on a statute was not an exception to the Texas exclusionaryrule, Tex Code Crim. Proc. Ann. art. 38.23. Because there was no warrant for

the blood draw, article 38.23's explicit good faith exception was inapplicable.

18. Swan and warrantless blood draw improper; PO’s good faith insuff

State v. Swan, 483 S.W.3d 760 (Tex. App. - Forth Worth 2016, no pet.) - Felony DWI 3d. A warrantless search and seizure of D’s blood purported to be justified only by Tex Transp Code Ann. § 724.012's requirement was unconstitutional The non-consensual and warrantless search and seizure of D’s blood, which the officer conducted under § 724.012 and without facts supporting an independent exception to the warrant requirement, violated D’s rights under 4th Amendment. Good faith exception does not apply regarding what officer believed to be the law at the time of the search. Judgment affirmed.

19. Roop and warrantless blood draw improper; PO’s good faith insuff

Roop v. State, 484 S.W.3d 594 (Tex. App. - Austin 2016, pet. ref’d) - Felony DWI 3d. An arresting officer who relied on Texas’s mandatory blood draw statute, Tex Transp. Code Ann. § 724.012(b)(1) to take D’s blood following a collision violated D’s 4th Amendment expectation of privacy. “There was a magistrate on duty 24 hours a day at the municipal court building, which was about two and-a-half miles from the scene of the accident, but the officer made no effort to obtain a search warrant.” “The statute required an officer to take a blood draw if an individual suffered serious bodily injury as a result of the DWI, but it did not mandate that he do so without a warrant; therefore, he did not act in good faith reliance on the statute.” Reversed and remanded.

20. Kressin and officer incorrectly thought warrantless blood draw

Kressin v. State, 525 S.W.3d 389 (Tex. App Houston [14th Dist.] 2017, no pet.) The Fourth Amendment did not require suppression of evidence of the first of two blood draws taken from defendant after a fatal freeway accident because, despite contrary testimony from an officer, the record showed that the challenged blood draw was taken pursuant to a valid warrant. Judgment affirmed.

21. Martinez and blood seized/tested beyond scope hospital blood draw

State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) - The judge properly granted motion to suppress challenging seizure/search of D’s blood drawn at hospital for medical purposes b/c government’s testing was a warrantless search of D’s blood and no exception to warrant requirement applied. No evidence D intentionally abandoned the blood at hospital b/c D had subjective expectation of privacy in blood. Third party doctrine did not apply b/c surrender of blood to hospital was not result of voluntary choice. HIPAA was silent regarding protection of vials of blood b/c HIPPA protects identifiable health information as contained in medical records.

22. Hyland and excised blood warrant affidavit “clearly” shows PC

Hyland v. State, 574 S.W.3d 904 (Tex. Crim. App. 2019) - D operating motorcycle with wife passenger and had accident that seriously injured D and killed wife. PO got search warrant (SW) and drew blood which showed D intoxicated. Judge did Franks hearing and excised parts of SW affidavit, and judge held remaining facts in affidavit did not support a PC finding that evidence of DWI would be found in D’s blood. The excising of false statements from affidavit does not trigger a heightened PC standard that the affidavit must “clearly” establish probable cause. The

remaining facts in SW affidavit showed existence of PC because D was known to be driver of motorcycle recently involved in serious accident resulting in fatality and serious injuries to D, and PO smelled strong odor of alcohol on D’s person.

E. Blood draws with a warrant

1. Crider and blood draw warrant need not include both seize & test

Crider v. State, No. PD-1070-19 (Tex. Crim. App., September 16, 2020) - The introduction of evidence of the result of the chemical testing at Appellant's trial, in the absence of any explicit authorization for such testing in the search warrant (or in a separate search warrant), did not violate his Fourth Amendment rights. “In [State v. Martinez, 570 S.W.3d 278 (Tex Crim. App. 2019)], this Court recently reiterated what it had held in previous opinions: that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of that blood. Id at 290; see also State v. Huse, 491 S.W.3d 833, 840 (Tex Crim. App. 2016) (“[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.”); State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App 1997) (“Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy.”) (citing Skinner v. Ry. Labor Exec.'s Ass'n., 489 U.S. 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)). Martinez is distinguishable from Crider in that in Martinez “the State obtained the already-extracted blood sample from a treating hospital and, without a magistrate's finding of probable cause, had that blood

sample tested for intoxicants. Martinez, 570 S W 3d at 281 Having previously acknowledged that a chemical test conducted at the behest of the State constitutes a discrete and separate invasion of a legitimate expectation of privacy, we held that the warrantless test was unconstitutional. Id. at 292.” In Crider, “Here, the State obtained the blood sample by way of a magistrate’s determination that probable cause existed to justify its seizure-for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate’s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face.”

2. Ramirez and 2d warrant not required to test and 3-day period does not apply

In Ramirez v. State, 611 S.W.3d 645 (Tex. App. - Houston [14th Dist.] 2020), the court of appeals held, consistent with Crider, that when blood is drawn pursuant to a warrant that allows for the blood draw, a second warrant is not then required before testing the blood. The court also held as an issue of first impression that the blood testing need not be completed within the three-day period set out in Article 18.07(a)(3) of the Texas Code of Criminal Procedure which provides that a search warrant must be executed within three days. “We conclude that, based on the plain language of chapter 18 of the Code of Criminal Procedure set out above, the three-day requirement for the execution of a search warrant sets the limit for the actual search for and seizure of the evidence by a peace officer, not the timing for any subsequent forensic analysis that may be conducted on the seized evidence.”

3. Davis and length of time to test after

blood seized with warrant

Davis v. State, No 608 S.W.3d 283 (Tex App. - Houston [1st Dist.] 2020, no pet.) - “The Texas Code of Criminal Procedure provides deadlines for execution of search warrants, and it sets out the general rule that a search warrant must be executed within three days of the day it was issued, except in other circumstances not applicable here. See Tex Code Crim. Proc. art. 18.07(a) The record established that Davis’s blood sample was obtained by the HCSO the same day that the warrant was issued. The State thus took control of the blood sample for purposes of obtaining blood evidence relevant to Davis’s DWI charge at that time and, therefore, it was executed within the timeframe allowable under article 18.07. See id.; id art. 18.06(b) (describing requirements for execution of warrants). Davis points to no authority, nor could we find any, providing additional deadlines for the testing of blood collected under these circumstances.”

4. Arellano and blood warrant lacking legible magistrate’s signature

State v. Arellano, 600 S.W.3d 53 (Tex Crim. App. 2020) - “Code of Criminal Procedure Article 18.04(5) requires, in part, that a search warrant contain a legible magistrate’s signature. So what effect does an illegible magistrate’s signature have upon the applicability of the statutory good-faith exception? See Tex Code Crim. Proc. art. 38.23(b) (setting forth statutory good-faith exception). The short answer is none. Therefore, we vacate the judgment of the court of appeals and remand this case to that court for further proceedings.”

5. Hodges and blood draw warrant void b/c unsworn affidavit

State v. Hodges, 595 S.W.3d 303 (Tex.

App. - Amarillo 2020, pet. ref’d) - SW was issued to draw blood from D for DWI Affidavit in support of SW was signed by PO1 at direction of PO2 who then signed the jurat. Both PO’s testified at suppression hearing that no one administered any type of oath to PO1, and the magistrate who issued the SW did not administer any oath to assess the truthfulness of PO1's statements. “[B]efore a written statement in support of a search warrant constitutes a ‘sworn affidavit,’ the requisite oath must be administered before a magistrate or other qualified officer.” The court of appeals held that the trial judge properly granted the motion to suppress because the SW was void because it was founded on an unsworn affidavit.

6. Fikes and blood draw unreasonable if risk of infection

State v. Fikes, 585 S.W.3d 636 (Tex. App. - Austin 2019, no pet.) - Phlebotomist (P) drew D’s blood. Before the blood draw, P arranged various items on the top of the “sharps container,” also called the “biohazard bin.” D entered room and P put on a pair of gloves from the top of the sharps container. While wearing the gloves, P ran P’s hands through P’s hair and put on a sweater. D sat in a chair near the sharps container and trash can. P applied tourniquet to D’s arm that P removed from the top of the sharps container. P then removed two unopened packages of disinfectant wipes from the top of the sharps container, opened one package, and wiped D’s arm. P threw the package and used wipe into the trash can, opened the other package, wiped D’s arm again, and threw the second package and wipe into the trash. P then removed a piece of gauze that was not in a package from the top of the sharps container and placed it on the armrest of D’s chair and removed a syringe in a package from the top of the sharps container, opened the package, and filled two vials with D’s blood. After drawing the blood,

P placed the gauze on D’s arm, placing the side of the gauze that had been facing up when it was sitting on the sharps container on D’s arm. P labeled the vials and then removed an adhesive bandage from the top of the sharps container. The bandage’s wrapper was partially opened, and the exposed part of the bandage had been sticking to the container. P applied the bandage to D’ss arm then threw the bandage wrapper and gloves into the trash can.

D filed a motion to suppress. D claimed that, unlike in Schmerber, his blood draw exposed him to an unjustifiable risk of infection because P used a sharps container as a workstation. Trial judge held, “I have no problem with the sealed sterile gauze used to wipe his arm or the needle or anything like that, but that bare four-by-four gauze on top of the sharps container and that open Band Aid adhered to it, you know, that are applied directly to the puncture site, to me that’s just way beyond the pale so I do grant the Motion to Suppress.”

The court of appeals held, “As the State admits, using a biohazard container as a workstation for a blood draw is not ideal. However, even viewing the evidence in the light most favorable to the trial court’s ruling, we conclude that [D] failed to meet his burden of showing that [P’s] actions were so egregious that they created an ‘unjustified element of personal risk of infection and pain’ that rose to the level of violating the Fourth Amendment.” “Because the record before us does not demonstrate that Fikes’s blood draw violated the Fourth Amendment by subjecting him to an unjustified risk of infection, we conclude that the trial court abused its discretion in granting his motion to suppress the results of the blood analysis.”

In Wheeler v. State, 616 S.W.3d 858

7. Wheeler and no good faith exception if fail swear to warrant affidavit

(Tex. Crim. App. 2021), an officer submitted an unsworn affidavit in support of a search warrant for blood. “One of the most fundamental tenets of search and seizure law is that a search warrant must be supported by a probable-cause affidavit that is sworn ‘by oath or affirmation.’” Tex. Const. art. I, § 9. The magistrate found probable cause in the unsworn affidavit, did not realize the affidavit was unsworn, and issued the search warrant. The same officer then executed the search warrant The State claimed that the officer acted in good faith pursuant to Article 38.23 of the Texas Code of Criminal Procedure in executing the search warrant. Article 38.23(b) states, “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” The Court held that the test is objective as opposed to subjective good faith and, as such, the good faith exception was inapplicable because an officer cannot be said to have acted in “objective good faith reliance” on a search warrant when he submitted an unsworn affidavit, so the Article 38.23 good-faith exception was inapplicable.

F. Grand jury

1. Consuelo and grand jury and HIPPA

In Consuelo v. State, 613 S.W.3d 330 (Tex App. - Dallas 2020, no pet.), the defendant was involved in an accident with another vehicle resulting in injuries to three people in the other vehicle and the defendant rendered unconscious. The defendant was taken to a hospital, emergency personnel drew his blood while performing emergency care to him, and hosptial personnel informed law enforcement that the toxicologyrevealed PCP, amphetamines, cocaine, opiates, marijuana, and benzodiazepines in his system. An officer

included this information in his affidavit in support of a blood draw search warrant in addition to the defendant being unable to perform SFST’s because unconscious, a witness saw him operating a motor vehicle in a public place, his eyes were bloodshot and dilated, his appearance with disorderly and bloody, and he refused to provide a breath or blood sample. Blood was drawn pursuant to the search warrant and, the defendant was charged with intoxication assault. The State also issued a grand jury subpoena for the defendant’s medical records. A motion to suppress was filed claiming that the test results were inadmissible because hospital personnel violated HIPPA bytelling the police about the toxicology results and if that information was removed from the search warrant affidavit, probable cause was lacking to issue a search warrant for his blood. The court recognized that 45 C F R § 164.512(f)(6)(i) allows a health care provider providing emergencyhealth care may disclose protected health information to a law enforcement official if such disclosure appears necessaryto alert law enforcement to: (A) The commission and nature of a crime; (B) The location of such crime or of the victim(s) of such crime; and (C) The identity, description, and location of the perpetrator of such crime. The court held that the defendant’s toxicology results were obtained while hospital personnel were providing him health care in response to a medical emergency. The court held that, under the facts of this case, HIPAA specifically allowed the release of the toxicology results to the police and, therefore, the grand jury subpoena for the medical records could not be fruit of the poisonous tree.

G. Trial

1. Sanchez and proof needed for TCCP 38.23(a) jury instruction

Sanchez v. State, No. 04-18-00302-CR (Tex App. - San Antonio, April 17, 2019) PO saw D commit two distinct traffic violations: (1) failure drive on right side of the road in violation of section 545.051(a)(2); and (2) failure signal lane change in violation of section 545.104(a) of Tex. Transp. Code. See Tex. Transp. Code Ann. § 545.051(a)(2). TCCP Article 38.23(a) states that illegally obtained evidence is inadmissible. A 38.23(a) jury instruction is limited to disputed issues of fact material to D’s claim of constitutional or statutory violation that renders evid inadmissible.

Three requirements must be met before D entitled to 38.23(a) jury instruction: (1) evidence heard by jury must raise an issue of fact; (2) evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to lawfulness of the challenged conduct in obtaining the evidence.

“To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.”

“Simply raising the issue via crossexamination is insufficient to create a factual dispute for purposes of an article 38.23(a) instruction.” “If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law.” “And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.”

The D failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the D turned left without signaling. Without such evidence, D was not entitled to a jury instruction under 38.23(a).

2. Olsen and proof needed for TCCP

38.23(a) jury instruction

Olsen v. State, 606 S.W.3d 342 (Tex App. - Houston [1st Dist.] 2020, no pet.) - D convicted of fel DWI with child passenger. During trial, D did not contest D exhibited clues on the SFST’s consistent with intoxication. D’s results on the HGN, WAT, and OLS were consistent with intoxication. PO’s subjective perception of D’s physical and mental faculties was not a fact supporting probable cause. D’s performance on the SFST’s, however, is a material fact supporting probable cause for D’s arrest but D did not contest this at trial or on appeal. Because D “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” Because D “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [D] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [D’s] request to submit an Article 38.23 instruction to the jury.”

3. Kinnett and proof needed for TCCP 38.23(a) jury instruction

In Kinnett v. State, 623 S.W.3d 876 (Tex. App. - Houston [1st Dist.] 2020, pet. ref’d), the court of appeals first addressed whether or not the prosecution proved one of the enhancement paragraphs for the defendant’s felonyDWI The court recognized that DWI is a third-degree felony if there is proof the defendant has previously been twice convicted of any offense relating to operating a motor vehicle while intoxicated. Proof of two prior convictions is an element of the felony offense of DWI and vests the district court with jurisdiction. Regarding the enhancements, the State must prove beyond a reasonable doubt that: (1) a prior conviction

exists; and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex Crim. App. 2007). No specific document or mode of proof is required to prove the existence of the prior conviction or linking the defendant to that prior conviction. Methods used for this proof include: (1) certified copy of the final judgment and sentence that shows the prior conviction and the defendant as the person convicted; (2) the defendant’s admission; or (3) testimony by a person who was present at the conviction and can identify the defendant as the person convicted. The State proved the enhancement in issue because it produced the defendant’s fingerprint card; a certified copy of the judgment that did not contain the defendant’s fingerprint but gave the date of offense and date of judgment, full name, and court of conviction; and the defendant’s pen packet which contained the date of offense and defendant’s name and matched the judgment and provided the defendant’s fingerprints.

The court of appeals next addressed whether the State proved the defendant was operating the motor vehicle given that a caller to the police identified the driver as “him” but provided no description of the driver or whether there were any passengers, police did not see the defendant driving, and the officer’s dash cam video indicated the vehicle was not running at the time of the stop. The evidence was sufficient because the police dispatched an officer to the bar’s parking lot and the officer arrived 13 minutes after the call to the police and saw the vehicle identified by the caller, the defendant was inside the running vehicle, and the defendant admitted to drinking and driving the vehicle to the parking lot.

The court of appeals addressed whether the State proved the blood test was valid for the time period when the defendant was driving the vehicle because the blood

draw was three hours after the arrest, there was no testimony as to time of driving, and there was no retrograde extrapolation of the blood results. The court of appeals recognized that BAC-test results, even absent retrograde extrapolation, are often highly probative to prove both per se and impairment intoxication. A blood-alcohol test result, however, without more, is insufficient to prove intoxication at time of driving “There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.” “Other evidence” of intoxication at time of driving as well as at the time of blood draw “includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, any admissions by the defendant concerning when and how much he had been drinking, in short, any and all of the usual indicia of intoxication.” The State offered evidence that the defendant was 0.134, the call to police describing defendant’s vehicle and reckless driving, defendant asleep in his vehicle in the parking lot at the bar, the odor of alcohol on his person, slurred speech, disorderly clothes, admission to drinking that day and driving to the parking lot, multiple clues on the SFST’s, unsteady on his feet and assertive behaviors, and both officers believed he was intoxicated. This was sufficient evidence of intoxication at time of driving

The court of appeals addressed whether the right of confrontation was violated by the admission into evidence of the caller’s call without the caller testifying at trial. The court recognized that at the time of the call the defendant was no longer driving, was parked, and was still sitting inside his vehicle, so the defendant was still in public and in his vehicle. The call related to the driving behavior including a near head-on

collision, so it was made “mainly to enable a police response to an ongoing emergency.” The caller initiated contact with the dispatcher when he called the police department, and statements made to police during contact initiated by a witness at the beginning of an investigation are generally not considered testimonial. The call was informal, and most of the statements were spontaneous with little prompting from the dispatcher. Although the caller was calm and composed and not frantic, the call’s primary purpose was to alert police to a potentially intoxicated/dangerous driver who was still in his vehicle and in public. These facts indicate the call was non-testimonial, so the admission into evidence of the call was not a violation of the right of confrontation.

The court of appeals addressed whether police had reasonable suspicion to detain him for a DWI investigation given that the call lacked sufficient indicia of reliability to provide reasonable suspicion because the caller was not a known informant whose reputation and credibility could be assessed. The court recognized that an informant may be considered more reliable if he provides a firsthand account of events and a detailed description of wrongdoing soon after its occurrence. “Courts also consider an informant who is not connected with the police inherently trustworthy when advising the police of suspected criminal activity.” “An anonymous tip alone is rarely sufficient to justify a traffic stop, but an anonymous tip supported by other ‘sufficient indicia of reliability’ may be enough to justify a stop.” If the informant “provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.” Under the totality of the circumstances, the court held that the call was supported by sufficient indicia of reliability and the officer’s observations prior to initiating conversation with the defendant

provided the officer with reasonable suspicion that the defendant had been driving while intoxicated.

The court of appeals addressed whether the defendant was entitled to an Article 38.23 instruction regarding whether or not the vehicle was running at the time of the stop. The court held that there was no affirmative evidence of a factual dispute concerningwhether the vehicle was running at the time the officer approached it. The dash cam video did not indicate if the vehicle was running, the officer’s testimony on cross-examination agreeing with defense counsel that he did not state on the video recording that the car was running was not affirmative evidence that the vehicle was not running, and the officer’s failure to testify at the suppression hearing that the vehicle was running was not affirmative evidence that the vehicle was not running. Under these facts, the issue of whether the vehicle was running when the officer approached it was not contested by affirmative evidence at trial. Therefore, a 38.23 instruction was not required.

4. Smith and failure to get ruling on Fourth Amendment issue

Smith v. State, 499 S.W.3d 1 (Tex. Crim. App. 2016) - Bench trial. DWI conviction based, in part, on warrantless mandatory blood draw conducted pursuant to Chapter 724 of the Health and Safety Code. D waived this error because D never obtained a ruling on issue. The State offered the blood results into evidence and the TCCA stated, “The trial judge observed that the officer followed the statute, so ‘[t]he only question is whether 724.012 is constitutional, whether it passes the muster of the Federal Constitution.’” “Defense counsel responded that his ‘brief research did not indicate that it had ever been brought up.’” “The trial judge then stated, ‘Okay. Well, I’ll carry that. I’ll

carry that because I think that’s an interesting issue.” Later in the bench trial, the trial judge stated the defense could brief this issue. After closing arguments, the trial court stated, “Well, you’re going to have to brief me on the issue if you want me to consider it. I need to know what the Courts have said and how far it’s gone up.”

The TCCA stated, “Nothing in the record suggests that the constitutional issue was ever mentioned at the trial level again.” After finding D guilty, the trial judge reiterated that the Fourth Amendment issue had not been resolved. D never asked for a ruling on the issue, nor did he object to the trial judge’s failure to rule. Because he failed to obtain a ruling on the 4th Amendment complaint, D failed to preserve error with respect to that complaint. Even if D had obtained a ruling on his objection to the blood vial itself, the test results were already in evidence.

5. Huse and the state obtaining medical records for blood & HIPPA

State v. Huse, 491 S.W.3d 833 (Tex Crim. App. 2016) DWI case in which State obtained evidence of D’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The first issue the TCCA addressed was D’s standing to complain about the State’s obtaining D’s medical records. “This Court has held that, when it comes to legal representation, ‘[t]he client’s file belongs to the client[,]’ not his attorney.” In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). “Appellee has made no analogous argument that, similarly, a patient’s medical records ‘belong to’ the patient, such that he has Fourth Amendment standing on that basis to complain of the State’s warrantless acquisition of them. In the absence of briefing on that issue, we will not address it sua sponte on discretionary review.” The TCCA next

addressed the issue of whether a D may move to suppress blood extraction and blood testing by a private party

The TCCA stated that “when the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” If the State neither takes nor tests the blood, “‘the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on [its] own initiative,’ such as the one that the hospital conducted in the context of treating Appellee.” The D had no standing to “complain of either the blood extraction or the blood alcohol analysis themselves.” The TCCA stated that the States “obtaining medical records of privately conducted blood extraction and analysis is much less invasive than either the extraction or the chemical analysis themselves.[] In light of these considerations, we concluded that, ‘whatever interests society may have in safeguarding the privacy of medical records [in general], they are not sufficiently strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.’”

The TCCA next addressed the issue of HIPAA. The TCCA stated that a grand jury subpoena is an exception to HIPAA. Section 164.512(f)(1)(ii)(B) of Title 45 of the Code of Federal Regulations. “Under this provision, a DWI offender would have no legitimate expectation of privacy sufficient to block a health careprovider from disclosing otherwise protected health care information when required to do so under the terms of a grand jury subpoena.” The TCCA stated that Art. 38.23(a) of the TCCP applies in such a case if “the grand jury subpoenas duces tecum somehow failed to comply with the provisions in the Texas Code of Criminal Procedure that authorize their issuance. In short, whether HIPAA was violated wholly devolves into a

question of whether one or both of the two grand jury subpoenas duces tecum that issued in this case failed to comport with state law.”

With respect to comporting with state law, the TCCA stated grand juries in Texas have the constitutional authority to investigate misdemeanor offenses such as D’s. See Tex. Const. art. V, § 17 (“Grand juries empaneled in the District Courts shall inquire into misdemeanors .”). Also, “[a] subpoena may summon one or more persons to appear on a specified day before a grand jury[.]” Tex Code Crim. Proc. art. 24.01(a)(2)(C). “Either the foreman of the grand jury or ‘the attorney representing the State’ has the authority to ‘issue a summons’ (by which is apparently meant a subpoena) on the grand jury’s behalf.” Tex. Code Crim. Proc. arts. 20.10 & 20.11; George E. Dix & John M. Schmolesky, 41 Texas Practice: Criminal Practice and Procedure § 23:27 (3d ed. 2011). “The subpoena may require the witness to appear and produce records and documents.” Tex. Code Crim. Proc. art. 20.11; see also Tex. Code Crim. Proc. art. 24.02 (“If a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.”); Dix & Schmolesky, § 23:30, at 783 (“A grand jury subpoena can, under the general authority of Article 24.02 of the Code of Criminal Procedure, direct the witness to bring specified instruments, writings, or ‘other thing[s]’ in his possession to the grand jury Such a subpoena is a subpoena duces tecum.”). And finally, “[t]he grand jury may compel the production of evidence . . . as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.”

“Beyond the bare bone provisions cited above, the Code of Criminal Procedure provides little guidance with respect to the proper (or improper) use of the grand jury subpoena

power.”

The TCCA stated “there are at least two purposes to which a prosecutor may not legitimately direct a grand jury subpoena First, he may not use the grand jury subpoena as a subterfuge to obtain an investigative interview in his office – a so-called ‘office subpoena.’” “Second, it has been widely recognized by commentators and courts that have addressed the issue squarely ‘that it is improper to use the grand jury for the purpose of preparing an alreadypending indictment for trial . . .’” “However, commentators have also suggested that a grand jury may continue to investigate other potential charges . . .” Tex. Code Crim. Proc. Ann. art. 38.23(a) did not mandate that the medical records of D’s blood alcohol concentration be suppressed because the State obtained the medical records in the absence of any specific statutory violation and in the absence of any manifest abuse of the grand jury’s ordinary investigative function, when the first grand jury subpoena duces tecum was proper and was squarely in keeping with the provisions of the Tex. Code Crim. Proc. Ann. art. 20.10 and 20.11. Judgment affirmed.

6. Trigo and right of confrontation regarding intoxilyzer results

Trigo v. State, 485 S.W.3d 603 (Tex. App. Houston [1st Dist.] 2016, pet. ref’d)

At trial, the arresting officer (AO) who administered the SFST’s and the BTO who administered the breath test both testified. A DPS technical supervisor (TS) testified at trial. D objected that the TS was not a TS at the time of the D’s breath test and was not overseeing the intoxilyzer machine used to test the D. The D made a confrontation clause objection to this TS testifying. The TS testified that she reviewed the business records of the machine used to test the D and, based upon these records, the machine was operating as it should when the D was tested.

It was the TS’s opinion that the machine was in working order when the D was tested.

The Court held no violation of the confrontation clause since the AO and BTO testified and were subject to cross examination. The Court stated that if the State had not called the BTO “but instead attempted to introduce her report through another witness, there may have been a confrontation problem under the cases upon which appellant relies.” Burch v. State, 401 S.W.3d 634 (Tex Crim. App. 2013) (“Without having the testimony of the analyst who actually performed the tests, or at least one who observed their execution, the defendant has no way to explore the types of corruption and missteps the Confrontation Clause was designed to protect against.”). “But the type of testimony [the TS] provided was expressly contemplated as acceptable, non-testimonial evidence not subject to the Confrontation Clause in Melendez-Diaz.” Courts have held that “a defendant does not have a right to confront the specific technical supervisor responsible for the breathalyzer at the time of the breath test.” The trial court did not abuse its discretion by allowing the TS to testify from someone else’s records that the intoxilyzer machine used to perform the breath test on D was operating properly because the testimony was non-testimonial evidence not subject to the confrontation clause.

7. Williams and right of confrontation regarding blood analyst

Williams v. State, 585 S.W.3d 478 (Tex. Crim. App. 2019) D charged with intox manslaughter for killing a pedestrian. Pursuant to TCCP Article 38.41, the State offered an analysis of D’s blood without calling the analyst who tested the blood as a sponsoring witness. The State’s notice was 15 pages of records comprising the results of NMS’s analysis. D did not lodge a pre-trial

objection to the use of the certificate.

When the State, during trial, offered the NMS report into evidence without calling anyone from NMS as a sponsoring witness, D objected that admitting the report without the testimony of an NMS analyst would violate his Sixth-Amendment right to confrontation. D acknowledged that the State’s timely filed certificate of analysis might, in theory, have operated to defeat his confrontation objection, he argued that the certificate in this case did not “substantially compl[y]" with Article 38.41 b/c the certificate of analysis must contain a sworn statement from the analyst who actually conducted the tests. The State’s certificate did not establish that the named analyst conducted or observed any of the tests done on D’s blood.

The TCCA held that because the certificate substantially complied with Article 38.41 (at least in the particular, narrow regard D complained about on appeal), and was filed more than twenty days before trial, D “was required to object to the use of the certificate in a timely manner or risk losing his ability to assert his right of confrontation at trial. We leave for another day an examination of the procedural default consequences of a defendant's failure to timely object to a certificate of analysis that does not substantially comply with Article 38.41.”

8. Gore and no right confrontation for blood analyst if only raw data used

Gore v. State, 605 S.W.3d 204 (Tex App. - Beaumont 2020, no pet.) - The opinions the State elicited from the analyst’s supervisor depended on supervisor’s “expertise based on her review of the raw data generated by the machine used to test Gore’s blood. The record simply does not show the State attempted to use [supervisor] to testify as a surrogate for [analyst] and through [supervisor], introduce the statements in [analyst’s] report into the evidence admitted

before the jury during Gore’s trial.”

Bullcoming and Burch “are distinguishable from the facts in the record of Gores trial. In those cases, the trial court in each case admitted a lab report written by an individual who did not testify in the defendant’s trial. By admitting the lab reports and testimony from the State’s expert about the opinions the individuals reached in their report when those same individuals did not testify in the trials, both reviewing courts found the trial courts erred by allowing the testimonial statements of individuals who did not testify to be introduced through the expert the State called since doing so violated the Confrontation Clause. In Gore's case, [supervisor] relied on raw data generated by the equipment [analyst] used when she tested Gore's blood. The State never offered [analyst’s] report or Brown's opinions into evidence during Gore's trial Instead, [supervisor] testified she was basing the opinions she intended to express on her independent review of the raw data generated by equipment used in the lab. The trial court was entitled to accept the testimony [supervisor] provided in the hearing the trial court conducted on Gore's objections, and the court had the discretion to admit [supervisor’s] testimony about the opinions [supervisor] expressed in the trial. We conclude the raw data [supervisor] relied on was not testimonial, so admitting [supervisor’s] opinion based on [supervisor’s] review of the raw data from the gas chromatograph [analyst] sed to test Gore's blood did not violate Gore's rights under the Confrontation Clause.”

9. Diamond and no Brady viol failure reveal analyst’s error in other case

Diamond v. State, No. PD-1299-18 (Tex Crim. App., June 10, 2020) Lab analyst properly analyzed D’s blood for alcohol content. After D’s trial, it was

revealed that analyst had – before the trial “mistakenly certified a blood alcohol analysis report in an unrelated case where a police officer had mislabeled the submission form accompanying a blood sample. Due to her self-report of the erroneous certification to her supervisor, [analyst] had been temporarily removed from casework at the time of Appellant’s trial so she could research and document this incident. The prosecutors in this case, unaware of the problem in the unrelated case, failed to disclose this information to Appellant prior to [analyst’s] testimony in Appellant’s trial. The question before us is whether this evidence is material. The post-conviction habeas court concluded it was not and denied Article 11.072 relief. Based upon the record before us, we agree.”

There was overwhelming evidence of D’s intoxication to support the jury’s finding of guilt regardless of the analyst’s testimony; the undisclosed evidence impeaching the analyst would not have impeached the testimonydescribing D’s intoxicated state; the habeas court’s unchallenged findings of fact regarding the analyst’s analysis and testimony also supported the conclusion that the undisclosed evidence was not material to the jury’s special-issue finding that D’s BAC was 0.15 or more; the analyst followed all of the lab’s standard operating procedures when analyzing D’s blood, and analyst’s analysis of D’s blood sample revealed a blood alcohol level of 0.193.

10. Rodgers and flawed felony DWI indictment

Ex parte Rodgers, No. WR-89,477-01 (Tex. Crim. App., April 8, 2020) - On habeas, D claimed illegal sentence because should have been sentenced for misdemeanor DWI, not felony DWI given problem with indictment. Indictment alleged two prior DWI’s to make it a felony DWI, plus the indictment alleged two additional prior DWI’s

to make the D habitual 25-life. D pleaded guilty to F2, since state waived one of the habitual prior DWI’s, and was sentenced to 15 years. The TCCA recognized that the indictment was flawed as follows: “The State pled two prior DWI offenses as jurisdictional enhancements, raising the level of the offense charged to a third-degree felony. Both of those prior jurisdictional enhancements were alleged to have occurred on November 10, 1999. But the State made a mistake in its allegation of the second jurisdictional prior DWI It essentially alleged the same prior DWI conviction cause number twice, as the jurisdictional-enhancement convictions, with just a slight variation in the letters included at the end of each cause number F-9652378-IW and F-9652378-HW. The first jurisdictional prior DWI, alleged as F-9652378-IW, reflected a genuine prior conviction entered against Appellant on November 10, 1999. But there simply was no prior conviction under a cause number F-9652378-HW.” The error here, however, was harmless.

11. Oliva and prior DWI is not an element of DWI 2d

Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018) - Proof of the existence of a single prior conviction in a prosecution for misdemeanor DWI is a punishment issue, not an element of the offense.

12. Meza and must prove 0.15 at time of analysis

Meza v. State, 497 S.W.3d 574 (Tex. App. - Houston [1st Dist.] 2016, no pet.)

MA DWI-0.15 accident. For MB DWI, State must prove D operated a motor vehicle while intoxicated. For MA DWI 0.15, State must prove intoxication through alcohol concentration only at the time of the analysis rather than the time of driving, and there is no

option for proving the necessary intoxication through loss of mental or physical faculties. The jury charge in this case, however, added additional requirement that D have a BAC of 0.15 at or near the time of the accident instead of only “at the time the analysis was performed.” For a MA DWI-0.15 conviction, the statute only requires the State prove an analysis of a specimen of blood/breath/urine showed alcohol concentration of 0.15 or more at the time the analysis was performed. The statute never requires retrograde extrapolation for a MA DWI conviction. It was the jury charge that the State requested in this case that imposed the additional requirement in this particular case. Court refused to reform judgment to reflect MB DWI conviction b/c only fact that the jury found in convicting D of MA DWI was that D’s BAC was at least 0.15 at the time of testing and at or near the time of the accident. Remanded for new trial on MB DWI.

13. Ramjattansingh and 0.15 jury charge

Ramjattansingh v. State, 548 S.W.3d 540 (Tex Crim. App. 2018) - “The State’s DWI information in this case alleged that Appellant, Jason Ramjattansingh, had committed the offense of driving while intoxicated. It also alleged that he had an alcohol concentration level of 0.15 or more ‘at the time the analysis was performed,’ as the Class A DWI statute requires. But the information went further, alleging that Ramjattansingh also had this alcohol concentration level ‘at or near the time of the commission of the offense,’ which the statute does not require. The jury charge tracked the information, requiring the jury to find this extra element.”

“A person commits Class B misdemeanor DWI if the person is intoxicated while operating a motor vehicle in a public place. ‘Intoxicated’ means either ‘not having

the normal use of mental or physical faculties’ by reason of ‘the introduction of alcohol’ (or ‘any other substance’) into the body, or ‘having an alcohol concentration of 0.08 or more.’ In order to prove the offense of driving while intoxicated, the State must prove that the defendant operated a motor vehicle while intoxicated. If the State intends to rely upon the per se definition of intoxication, it must prove that the defendant had an alcohol concentration of at least .08 at the time of driving If the State does not intend to rely upon that definition of intoxication, it need only prove intoxication at the time of driving by showing that the defendant had experienced a loss of the normal use of his or her mental or physical faculties.”

“But, if the State also proves that a defendant had ‘an alcohol concentration level of 0.15 or more at the time the analysis was performed,’ the offense is a Class A misdemeanor. Unlike the Class B offense of driving while intoxicated, this additional statutory requirement only requires that the State prove that the defendant had an alcohol concentration level of at least 0.15 at the time the analysis was performed The hypotheticallycorrect jurycharge for the Class A misdemeanor alleged in this case requires proof of • Class B driving while intoxicated (that is, operating a motor vehicle in a public place while ‘not having the normal use of mental or physical faculties’ by reason of the introduction of alcohol into the body, or ‘having an alcohol concentration of 0.08 or more’); and • ‘an alcohol concentration level of 0.15 or more at the time the analysis was performed’ but not • ‘an alcohol concentration level of 0.15 or more at or near the time of the commission of the offense.’”

“Appellant did not anchor his case to challenging the alcohol concentration at the time of the test as compared to the concentration at or near the time of driving Appellant’s defensive theory was that the State could not prove he had committed even

a Class B DWI. According to Appellant, the State could not wheel him because there was no evidence establishing when Appellant was driving Period. Because the variance between the non-statutory allegation and the proof presented at trial is immaterial, the hypothetically correct jury charge need not include it.”

“We measure the sufficiency of the evidence against the elements of the offense as they are defined in the hypothetically correct jury charge. If a jury instruction includes the elements of the charged crime but incorrectly adds an extra, made-up element, a sufficiency challenge is still assessed against the elements of the charged crime, regardless of the source of the extra element. We reverse the court of appeals’ judgment and remand the case to that court for proceedings consistent with this holding ”

14. Ashby and TFMPP admissibility

Ashby v. State, 527 S.W.3d 356 (Tex. App. - Houston [1st Dist.] 2017, pet. ref’d) DWI case and blood test performed which showed TFMPP in blood. D moved to suppress TFMPP finding and requested a Kelly hearing to determine the reliability and relevance of such evidence. “To be deemed reliable under Kelly, evidence derived from a scientific theorymust meet the following three criteria: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Doctor testified about (a) and (b) in that he explained the underlying scientific theory relied upon to determine whether TFMPP was present or absent in D’s blood sample. He offered a detailed abstract explanation of the scientific process used for analyzing the presence or absence of TFMPP in a blood sample. He testified that this technique for blood testing is generally accepted in the scientific community. He

further informed the court that the process has been subject to peer review and recently published in the Journal of Applied Toxicology Asked whether he had followed that same protocol in this instance, he asserted that he followed protocol. This testimony was sufficient to establish the reliability of his blood analysis and his conclusion that TFMPP was present in D’s blood under Kelly.

D’s challenged whether evidence showing the presence of TFMPP in his bloodstream would assist the trier of fact in understanding the evidence and in making a factual determination regarding whether he was intoxicated where we know little of the pharmacokinetics of TFMPP and where the specific amount of TFMPP in his bloodstream is unknown. D cited Layton v. State, 280 S W 3d 235 (Tex Crim. App. 2009) for the proposition that “without evidence [of] the level of dosage, exact times of ingestion, or the half-life of the drug in the human body, the usage of a particular drug was not relevant to a person’s intoxication.” Id. D, however, was charged with driving while intoxicated, but unlike in Layton, the charge was not limited to intoxication by consumption of alcohol. In this case, evidence that TFMPP was present in Ashby's blood sample is relevant because it tends to make it more probable that he was intoxicated by reason of introduction of a controlled substance or some combination of substances. D also cited DeLarue v. State, 102 S.W.3d 388 (Tex. App. Houston [14th Dist.] 2003, pet. ref’d), for the proposition that a failure to extrapolate a controlled substance to the time of an event at issue can render evidence showing mere presence of a substance inadmissible.” Id. at 401. In DeLarue, the court concluded that the admission of evidence of marijuana in defendant’s bloodstream to show intoxication without a Daubert-Kelly hearing was error, because without proof of scientific reliability, the evidence was more prejudicial than probative. Id.

The trial court here did what the trial court in DeLarue failed to do: the trial court held a Daubert-Kelly hearing to determine the reliability of the State’s TFMPP evidence Though no attempt was made to quantify the presence of TFMPP in D’s blood sample and no attempt was made to show when the TFMPP was introduced into his system, the State did attempt to show D was under the influence of TFMPP at the time of the traffic stop Secondly, DeLarue does not categorically require the quantification of a controlled substance in a defendant's bloodstream in order to prove intoxication. The DeLarue court did note that evidence can be rendered inadmissible by a “failure to extrapolate the presence of a controlled substance back to the time of an accident because such failure can render the evidence insufficient under a Rule 403 analysis.” However, the case supporting that proposition Manning, 84 S.W.3d at 22 – was subsequently reversed by the Court of Criminal Appeals, which cautioned against confusing sufficiency with admissibility. See Manning, 114 S.W.3d at 927.

Here, though evidence that an unquantified amount of TFMPP was in D’s bloodstream at the relevant time may not have been sufficient, by itself, to prove that the observed loss of the normal use of his mental and physical faculties resulted from ingesting TFMPP, it is nevertheless some evidence that D consumed TFMPP. The failure to quantify TFMPP in D’s bloodstream lessens the inherent probative force of the evidence, but it does not render it unreliable or irrelevant under Rule 702.

Finally, D relied on State v. Guzman, 439 S.W.3d 482 (Tex. App. - San Antonio 2014, no pet.), to argue that Rule 702 requires the analyst who tests the blood sample to be capable of offering testimony concerning the effects of the drug In Guzman, the San Antonio Court of Appeals wrote: “our case law is clear that with respect to blood tests, the

expert who must satisfy the criteria in any particular case is the analyst who tests the blood sample, not the nurse who performs the blood draw.” Id Unlike in Guzman, here, no testimony concerning the relevance and reliability of scientific testing of the blood sample was solicited from the phlebotomist, who performed the blood draw. Thus, Guzman is of limited value. Rather than relying on testimony from the phlebotomist, in this case, the State relied on the testimony of two scientists who testified about the process of analyzing D’s blood and explained the significance of that analysis and its result. Neither Guzman nor the cases relied upon by Guzman foreclose the use of two scientific experts involved in the analysis of a blood sample from testifying concerning their respective parts of the analysis. The Court concluded that the trial court did not err in allowing the State to introduce evidence of TFMPP in D’s blood.

15. Matamoros and intoxication manslaughter and causation

Matamoros v. State, 500 S W 3d 58 (Tex App. - Corpus Christi 2016, no pet.) Officers at accident scene saw that the driver of the van was not present. The ignition key had been removed and the owner of the van identified D as the last known driver. D was detained approximately fifteen minutes following the arrival of officers at the scene of the accident and had the keys to the van. D claimed that the key could be removed from the van while the vehicle was running The owner and witnesses testified that the van could only be driven with the key in the ignition. D admitted to his girlfriend the driving that night and that “something unexpected happened to him,” and resulted in a collision.

Officers saw D 15 minutes after accident with red, bloodshot eyes, slurred speech, and odor alcohol. At station, HGN

showed six clues. Taken in the light most favorable to the verdict, a rational fact finder could have found beyond a reasonable doubt that appellant was intoxicated both during and after the time the accident took place. D admitted to his former girlfriend that while driving the van on the night in question, he made too wide of a turn and had a collision, running into the bus stop. The lead investigator testified that someone in full command of his mental and physical faculties while driving within the speed limit would have been able to navigate the turn. The introduction of alcohol into the driver's system was a primary factor in causing the accident. D claimed that slippery roads and not his intoxication caused the accident.

The State is not required to prove that intoxication is the sole cause of the accident. When concurrent causes are present, the “but for” requirement under the Texas Penal Code is satisfied when either (1) the accused’s conduct is sufficient by itself to have caused the harm; or (2) the accused’s conduct coupled with another cause is sufficient to have caused the harm. Whether such a causal connection exists is normally a question for the jury’s determination. The State was required to prove that D’s intoxication, and not just his operation of a vehicle, caused the fatal result.

A jury may draw reasonable inferences regarding the ultimate facts from basic facts. The evidence was sufficient to sustain D’s conviction for intoxication manslaughter because the State established that D was the operator of the van at the time of the accident, that he was intoxicated both during and after the time the accident took place, and that death occurred by reason of intoxication.

16. Burg and must object to improper DL suspension to raise on appeal

Burg v State, 592 S.W.3d 444 (Tex Crim. App. 2020) - Tex R App. P. 33.1 required a contemporaneous objection to

preserve error for appeal, and because D had opportunityand failed to object to trial judge’s order suspending his license, issue was not preserved for appeal.

17. Rodriguez-Cruz and reversible error to deny motion continuance

Rodriguez-Cruz v. State, 590 S.W.3d 29 (Tex App. - San Antonio 2019, no pet.)During trial, State moved to continue the trial because PO who did SFST’s was sick in emergency room and unable to testify. D objected b/c the defense’s expert witness was on a plane and was arriving in town that day to testify. The trial judge granted the State’s motion and ordered the trial continued until the next day. The next day, the AO and TS testified and the state rested that afternoon. The D then filed for a continuance explaining that the defense’s expert witness would not be able to testify that day b/c of the State’s continuance and asked the trial court to continue trial until Monday. The trial judge denied D’s motion.

The court of appeals held that the trial judge abused its discretion in denying D’s written motion for continuance, because the court’s option to allow D’s expert to testify out of order was unreasonable as the purpose of the expert’s testimony was to rebut testimony given by the State’s expert witnesses, D’s motion was “not made for delay” but was instead made to allow D’s expert to testify at trial, the expert’s testimony was “material,” as it would have related to the reliability of both the results of the intoxilyzer machine and the extrapolation evidence given by the State’s expert, and D was prejudiced as a result of the trial court’s denial of the motion as the expert’s testimony would have been favorable and was essential to the defense. Judgment reversed, and cause remanded for new trial.

18. Bara and double jeopardy with two

children in car

State v Bara, 500 S.W 3d 582 (Tex App. - Eastland 2016, no pet.) - Felony DWI with a child passenger. Two children in car at time, so two indictments against D – one for each child. D convicted on first indictment and State sought to try D for second indictment. D claimed jeopardy barred.

Court held that double jeopardybarred prosecution of D for DWI with a child passenger because he had already been found guilty of DWI with a child passenger and sentenced for the same incident in another charge. Although there were two children, there was only one incident of driving. The gravamen of the offense was the act of driving, not the presence of the children. Both the United States Constitution and the Texas Constitution protect individuals from multiple punishments for the same offense. The double jeopardy clause prevents (1) a second prosecution for the “same offense” after acquittal, (2) a second prosecution for the “same offense” after conviction, and (3) multiple punishments for the “same offense.” The State charged D with two violations of the same statute. If each alleged violation of the statute was a separate “allowable unit of prosecution,” there is no double jeopardy clause violation. Whether an offense is a separate “allowable unit of prosecution” depends on legislative intent. For the offense in this case, legislative intent was as the allowable unit of prosecution, one offense for each incident of driving or operating a vehicle. No prosecution allowed for second indictment.

19. Nelson and unanimity

Nelson v. State, 504 S.W.3d 410 (Tex. App. - Eastland 2016, pet ref’d) - Felony DWI child in car. D claimed that trial court should have required jury unanimity as to whether D was intoxicated by reason of not

having the normal use of his mental or physical faculties or by reason of having an alcohol concentration of 0.08 or more. Texas law requires a unanimous jury verdict in felony criminal cases. Unanimity means that each and every juror agrees that the D committed the same, single, specific criminal act. The conduct prohibited under the statute is the act of driving while in a state of intoxication. “The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission.” Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007). Further, “different modes of commission may be presented in a jury instruction in the disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive.” Id. The definitions for intoxication under Section 49.01 “set forth alternate means by which the State may prove intoxication, rather than alternate means of committing the offense.”

Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). Because Section 49.01 sets forth alternate means of proving intoxication, the trial court did not err in its submission of the charge in the disjunctive and the jury was not required to agree as to loss of normal use or 0.08.

20. Couthren and deadly weapon finding disapproved

Couthren v. State, 571 S.W.3d 786 (Tex Crim. App. 2019) - D convicted felony DWI and jury made finding of deadly weapon (DW) – vehicle. D claimed insufficient evidence DW because no evidence D operated vehicle in a reckless or dangerous manner. TCCA agreed. There was no evidence D operated vehicle in reckless/dangerous manner. PO’s did not attempt to locate evidence of brake marks, skid marks, road damage, or other circumstance demonstrating manner in which D was operating vehicle. Even though D may have been reckless in not

taking hit pedestrian directly to hospital, this did not demonstrate D operated vehicle in manner that was reckless or dangerous.

21. Moore and deadly weapon finding approved

Moore v. State, 520 S.W.3d 906 (Tex. Crim. App. 2017) - Felony DWI repeater and finding of deadly weapon. D claimed the evidence insufficient to support the deadly weapon finding in the judgment D’s SUV constituted a deadly weapon under TPC § 1.07(a)(17)(B) because D used SUV in course of committing felony DWI. D was DWI and speeding almost three-and-a-half times the legal limit, accident was at 6:30 p.m. at a red light, impact caused a collision that pushed another SUV into the intersection among other cars with right-of-way, and the other SUV could have been broadsided.

While dark, D rear-ended a car. D’s BAC 0.27. Girl in a car had bruises and scratches and suffered crying breakdowns at school as result of the accident but no loss or impairment of a bodily member or organ because of the accident. Car was totaled and photos show damage to both the rear and front of car, primarily to the trunk and hood but the photos provide no insight on why insurance company decided to declare vehicle a total loss, and no one testified about why that particular damage rendered her vehicle a total loss.

Pursuant to TPC § 1.07(a)(17)(A), an automobile is not “manifestlydesigned, made, or adapted for the purpose of inflicting death or serious bodily injury[.]” An automobile, however, may, “in the manner of its use or intended use [be] capable of causing death or serious bodily injury.” TPC § 1.07(a)(17)(B). “In any felony offense in which it is ‘shown’ that the defendant ‘used or exhibited [a] deadly weapon[,]’ the trial court ‘shall’ enter a deadly weapon finding in the judgment.” TCCP art. 42.12, § 3g(a)(2). A deadly weapon

finding affects a felony D’s eligibility for community supervision, parole, and mandatory supervision. Id ; Tex Gov't Code §§ 508 145(d)(1), 508 149(a)(1), & 508.151(a)(2). To justify a deadly weapon finding under 1.07(a)(17)(B), the prosecution “need not establish that the use or intended use of an implement actually caused death or serious bodilyinjury; only that ‘the manner’ in which it was either used or intended to be used was ‘capable’ of causing death or serious bodily injury.” Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008). There is no requirement that a D actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim. App. 2017).

Mann v. State, 58 S.W.3d 132 (Tex Crim. App. 2001) concerned whether an automobile was a deadly weapon in a felony DWI case when nobody was injured but the D’s car “nearly hit another vehicle head-on and . . . a collision was avoided only because the other driver took evasive action.” Id. at 132. A deadly weapon finding was allowed even thought there was no death or serious bodily injury Id “To sustain a deadly weapon finding requires evidence that others were endangered, and not merely a hypothetical potential for danger if others had been present.” Id. “Because near-certain death or serious bodily injury was narrowly averted only because of the other driver's evasive action, we concluded (by adopting the lower court’s opinion) that the near-collision sufficed to establish more than a merely hypothetical danger of death or serious bodily injury to another.” Id. There was little evidence of the manner of D’s driving prior to the stop. The D drove briefly on the curb and then nearlycausinga head-on collision. Mann, 13 S.W.3d at 91. In the case at bar, the facts are more compelling than in Mann A rational fact-finder could infer D “was using his motor vehicle in this case in a manner that was

capable of causing death or serious bodily injury, even though it did not do so, and regardless of whether he intended it to.” There existed more than “a hypothetical potential for danger if others had been present.” Mann, 13 S.W.3d at 92. “Here, others were present, including the driver of the white SUV, and the manner in which Appellant used his motor vehicle placed those others in substantial danger of death or serious bodily injury, even if none of them was actually seriously hurt.”

“While there is no evidence of a potential collision quite as devastating as the head-on near-miss in Mann, the danger of such a dire collision is evident on the facts of this case.”

22. Mills and deadly weapon finding approved

Mills v. State, 541 S W 3d 381 (Tex App. - Houston [14th Dist.] 2017, no pet.)

The trial court properly entered deadly weapon findings based on D’s guilty pleas and stipulations to use of a deadly weapon; and his guilty pleas to causing death and serious bodily injury with his vehicle due to intoxication. “A guilty plea is valid when it ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’” State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013). “To enter a voluntary plea, a defendant must possess ‘an understanding of the law in relation to the facts.’” McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L Ed. 2d 418 (1969). “To enter an intelligent plea, a defendant must have ‘sufficient awareness of the consequences.’” Ex Parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). “A guilty plea does not violate due process even when a defendant enters it while ‘operating under various misapprehensions about the nature or strength of the State's case against him – for example, misestimating the likely penalty .’” Id “Moreover, when a ‘defendant waives his

state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts.’” Id. at 808.

“As the Court of Criminal Appeals explained in Polk v. State, an affirmative finding can be made in several circumstances. 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). First, the fact-finder’s verdict on the indictment may constitute an affirmative finding if the indictment by allegation specifically places the deadly weapon issue before the trier of fact and the defendant is found guilty as charged in the indictment. Id. Second, an affirmative finding can occur as a matter of law if the trier of fact finds that a deadly weapon per se (such as a firearm) has been used in the commission of the offense.

Id Third, a finding may be made if the trier of fact responds affirmatively to a special issue submitted during the punishment stage of trial.

Id. More recently, the Court of Criminal Appeals has added a fourth circumstance, holding that an affirmative deadly weapon finding can be made when the jury finds the defendant guilty as charged in the indictment and the indictment alleges the defendant caused death or serious bodily injury with a weapon. Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (holding jury necessarily found defendant used a deadly weapon because a deadly weapon is something that, in the manner of its use, is capable of causing death, and jury found defendant did, in fact, cause death).”

“According to the Texas Code of Criminal Procedure, the trial court must enter a deadly weapon finding in the final judgment upon an affirmative finding that a deadly weapon was used or exhibited. As explained above, under the first scenario discussed in Polk v. State, an affirmative finding arises when the defendant is found guilty as charged in the indictment and the indictment specifically alleges the use of a deadly

weapon. 693 S.W.2d at 394. We have held that appellant’s indictments included deadly weapon allegations. For each offense, appellant pled guilty to having committed each and every element of the offense alleged in the indictment and, as part of an evidentiary waiver, stipulated that ‘the facts contained in the indictment . . . are true and correct and constitute the evidence in this case.’ Appellant’s guilty pleas, waivers, and stipulations were accepted by the trial court and appellant was found guilty as charged in the indictments. Based on the guilty pleas and stipulations, we hold the trial court properly entered deadly weapon findings in the judgments under the first Polk scenario. Id.”

23. Burnett and same transaction contextual and intox definition

Burnett v. State, 541 S.W.3d 77 (Tex Crim. App. 2017) - In D’s DWI trial, jury should have been instructed that “intoxication” only meant not having the normal use of mental or physical faculties by reason of the introduction of alcohol and should not have referred to other substances because there was insufficient evidence of intoxication by other substances even though police later found hydrocodone pills vehicle, there was no evidence in the record as to what kind of drug hydrocodone was, whether it could cause intoxicating effects, or whether the symptoms of intoxication D experienced were also indicative of intoxication by hydrocodone.

“We also decline the State’s invitation to hold that the entire statutory definition of ‘intoxicated’ should be included in everyDWI jurycharge regardless of the evidence adduced at trial.” “We have explained that the State can use this to its advantage by alleging in its charging instrument that the defendant was simply ‘intoxicated’ or by including the entire statutory definition, instead of pleading the specific intoxicant as was previouslyrequired.

However, it is the responsibility of the trial court to deliver to the jury a written charge setting forth the ‘law applicable to the case.’” Tex Code Crim. Proc. art. 36.14. “Part of that duty includes applying the law to the facts of the case. And, although the trial court is obliged to include in the jury charge statutory definitions that affect the meaning of elements of the crime, Villarreal v. State, 286 S.W.3d 321, 329 (Tex Crim. App. 2009), the charge must also be tailored to the facts presented at trial.” “That is, the trial court must submit to the jury only the portions of the statutory definition of ‘intoxicated’ that are supported by the evidence. To do otherwise is error.” “We agree with the court of appeals that Ouellette is distinguishable from the facts of this case and that, here, the jury charge was erroneous because it did not apply the law to the facts produced at trial.”

24. Navarro and acquittal for MA DWI not bar to retrial for MB DWI

Ex parte Navarro, 523 S.W.3d 777 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d) - When an appellate court renders a judgment of acquittal for MA DWI because there was no evidence of an aggravating element, could defendant be retried for a lesser-included offense MB DWI that did not require proof of the aggravating element? Defendant could be retried because the jury necessarily found the existence of every element for the MB DWI beyond a reasonable doubt, and while the court may have erroneously upgraded the conviction to a MA DWI, the judgment rendering an acquittal based on the absence of evidence for the aggravating element would not justify the conclusion that D should also be acquitted of the MB DWI, for which there was sufficient evidence. The trial court’s order denying the application for writ of habeas corpus is affirmed.

25. Clement and in-court HGN of D by officer and right against selfincrimination

Clement v. State, 499 S.W.3d 153 (Tex. App. - Forth Worth 2016, pet. ref’d) At trial, officer testified that he had mistakenly checked the box on his report that indicated D had resting nystagmus. Persons with resting nystagmus are not candidates for the HGN test. State asked to have officer check D for resting nystagmus and D objected that if D had that condition three years ago at time of arrest D would not necessarily have it now and such a test would violate privilege against self-incrimination. Judge allowed incourt test and officer found no resting nystagmus. Court held that when officer conducted an in-court HGN testing of D, such action did not implicate D’s privilege against self-incrimination because the testing did not elicit testimonial communications. Judgment affirmed.

26. Strehl and lack of proof of prior DWI in felony DWI case

Strehl v. State, 486 S.W.3d 110 (Tex App. - Texarkana 2016, no pet.) - “In a felony DWI case, the State must prove, in addition to the . . . elements of that primary offense, that the accused has twice previously, and sequentially, been convicted of DWI.” State linked D to one prior offense. In attempting to link D to the second prior offense, however, the State introduced only a certified copy of a judgment convicting Joseph Leo Strehl, III, of DWI. This judgment contained no fingerprint, photograph, signature, or other information establishing that the person convicted in cause number F35365 was D. Further, the trial record contained no testimony establishing that D was the same person that was convicted in cause number F35365. The State claimed that D’s name is unique, that the name appears on both judgments convicting a Joseph Leo

Strehl, III, that both convictions were of the same offense, and that both convictions were for offenses committed in Johnson County The determination of whether sufficient evidence links the defendant to the prior conviction is made on a case-by-case basis. “No specific document or mode of proof is required to prove” the link. The State is entitled to use circumstantial evidence to prove the defendant is the same person named in the alleged prior convictions, and proof may be made in a number of different ways. For example, the State can meet its burden by introducing multiple documents that, when read together, contain “sufficient information to establish both the existence of the prior conviction and the defendant's identity as the person convicted.”

In order for a rational jury to find that D was, beyond a reasonable doubt, the person convicted in the second jurisdictional prior, it was “incumbent on the State to go forward and show by independent evidence that the defendant [wa]s the person so previously convicted.” Evidence that the defendant merely has the same name as the person previouslyconvicted is not sufficient to satisfy the prosecution’s burden. Court of appeals reduced D’s felony DWI conviction to misdemeanor DWI because the State failed to prove D’s connection to the second jurisdictional prior offense. The record contained no testimony establishing that D was the same person that was convicted in the prior offense and no date of birth to enable matching

27. Crawford and asleep in vehicle and state refused stipulate to prior DWI

Crawford v. State, 496 S.W.3d 334 (Tex. App. - Fort Worth 2016, pet. ref’d)Felony DWI and indictment alleged three prior DWI’s, two for felony DWI jurisdiction and one for enhancement. Before voir dire began, D offered to stipulate to the two

jurisdictional prior DWI convictions. D also asked that the State not be allowed to read the enhancement allegations before the jury. The trial court denied that request, and D entered his plea to the indictment as read. The repeat offender allegation was not presented to the jury. The Court cited the TCCA opinion in Hollen v. State as follows, “I harbor grave concerns that, under the current law, felony DWI defendants will be convicted solely on their prior alcohol related convictions rather than on the offense charged, even when the defendant stipulates to the jurisdictionally required prior convictions. The danger is great, I believe, because the prior convictions the State is required to prove are for similar offenses, any of the specified alcohol related offenses. These understandably arouse strong emotions, especiallyin those whose lives have been touched by preventable alcohol related accidents.”

The Court stated, “Appellant suggests that when a DWI defendant stipulates to the jurisdictional enhancements, the issue is uncontested and should be a matter to be determined by the trial court, not the jury. Although that is a common-sense approach to limiting the issues to be determined, the Texas Court of Criminal Appeals has informed us that it is not the law.” “[W]e are constrained by the authority of the Texas Court of Criminal Appeals to hold that the trial court did not err by allowing the State to inform the jury of the prior DWI convictions and to present evidence of them to the jury to support the jury’s determination of the sufficiency of the proof of those prior DWI convictions.”

28. Siddiq and technique of blood draw and recorded jail conversations

Siddiq v. State, 502 S.W.3d 387 (Tex. App. - Fort Worth 2016, no pet.) - In D’s trial for DWI, the law-enforcement exception to the federal wiretap statute was applicable to a recording of D’s jailhouse phone call in which

he admitted he was drunk because recordings were routinely made pursuant to a policy “The call was therefore admissible under 18 U.S.C. § 2510(4), (5)(a)(ii); Tex Code Crim. Proc. Ann. art. 18.20, § 1(3), (4); and Tex. Penal Code Ann. § 16.02(a).” “Although a blood draw differed from hospital procedures in the position of defendant’s arm, the method of cleaning the site, and the method of use of a tourniquet, there was no evidence that defendant’s health or safety was threatened, making the blood draw reasonable.” “Because the phone call was not illegally recorded, defendant was not entitled to a jury instruction under Tex. Code Crim. Proc. Ann. art. 38.23(a).” Judgment affirmed.

29. Haas and authenticity of prior DWI’s in enhanced DWI case

Haas v. State, 494 S.W.3d 819 (Tex App. - Houston [14th Dist.] 2016, no pet.)

“In seeking to prove that defendant was a habitual violator for driving while intoxicated (DWI) under Tex. Code Crim. Proc. Ann. art. 37.07, documents that were certified by the clerk of court by way of a certified document number and a seal on the last page of each document, even though they were computer-generated, were authentic under Tex. R. Evid. 901.” “Rule 901(b)(7) did not require original seals.” “The documents admitted, which together established a prior conviction for DWI under defendant’s full name, birth date, and Texas driver’s license number, sufficientlyestablished that defendant was the prior offender.” Judgment affirmed.

30. Corley and retrograde extrapolation evidence was reliable

Corley v. State, 541 S.W.3d 265 (Tex. App Houston [14th Dist.] 2017, no pet.)Trial judge reasonably could have determined the retrograde-extrapolation evidence was reliable because the expert under TRE 702

knew manyof the individual factors, including the amount of food and time D last ate, the time of D’s last drink, and the time and results of D’s breath tests.

“Retrograde extrapolation is the process of computing a person’s bloodalcohol level at the time of driving based on the alcohol level found in the person’s blood, drawn some time later. Mata v. State, 46 S.W.3d 902, 908-09 (Tex Crim. App. 2001). Retrograde-extrapolation testimony can be reliable if certain factors are known. Veliz v. State, 474 S.W.3d 354, 359 (Tex. App. Houston [14th Dist.] 2015, pet. ref’d). A paramount consideration is the expert’s ability to apply the science and explain it with clarity. Mata, 46 S.W.3d at 916. The expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation and must recognize the subtleties of the science and the risks inherent in any retrograde extrapolation. Id. The expert also must be able to apply the science clearly and consistently. Id.”

“In assessing the reliability of retrograde-extrapolation evidence, courts must consider: (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing the extrapolation. Id. Relevant personal characteristics may include (1) weight, (2) gender, (3) the person’s typical drinking pattern and tolerance for alcohol, (4) how much alcohol the person had to drink on the occasion in question, (5) what the person drank, (6) the duration of the drinking, (7) the time of the last drink, and (8) how much and what food the person consumed before, during, and after the drinking. Id. The expert need not know every one of these data points to produce a reliable extrapolation. Id at 916-17. Otherwise, ‘no valid extrapolation could ever occur without the defendant’s

cooperation, since a number of facts known only to the defendant are essential to the process.’ Id. at 916.”

“The Court of Criminal Appeals has set forth the following guidelines for balancing the factors: If the State conducts more than one test, each test a reasonable length of time apart, and the first test [was] conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant’s [blood-alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. Id. at 916-17.”

“Approximately one hour elapsed between the traffic stop and the breath tests. The longer the period between the traffic stop and the breath test, the less reliable retrograde extrapolation will be. See Bhakta v. State, 124 S.W 3d 738, 742 (Tex App. - Houston [1st Dist.] 2003, pet. ref’d). More than two hours after the offense is an unreasonable amount of time. See Bigon v. State, 252 S.W.3d 360, 368 (Tex. Crim. App. 2008) (noting ‘research indicates that a blood test can be reliable if taken within two hours of driving’); Mata, 46 S.W 3d at 916-17 (concluding that testing blood-alcohol concentration more than two hours after the alleged offense seriously affects the reliability of any extrapolation); Fulenwider v. State, 176 S.W.3d 290, 295 (Tex. App. - Houston [1st Dist.] 2004, pet. ref’d). Although the police conducted two breath tests, because the tests were only a few minutes apart, the reliability is more akin to situations in which only one test was conducted. See Owens v. State, 135 S.W.3d

302, 308 (Tex. App. - Houston [14th Dist.] 2004, no pet.). Because the two tests were close together in time and an hour from the traffic stop, Israel needed to know some of appellant’s personal characteristics to reliably extrapolate his blood alcohol content at the time he was driving based on the results of the breath tests. Mata, 46 S.W.3d at 916-17.”

“In today’s case, the expert knew many of the individual factors, including (1) the amount of food and time appellant last ate, (2) the time of appellant’s last drink, and (3) the time and results of appellant’s breath tests. Based on this record, the trial court reasonably could have concluded that the retrogradeextrapolation evidence Israel proffered was reliable and that Israel’s testimony was helpful. See Mata, 46 S.W.3d at 916-17; Fulenwider, 176 S.W.3d at 297. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Israel's testimony.”

31. Ortiz and absence of retrograde extrapolation and guilty finding

In Ortiz v. State, 628 S.W.3d 958 (Tex App. Amarillo, July 28, 2021, no pet), deputy saw D driving across a yellow line into the lane of oncoming traffic. When deputy requested to see D’s drivers license, he struggled locating it in his wallet before she retrieved it for him. D’s breath smelled of alcohol, consistent with D’s admission during the traffic stop that he had consumed ten beers. There was no retrograde extrapolation. The court of appeals recognized that “the Court of Criminal Appeals has held for more than fifteen years that alcohol content tests ‘are probative without retrograde extrapolation testimony.’” State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013) (quoting State v. Mechler, 153 S.W.3d 435 (Tex Crim. App. 2005)). “Breath or blood test results can be relied upon, even without retrograde extrapolation testimony, along with other evidence of intoxication to determine

whether a particular defendant was intoxicated, as the term is defined, at the time of driving.” Ramjattansingh v. State, 548 S.W 3d 540 (Tex Crim. App. 2018) (citing Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004)). When a trial court submits both intoxication definitions to the jury, the jury may consider loss of normal use of mental or physical faculties or 0.08 or more. In this case, an hour and fifteen minutes after Appellant was stopped, he blew .298 and .309. There was no evidence he drank alcohol after driving. “Thus, despite the absence of any retrograde extrapolation, Appellant’s breathalyzer results tend to make it more probable than not that he was intoxicated at the time he drove under either definition of intoxication because the test results provided evidence that he had consumed alcohol.” Kirsch v State, 306 S.W.3d 738 (Tex Crim. App. 2010) (“BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication.”); Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (results from defendant’s breath test, taken more than an hour after traffic stop, had considerable probative value on issue of intoxication at time of driving). Under the facts of this case, evidence is sufficient in light most favorable to verdict. Kirsch, 306 S.W.3d at 745 (admission of drinking alcoholic beverages and erratic driving raises inferences of intoxication); Zill v. State, 355 S.W 3d 778, 786-88 (Tex App. - Houston [1st Dist.] 2011, no pet.) (strong odor of alcohol and admission of drinking raises inferences of intoxication). Moreover, after being indicted for the offense, Appellant jumped bail and fled the jurisdiction for three years before being caught re-entering the United States from Mexico. In conclusion, the admitted evidence supports the jury’s finding that Appellant was intoxicated while operating his car.

32. Bowman and IAC for failure get payroll records for impeachment

Ex parte Bowman, 533 S.W.3d 337 (Tex. Crim. App. 2017) - Appellant failed to show that his counsel was ineffective for failing to properly investigate his DWI case because there was no evidence showing whether counsel had obtained the officer's payroll records to use to impeach him, as counsel testified at the hearing that he could not remember whether he had obtained the records.

“Appellant argued on appeal that the convicting court’s deference to trial counsel’s strategy decision was inappropriate because that strategy decision had been based upon an inadequate investigation. Trial counsel could not legitimately choose to raise a question about the arresting officer’s financial motivation to testify, but then soft sell it for strategic reasons, without first conducting an investigation adequate to reveal exactly how compelling a case he could have made. The court of appeals agreed. Bowman, 444 S.W.3d at 281. The court of appeals noted that the convicting court had found as a matter of fact both 1) that trial counsel had endeavored to expose the arresting officer’s financial motive, and 2) that he had failed to obtain the officer’s payroll records. So long as trial counsel chose to broach the subject of the officer’s financial motive, the court of appeals explained, he could not invoke ‘strategy’ as an excuse not to conduct an adequate investigation into that financial motive. Id According to the court of appeals, ‘[a]n investigation that did not include obtaining the payroll records, which were available and readily detailed the vast extent of [the arresting officer’s] overtime pay abuse, does not reflect reasonable professional judgment.’ Id. (citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L Ed. 2d 471 (2003)).”

“In his writ application, Appellant argued, and the court of appeals agreed, that

Barnett did not conduct an adequate preliminary investigation to inform his decision to forego impeaching Officer Lindsey with his payroll records Bowman, 483 S.W.3d at 740-41. We need not address this contention, however, because we conclude there is no record support for the premise. The record does not bear out the convicting court’s finding that Barnett failed to obtain and review those records to begin with. At no point did Barnett concede that he failed to obtain Lindsey’s payroll records prior to Appellant’s 2005 DWI trial. The trial court made a fact finding that Barnett did not have those payroll records, but there is no evidentiary support for that finding. All Barnett ever conceded at the writ hearing was that he could not presently remember whether he had obtained those records.”

33. Voda and speedy trial

Voda v. State, 545 S.W.3d 734 (Tex. App. - Houston [14th Dist.] 2018, no pet.) - D was not denied a speedy trial due to the 32-month delay because D waited 18 months before asserting his speedy trial rights via a motion to dismiss, failed to show prejudice by the delay, failed to show exercise of due diligence in attempting to locate a witness, D was on bond during the 32-month period between indictment and motion to dismiss, and failed to show that the claims caused D stress beyond the level normally associated with being arrested for driving while intoxicated.

34. Taylor and corpus delecti

Taylor v. State, 572 S.W.3d 816 (Tex. App. - Houston [14th Dist.] 2019, pet. ref’d) “The corpus delicti rule applies when there is an extrajudicial confession to involvement in a crime.” See Miller v. State, 457 S.W.3d 919, 924 (Tex Crim. App. 2015). Under the rule, “a defendant’s extrajudicial confession does

not constitute legally sufficient evidence of guilt absent independent evidence ” Id. “The rule’s purpose is to ensure that a person will not be convicted based solely on his own false confession to a crime that never occurred.” Id. “Within the framework of the Jackson sufficiency standard, the corpus delecti rule requires only that evidence independent of the extrajudicial confession show ‘that the “essential nature” of the charged crime was committed by someone.’” Id “The rule is thus satisfied when some evidence outside of the extrajudicial confession, considered alone or in conjunction with the confession, shows that the crime actually occurred.”

In this case, D’s car was stopped in main lane on freeway while D was standing alone outside car near front door. No other person was on the scene who could have operated the car. PO smelled alcohol on D’s breath and D had “slow, deliberate speech” os PO did SFST’s. D failed HGN and blew .169 and .170 three hours after car stalled. This is corroborating evidence D was operating motor vehicle in public place while intoxicated, and thus the corpus delecti rule was satisfied.

35. Harrell and corpus delecti

In Harrell v. State, 620 S.W.3d 910 (Tex. Crim. App. 2021), the police department received a report at about 4:00 a.m. of a gray minivan being driven erratically. The caller followed the van to a gas station, told police where it was parked, provided the license plate number, then hung up without describing the driver. Police located the van a few minutes later, the engine was off, and the defendant was in the driver seat with the seatbelt buckled and admitted to driving the van. Two passengers were in the van and they along with the driver were intoxicated. The defendant claimed that his admission to driving alone failed to show the corpus delicti of DWI because, without his admission, there

was insufficient evidence he operated the van. The Court recognized that:

[I]n cases involving extrajudicial confessions when “beyond a reasonable doubt” is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (citing Hacker v State, 389 S.W 3d 860, 865 (Tex Crim. App. 2013)). To determine if the corpus delicti of an offense is shown, an appellate court must examine all the evidence except the defendant’s extrajudicial confession to see if it shows that “the ‘essential nature’ of the charged crime was committed by someone.” Id. (citing Hacker, 389 S.W.3d at 866 (emphasis added); Salazar v. State, 86 S.W.3d 640, 645 (Tex Crim. App. 2002)). The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes. Id. (quoting Carrizales v. State, 414 S.W.3d 737, 740 (Tex. Crim. App. 2013)). The analysis focuses on only whether someone committed the crime, but it is not as rigorous as the Jackson legal sufficiency review. Threet v. State, 157 Tex Crim. 497, 250 S.W.2d 200, 200 (1952). The corpus delicti of DWI is that someone operated a motor vehicle in a public place while intoxicated. Id.

The Court held that, absent the defendant’s admission to driving, the corpus delicti of DWI was met under the facts of this case because the evidence tends to show: (1) the defendant and passengers were traveling in the same van identified by the 911 caller; (2) the van’s plates were the same plates reported by the 911 caller; (3) the van was found where the caller said it was parked; (4) the defendant was in the driver seat with the seatbelt buckled; (5) one of the passengers, when asked about the defendant’s intoxication, told the officer that the defendant was “supposed to be the sober one.” The Court held that this

evidence “tends to show that someone in the minivan was operating it on the highwaywhen 911 was called. (While the evidence indicates that Appellant was driving, we stress that proof of identity is not required in a corpus delicti analysis.)” “The corpus delicti rule has been satisfied and the evidence is legally sufficient because it tends to show that someone operated a motor vehicle in a public place while intoxicated.”

36. Cabral-Tapia and no proof PO followed NHTSA HGN standards

State v. Cabral-Tapia, 572 S.W.3d 751 (Tex. App. Amarillo 2019, no pet. h.) -

The judge correctly suppressed HGN results because in order for the test to be considered reliable under TRE 702, the PO doing the HGN test must follow the standardized procedures specified in the NHTSA manual

The State failed to prove the PO followed the NHTSA test procedures because the case was not one involving proof of slight variation from standardized procedures and the PO was trained on a superceded NHTSA manual and the older manual was not admitted into evidence. It was therefore conjecture whether the testing techniques itemized in the old manual were techniques deemed acceptable under the new one.

37. Screws and probation conditions in the court’s charge

Screws v. State, 630 S.W.3d 158 (Tex App. - Eastland 2020, no pet.) - “The trial court did not err in failing to include all possible conditions of communitysupervision in the jury charge; the court was not required to list all of the terms and conditions of community supervision in the charge; The trial court’s failure to provide the jury with a reasonable-doubt instruction under Tex Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Supp. 2019) did not deprive defendant of a fair and

impartial punishment hearing because his pending misdemeanor offense of unlawful possession of a handgun was only briefly mentioned while he was being cross-examined by the State; additionally, the punishment assessed by the jury was below that which the State requested and the maximum sentence allowed by law.”

38. Flores-Garnica and ATV is motor vehicle for DWI purposes

In Flores-Garnica v State, 625 S.W.3d 651 (Tex. App. Fort Worth 2021, no pet.), an officer saw an ATV rush into a store’s parking lot, the driver ran into the store and exited with a 12-pack of beer, left the parking lot in the ATV “in a very alarming manner,” and entered a mobile home parking lot that was marked as private property The officer stopped the defendant’s ATV, smelled alcohol on his breath, conducted SFST’s, and arrested him for DWI. The defense at trial was that the defendant was driving on a private road and the ATV was not a motor vehicle contrary to the officer’s testimony that it was a motor vehicle. The court of appeals recognized that, “A person commits [DWI] if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). “Motor vehicle,” as used in Section 49.04, “has the meaning assigned by Section 32.34(a).” The court concluded that pursuant to § 32.34(a), a motor vehicle therefore is “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.” “Highway” is not defined in the Penal Code, but in Hardy v. State, 281 S.W.3d 414, 421 n.14 (Tex. Crim. App. 2009), the Court of Criminal Appeals stated, “In common usage, ‘highway’ is an area that has been modified so that it may be used for vehicular travel.” A parking lot, however, is not a highway Rouse v. State, 651 S.W.2d 736, 738 (Tex. Crim.

App. [Panel Op.] 1982). The court of appeals held that the evidence, including the videos, establish the ATV “could transport a person and property on a highway and that it was not exclusively used on stationary rails or tracks. Specifically, the evidence shows that Flores-Garnica drove the ATV to the store for beer and then drove it to the mobile home park on roads. We therefore hold the evidence sufficient to support the jury's finding that the ATV was a motor vehicle” and that the mobile home road was a public place.

39. Cook and two children in car is only one offense

In Ex parte Cook, No. WR-91,503-01 (Tex Crim. App., September 15, 2021), the Court of Criminal appeals determined that, when a driver arrested for DWI with two children in the car (a state jail felony), the driver commits only one offense, not two. The three types of gravamen for unit of prosecution purposes are: (1) result of conduct, (2) nature of conduct, or (3) circumstances surrounding the conduct. “An offense may have more than one of these types of conduct elements, but the question is which conduct element is the focus of the statute.” DWI has both nature of conduct element (driving while intoxicated) and circumstance surrounding the conduct (presence of a child under age 15). With DWI, “the circumstance element (the presence of a child under age 15) does not make otherwise innocent conduct criminal; it merely aggravates otherwise criminal conduct.” With DWI, he circumstance element “does not describe the focus of the offense. Rather, the focus, for unit of prosecution purposes, is the act of driving while intoxicated. Consequently, we conclude that each incident of driving describes the unit of prosecution for the offense at issue, not the presence of each child.”

40. Martinez and judge cannot sua sponte dismiss DWI information

In State v. Martinez, No. 14 20 00255CR (Tex. App. - Houston [14th Dist], August 12, 2021, no pet.), the trial judge dismissed a DWI information sua sponte without a motion to dismiss filed by the D. Defects in a complaint must be raised pretrial and failure to object pretrial to a defect, error, or irregularity in an information waives the right to raise that issue on appeal. Ramirez v. State, 105 S.W.3d 628 (Tex. Crim. App. 2003); Matthews v. State, 530 S.W.3d 744 (Tex. App. - Houston [14th Dist.] 2017, pet. ref’d). A sua sponte dismissal of an information is improper “because neither party had the opportunity to raise or develop these issues in the trial court before the complaint was dismissed and the case proceeded to appeal . . .”

41. Olalde and causal connection intox manslaughter/assault

In Olalde v. State, 635 S.W.3d 404 (Tex. App. - San Antonio 2021, no pet.), D’s vehicle collided with another vehicle on an access road resulting in death and injuries to four passengers and driver. D blew 0.18 and 0.14 and was charged with intox manslaughter and intox assault in that intoxication caused the harm alleged by driving a motor vehicle into another motor vehicle. D claimed on appeal that two factors, when viewed “in combination,” were a “concurrent cause of the accident and resulting harm, thereby making her intoxication a clearly insufficient cause of the harm.” D claimed that a vehicle collided with her vehicle while D was driving which forced D’s vehicle “to move from the far left lane of the access road to the right lane and onto the sidewalk that paralleled the right lane ” D’s expert testified that D “had been traveling on the sidewalk for approximately 140 feet ‘and was reentering the outside travel lane’ at the moment of impact.”

“The existence or nonexistence of a causal connection is normally a question for the jury.” Hale v. State, 194 S.W.3d 39 (Tex App. - Texarkana 2006, no pet.). Under section 6.04(a) of the Texas Penal Code, “a person is criminally responsible if the result would not have occurred but for [that person’s] 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 [was] clearly insufficient.” “In other words, if a concurrent cause is present, ‘two possible combinations exist to satisfy the “but for” requirement: (1) the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may be sufficient to have caused the harm.’” Robbins v. State, 717 S W 2d 348 (Tex Crim. App. 1986) However, “[i]f the additional cause, other than the defendant’s conduct, is clearly sufficient, by itself, to produce the result and the defendant’s conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.” Id.; Walter v. State, 581 S.W.3d 957 (Tex App. - Eastland 2019, pet. ref’d) (holding if injuries caused by defendant contributed to death of deceased, he is responsible even though other contributing causes existed). “Viewing the evidence in the light most favorable to the prosecution and assuming the jury resolved any conflicts in the evidence in the verdict’s favor, the jury could have reasonably found Olalde’s alcohol intoxication – well above the legal limit caused the death and injuries, alone or concurrently with another cause because she was too impaired to operate her Ford Expedition on a public road, causing her to lose control of the vehicle and collide with the Chevrolet Malibu driven by the decedent.”

H. Expunctions

Ex parte Ferris, No. 05-19-00835-CV (Tex App. - Dallas, October 2, 2020, no pet. h.) - D arrested in 2018 for a DWI misdemeanor and acquitted, the trial court did not err by granting an expunction order under Tex. Code Crim. Proc. Ann. art. 55.01(a)(1), “because the 2018 DWI arrest did not arise out of the same criminal episode as the 2014 DWI conviction; therefore, the arrest record for the 2018 DWI offense was available for expunction.” “The dissent identifies In re M.T.R., a decision by the First Court of Appeals, which involved a fact pattern similar to this case. See In re M.T.R., No. 01-18-00938-CV, 2020 Tex. App. LEXIS 1649, 2020 WL 930842, at *1 (Tex. App. Houston [1st Dist.] Feb. 27, 2020, no pet.). In In re M.T.R., the defendant was arrested in 2012 for boating while intoxicated (BWI) in Montgomery County Id He subsequently pleaded guilty to the 2012 BWI offense, was convicted, served his punishment, and paid a fine. Id. In October 2015, the defendant was arrested and charged with DWI in Fort Bend County. Id. The defendant was acquitted of the DWI charge in Fort Bend County, and he sought and obtained an expunction of the acquitted DWI arrest. Id. The Department appealed, and our sister Court held that the 2012 BWI and 2015 DWI were a part of the same criminal episode—interpreting Section 3.01's definition of "criminal episode" outside of the context of prosecution. 2020 Tex. App. LEXIS 1649. We disagree with their reasoning.”

In re K.T., No. 02-19-00376-CV (Tex App. Fort Worth, October 22, 2020, no pet. h.) - The Legislature never intended to prohibit expunction of arrest records if D acquitted of an offense merely because D had previously been convicted of a separate, but same or similar type, of offense. Plain language of TCCP art. 55.01(c) allows D arrested for and charged with DWI in 2017 and acquitted was eligible to expunge the

arrest records even though D had a prior 2013 DWI conviction.

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com (210)354-1919 (210)354-1920 Fax lawofcmg@gmail.com

TCDLA’s 18th Annual Kinard Advanced DWI San Antonio, Texas November 3-4, 2022

GROSS & ESPARZA, P.L.L.C.

1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919

EDUCATION

B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987

PROFESSIONAL ACTIVITIES AND RECOGNITIONS

Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012

Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present

Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995

Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011

President, Texas Criminal Defense Lawyers Association, 2011-2012 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Board of Disciplinary Appeals, Vice Chair 2021-present, Member 2018-present Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009

Named in Best Lawyers in America, 2005 - 2021

Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017

Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021

Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014

Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021

Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble

COURT ADMISSIONS

Supreme Court of the United States, 1991

Supreme Court of the State of Texas, 1987

United States Court of Appeals for the Armed Forces, 1990

United States Court of Appeals for the Fifth Circuit, 1990

United States Court of Appeals for the Tenth Circuit, 1998

United States District Court for the Northern District of Texas, 1990

United States District Court for the Southern District of Texas, 1991

United States District Court for the Eastern District of Texas, 1991

United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS

List of items

Signature of Requestor Date

Texas Department of Public Safety

Save Time – Request Your Driver Record Online www.texas.gov

Important Instructions Read Carefully

The Texas Department of Public Safety may disclose personal information to a requestor without written consent of the DL/ID holder, on proof of their identity and a certification by the requestor that the use of the personal information is authorized under state and federal law and that the information will be used only for the purpose stated and in complete compliance with state and federal law

You must meet one or more of the following exceptions if you do not have written consent of the DL/ID holder to be entitled to receive personal information on the above named individual Please initial each category that applies to the requested driver record

1 For use in connection with any matter of (a) motor vehicle or motor vehicle operator safety; (b) motor vehicle theft; (c) motor vehicle emissions; (d) motor vehicle product alterations, recalls, or advisories; (e) performance monitoring of motor vehicles or motor vehicle dealers by a motor vehicle manufacturer; or (f) removal of nonowner records from the original owner records of a motor vehicle manufacturer to carry out the purposes of the Automobile Information Disclosure Act, the Anti Car Theft Act of 1992, the Clean Air Act, and any other statute or regulation enacted or adopted under or in relation to a law included in the above

2 (Valid for Certified Abstract) For use by a government agency in carrying out its functions or a private entity acting on behalf of a government agency in carrying out its functions

3 For use in connection with a matter of (a) motor vehicle or motor vehicle operator safety; (b) motor vehicle theft; (c) motor vehicle product alterations, recalls, or advisories; (d) performance monitoring of motor vehicles, motor vehicle parts, or motor vehicle dealers; (e) motor vehicle market research activities, including survey research; or (f) removal of nonowner records from the original owner records of motor vehicle manufacturers

4 For use in the normal course of business by a legitimate business or an authorized agent of the business, but only to veri fy the accuracy of personal information submitted by the individual to the business or the authorized agent of the business and to obtain correct information if the submitted information is incorrect to prevent fraud by pursuing a legal remedy against, or recovering on a debt or security interest against the individual

5 (Valid for Certified Abstract) For use in conjunction with a civil, criminal, administrative, or arbitral proceeding in any court or government agency or before any self regulatory body, including service of process, investigation in anticipation of litiga tion, execution or enforcement of a judgement or order, or under an order of any court

For use in research or in producing statistical reports, but only if the personal information is not published, redisclosed, or used to contact any individual

For use by an insurer or insurance support organization, or by a self insured entity, or an authorized agent of the entity, in connection with claims investigation activities, antifraud activities, rating or underwriting

For use in providing notice to an owner of a towed or impounded vehicle

For use by a licensed private investigator agency or licensed security service for a purpose permitted as stated on this page

(Valid for Certified Abstract) For use by an employer or an authorized agent or insurer of the employer to obtain or verify information relating to a holder of a commercial driver license that is required under 49 U S C Chapter 313

S

Commission On Law Enforcement Personal Status Report

Citizen

Gender Federal ID State ID

Education Information

Service History

Appointed As Department Award

Peace Officer

ANTONIO POLICE DEPT. Peace Officer

Total Service Time

Service Start Date Service End Date Service Time

9 years, 3 months

Description Service Time

Peace Officer

Award

years, 3 months

officer time 9 years, 3 months

Award Information

Action Action Date

Officer

Officer

Academy History

Date Institution Course

Courses Completed

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2017 - 08/31/2019 *

Course No. Course Title Course Date Course Hours Institution

3106 Conference ( General ) 6/25/2019

2046 Driving 8/31/2018

2049 Report Writing - general 8/31/2018

2053 Baton (All) 8/31/2018

3018 Police Labor Relations 8/31/2018

3027 Verbal/Nonverbal Communication 8/31/2018

3038 Agency Operations (General) 8/31/2018

3185 85th Legislative Session Legal Update 8/31/2018

3232 Special Investigative Topics 8/31/2018

3342 Tactical Firearms Training 8/31/2018

3344 Less Lethal Electronic Control Device Training 8/31/2018

Assessing for Suicide, Medical, and Mental Impairm 8/31/2018

4100 Information Technology (General) 8/31/2018

6012 Health/Physical Fitness/Stress 8/31/2018

6030 Tactical Vehicle Traffic Stops & Extractions 8/31/2018

1849 De-escalation Tech (SB 1849) 7/10/2018

2083 Drug Recognition Expert InService Training 5/16/2018

Canine Encounters (Intermediate/Advance) 5/15/2018

2046 Driving 5/9/2018

Narcotics/Dangerous Drug Inv. 9/1/2017

Police Labor Relations 9/1/2017

Answering EEO Complaints 9/1/2017

Agency Operations (General) 9/1/2017

Professional Standards/Internal Investigations Tra

Training Mandates

Texas Municipal Police Association

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy 85th Session State and Federal Law Update

San Antonio Police Academy Special Investigative Topics (Intermediate)

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Combined Law Enforcement Asso. of Texas De-escalation Tech (SB 1849)

Bill Blackwood LEMI of Texas

San Antonio Police Academy Canine Encounter (Intermediate) Canine Encouter (Advance)

TEEX Central Texas Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

9/1/2017

San Antonio Police Academy

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2017 - 08/31/2019 *

No. Course Title Course Date Course Hours Institution

Course

3305 Active Shooter Response 9/1/2017

3342 Tactical Firearms Training 9/1/2017

3343 Less Lethal Chemical Weapons Training (OC, Mace, e

9/1/2017

3344 Less Lethal Electronic Control Device Training 9/1/2017

3904 Cultural Awareness 9/1/2017

3931 Defensive Driving 9/1/2017

6012 Health/Physical Fitness/Stress 9/1/2017

6030 Tactical Vehicle Traffic Stops & Extractions 9/1/2017

Unit Hours 116

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

09/01/2015 - 09/30/2017

No. Course Title Course Date Course Hours Institution

Course

2024 Narcotics/Dangerous Drug Inv. 9/1/2017

3018 Police Labor Relations 9/1/2017

3030 Answering EEO Complaints 9/1/2017

3038 Agency Operations (General) 9/1/2017

3206 Professional Standards/Internal Investigations Tra

9/1/2017

3305 Active Shooter Response 9/1/2017

3342 Tactical Firearms Training 9/1/2017

3343 Less Lethal Chemical Weapons Training (OC, Mace, e

9/1/2017

3344 Less Lethal Electronic Control Device Training 9/1/2017

3904 Cultural Awareness 9/1/2017

3931 Defensive Driving 9/1/2017

6012 Health/Physical Fitness/Stress 9/1/2017

6030 Tactical Vehicle Traffic Stops & Extractions 9/1/2017

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2015 - 09/30/2017

Course No. Course Title Course Date Course Hours Institution

3851 Breathalyzer / Intoxilyzer 8/17/2017

8158 Body Worn Camera 5/25/2017

2042 Mechanics of Arrest & Search 6/15/2016

2045 Patrol Procedures 6/15/2016

2096 Arrest, Search & Seizure (Non-Intermediate Core Co 6/15/2016

2083 Drug Recognition Expert InService Training 3/22/2016

2053 Baton (All) 3/11/2016

2095 Use of Force (NonIntermediate Core Course) 3/11/2016

3018 Police Labor Relations 3/11/2016

3038 Agency Operations (General) 3/11/2016

3184 84th Legislative Session Legal Update 3/11/2016

3342 Tactical Firearms Training 3/11/2016

3344 Less Lethal Electronic Control Device Training 3/11/2016

3843 CIT-Update 3/11/2016

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Bill Blackwood LEMI of Texas

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

San Antonio Police Academy 84th Session State and Federal Law Update

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy Crisis Intervention Training (Intermediate) issued prior to 4-1-18

Peace Officer Intermediate Options Peace Officer Intermediate Options 2009-09

3871 Stress Manangement 3/11/2016

6012 Health/Physical Fitness/Stress 3/11/2016

2046 Driving 3/11/2016

57120 Calibre Press The Bulletproof Warrior 12/10/2015

3038 Agency Operations (General) 10/9/2015

3018 Police Labor Relations 10/9/2015

3851 Breathalyzer / Intoxilyzer 9/17/2015

Unit Hours 126

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Combined Law Enforcement Asso. of Texas

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2013 - 08/31/2015

Course No. Course Title Course Date Course Hours Institution

2046 Driving 6/19/2015

2049 Report Writing - general 6/19/2015

3038 Agency Operations (General) 6/19/2015

3270 Human Trafficking 6/19/2015

3342 Tactical Firearms Training 6/19/2015

3343 Less Lethal Chemical Weapons Training (OC, Mace, e

6/19/2015

3344 Less Lethal Electronic Control Device Training 6/19/2015

3939 Cultural Diversity 6/19/2015

6012 Health/Physical Fitness/Stress 6/19/2015

2045 Patrol Procedures 6/19/2015

2031 White Collar Crimes 6/19/2015

2178 S.F.S.T. Practitioner Update 3/26/2015

2045 Patrol Procedures 9/26/2014

2046 Driving 9/26/2014

2053 Baton (All) 9/26/2014

3018 Police Labor Relations 9/26/2014

3038 Agency Operations (General) 9/26/2014

3183 83rd Legislative Session Legal Update 9/26/2014

3232 Special Investigative Topics 9/26/2014

3287 Animal Investigations/Law 9/26/2014

3342 Tactical Firearms Training 9/26/2014

3344 Less Lethal Electronic Control Device Training 9/26/2014

6012 Health/Physical Fitness/Stress 9/26/2014

3851 Breathalyzer / Intoxilyzer 8/25/2014

2082 Drug Recognition Expert Certification 4/25/2014

2081 Drug Recognition Expert Classroom 3/27/2014

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

San Antonio Police Academy Human Trafficking

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy Cultural Diversity (Intermediate)

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Texas Municipal Police Association

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy 83rd Session State and Federal Law Update

San Antonio Police Academy Special Investigative Topics (Intermediate)

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Bill Blackwood LEMI of Texas

Bill Blackwood LEMI of Texas

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2013 - 08/31/2015

No. Course Title Course Date Course Hours Institution

Course

2080 Drug Recognition Expert PreSchool 3/18/2014

2180 NHTSA - ARIDE 2/7/2014

Breathalyzer / Intoxilyzer 9/27/2013

Bill Blackwood LEMI of Texas

Bill Blackwood LEMI of Texas

San Antonio College LEA Unit Hours 266

Training Mandates

09/01/2011 - 08/31/2013

No. Course Title Course Date Course Hours Institution Training Mandates

Course

2045 Patrol Procedures 4/19/2013

2046 Driving 4/19/2013

2096 Arrest, Search & Seizure (Non-Intermediate Core Co 4/19/2013

3018 Police Labor Relations 4/19/2013

3159 Property Seziure and Forfeiture (General) 4/19/2013

3305 Active Shooter Response 4/19/2013

3340 Crowd Control 4/19/2013

3342 Tactical Firearms Training 4/19/2013

3343 Less Lethal Chemical Weapons Training (OC, Mace, e

4/19/2013

3344 Less Lethal Electronic Control Device Training 4/19/2013

3854 Computer Operations 4/19/2013

Health/Physical Fitness/Stress 4/19/2013

3700 Management/Supervision 4/19/2013

Officer Safety/Survival 2/26/2013

Technical/Specialized 12/18/2012

3300 Patrol/Tactical 12/6/2012

2178 S.F.S.T. Practitioner Update 10/4/2012

Patrol/Tactical 4/6/2012

FEMA NIMS Multi Coordi Sys (MACS) (FEMA IS-701a) 3/9/2012

Computer Operations 3/9/2012

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Victoria College LEA

Texas Municipal Police Association

Combined Law Enforcement Asso. of Texas

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2011 - 08/31/2013

No. Course Title Course Date Course Hours Institution

Course

3340 Crowd Control 3/9/2012

6012 Health/Physical Fitness/Stress 3/9/2012

3402 DWI/DUI Detection and Enforcement 3/9/2012

2046 Driving 3/9/2012

3182 82nd Legislative Session Legal Update 3/9/2012

3300 Patrol/Tactical 3/9/2012

3700 Management/Supervision 3/9/2012

3342 Tactical Firearms Training 3/9/2012

3843 CIT-Update 3/9/2012

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

2053 Baton (All) 3/9/2012

3409 Crash Reporting & Analysis Course (TXDOT) 11/11/2011

3851 Breathalyzer / Intoxilyzer 11/4/2011

3214 Family Violence Web w/ Exercises 10/10/2011

09/01/2009 - 08/31/2011

San Antonio Police Academy 82nd Session State and Federal Law Update

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy Crisis Intervention Training (Intermediate) issued prior to 4-1-18 Peace Officer Intermediate Options Peace Officer Intermediate Options 2009-09

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

TCOLE Online

Part 1 of 4 (POSEIT) Special Investigative Topics Unit Hours 180

Course

No. Course Title Course Date Course Hours Institution Training Mandates

3344 Less Lethal Electronic Control Device Training 7/15/2011

2053 Baton (All) 6/15/2011

2010 Auto Theft/Motor Vehicle Inv. 4/29/2011

2031 White Collar Crimes 4/29/2011

2046 Driving 4/29/2011

3300 Patrol/Tactical 4/29/2011

3341 Police K9 Training 4/29/2011

3342 Tactical Firearms Training 4/29/2011

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

San Antonio Police Academy

Texas Commission On Law Enforcement Personal Status Report

Courses Completed

09/01/2009 - 08/31/2011

Course No. Course Title

3343 Less Lethal Chemical Weapons Training (OC, Mace, e

Course Date Course Hours Institution

4/29/2011

3700 Management/Supervision 4/29/2011

3939 Cultural Diversity 4/29/2011

3854 Computer Operations 4/29/2011

6012 Health/Physical Fitness/Stress 4/29/2011

San Antonio Police Academy

San Antonio Police Academy

Training Mandates

San Antonio Police Academy Cultural Diversity (Intermediate)

San Antonio Police Academy

San Antonio Police Academy

3722 Peace Officer Field Training 7/24/2010 160 San Antonio Police Academy Peace Officer Field Training

66700 FEMA National ICS (FEMA IS-700a) 5/7/2010

66200 FEMA ICSSingle Res/Initial Action Inc(FEMA IS-200) 5/7/2010

66100 FEMA Intro ICS (FEMA IS100a) 5/7/2010

101 Addendum Basic Peace Officer 5/7/2010

SAN ANTONIO POLICE DEPT. (Training Rosters)

SAN ANTONIO POLICE DEPT. (Training Rosters)

SAN ANTONIO POLICE DEPT. (Training Rosters)

San Antonio Police Academy

2054 Radar 5/7/2010 24 San Antonio Police Academy

3255 Asset Forfeiture 5/7/2010

3256 Racial Profiling 5/7/2010

San Antonio Police Academy Asset Forfeiture (Intermediate)

San Antonio Police Academy Racial Profiling (Intermediate)

3277 Identity Theft 5/7/2010

3807 TCIC/NCIC for Less than Full Access Operators 5/7/2010

1000 Basic Peace Officer 3/4/2010

San Antonio Police Academy Personnel Orientation

San Antonio Police Academy Identity Theft (Intermediate) 1999 Personnel Orientation by Dept. Basic Proficiency 5/7/2010

San Antonio Police Academy

San Antonio Police Academy Crisis Intervention Training (Mandate)

Cultural Diversity (Mandate) S.F.S.T. NHTSA 24hour Practitioner Special Investigative Topic (Mandate) State and Federal Law Update

2176 S.F.S.T. NHTSA 24hour Practitioner - BPOC 3/4/2010

San Antonio Police Academy

Commission On Law Enforcement

Status Report

Courses Completed

Training Mandates

San Antonio Police Academy Crisis Intervention Training (AdvPOC) issued prior to 4-1 -18

Crisis Intervention Training (Intermediate) issued prior to 4-1-18

Peace Officer Intermediate Options

Peace Officer Intermediate Options 1987-01

Peace Officer Intermediate Options 2005-01

Peace Officer Intermediate Options 2006-01 Peace Officer Intermediate Options 2009-09

https://mail.google.com/mail/u/0?ik=0e2079e09d&view=pt&search=all...

Booking Photo Request 3 messages

Michael Gross <lawofcmg@gmail.com>Thu, May 9, 2019 at 10:58 AM

To: record@bexar.org

Please email me the booking photo for my client, , SID # , date of arrest . Thank you.

Sincerely,

Michael C. Gross

Board Certified - Criminal Law & Criminal Appellate Law

Texas Board of Legal Specialization Board Certified - Criminal Trial Advocacy National Board of Trial Advocacy

Gross & Esparza, P.L.L.C. Website: txmilitarylaw.com 1524 N. Alamo St. San Antonio, Texas 78215 (210) 354-1919 (210) 354-1920 Fax

Central Records <record@bexar.org>Thu, May 9, 2019 at 11:13 AM To: Michael Gross <lawofcmg@gmail.com>

A n: Michael Gross

Phone:

Fax:

DEANDRA GRANT’S BLOOD DRAW ITEMS TO REQUEST AS POSTED ON THE TCDLA LIST SERVE

1. The protocol or standard operating procedure, by whatever name it is known, for all nurses who draw blood for purposes of blood alcohol testing

2. Any logs, reports or spreadsheets, or other documents, in whatever form, indicating that protocol or standard operating procedure was followed in the blood draw at issue in this case and indicating where specifically the blood draw occurred (direct venipuncture vs. from indwelling IV line, location of venipuncture relative to indwelling IV lines, etc.)

3. Any logs, reports or spreadsheets, or other documents, in whatever form, indicating any IV solutions and/or medications given to the accused prior to blood being drawn.

4. All logs, reports, spreadsheets, or other documents, in whatever form, reflecting any lab abnormalities noted at the time the blood sample was collected.

5. The general laboratoryprotocol or standard operating procedures manual, by whatever name it is known.

6. The protocol or standard operating procedure, by whatever name it is known, specific to the test used in this case including the make and model of the chemistry analyzer used and the commercial name of the test kit used, along with a copy of the test cartridge packaging insert from the manufacturer.

7. The protocol for the preparation of all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested.

8. The quality control protocol for all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested.

9. All records reflecting internal testing or quality control testing of all solutions, reagents, or mixtures used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was tested.

10. If any solution used in any sample, internal standard, control, mixture, or standard in the batch in which the sample in this case was tested was purchased from an outside supplier, any quality control certificate provided by the supplier or manufacturer with or applicable to such solution.

11. Documents reflecting the expiration date of all externally purchased solutions or reagents used in the batch in which the sample in this case was tested.

12. All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case -- both for the three years preceding the test and for any such testing since the testing in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturers information sheet) against which the proficiency test results are judged.

13. All lab notes, case files, case reports, or bench notes, by whatever name known, and in whatever form, as well as all documents contained in the testing folder specific to the test in this case. This includes a copy of the case or testing folder itself if it contains any notations or entries.

14. All chain of custody documents and records, whether maintained manually or electronically generated, specific to the specimen(s) in this case.

15. All documents, whether manually maintained or electronically recorded. reflecting, evidencing, or concerning, the identity of any person(s) involved in the acquisition, transportation, transmittal, storage, analysis, disposal, or other possession or manipulation of the specimen(s) from which the analysis in this case was performed.

16. All documents, including emails, reflecting communications within the lab or between lab personnel and others outside the lab regarding the drafting or editing of any audit or quality control report or related to the analysis or specimens in this case.

17. All reports of internal audits for the last three years or since the time of the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, reagents, storage facilities, or anything else used in connection with the testing of the sample, internal standards, controls, mixtures, or standards in the batch in this test.

18. All reports of external audits for the three years preceding the test in this case and at any time since the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, storage facilities, or anything else used in connection with the testing of the sample, internal standard, mixtures, standards, and controls in the batch in this test.

19. All documents reflecting lab accreditation (for forensic labs, this specifically includes, without limitation ASCLD and DPS accreditation) and all reports to or of, or communications to and from, any accrediting entity in the three years prior to the test in this case and at any time since the test in this case. This specifically requests not only the accreditation certificate, but also the evaluation and report generated as part of the accreditation process. The documents should include any accreditation in effect at the time of the test in this case as well as any accreditation subsequent to the time of the test in this case.

20. If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

21. All Quality Action Plans for or regarding blood alcohol testing of or for any person listed on chain of custody documents in this case from two years prior to the test in this case to the present.

22. Annual self assessment reports for from two years prior to the test in this case to the present.

23. All deviation request forms regarding blood alcohol testing from two years prior to the test in this case to the present.

24. The method used to transfer blood from the draw site to the lab. ie. In person delivery, pneumatic tube system, etc.

25. Regarding any person listed on chain of custody documents in this case:

A. Employee training record;

B Employment application excluding any personal data such as date of birth, address or social security number;

C. All CV's and resumes; and

D. Performance reviews for two years prior to the test in this case to the present

List of Potentially Discoverable Information Video Recordings

Prior video recordings of that officer

Recordings of other officers present

Audio Recordings (officer)

Radio communications between officers

911 recordings

Police reports

Arresting officer’s report

Arresting officer’s other DWI reports

Reports from other officers present Injured prisoner report

Use of Force report (photographs)

Supervisor reports

Officer’s personal files (computer and written)

Email/computer communications between officers

NCIC/TCIC records

TCOLE records

Officer’s training records Officer’s employment application Officer’s Disciplinary History

Department’s Procedures or Operations Manual (Standard Operation Procedures, etc)

Dispatch Records to include any notes by the call taker

GPS Records

Computer communications between officers

BOLO’s (Be On the Look Out)

Vehicle records (installation of equipment, maintenance of equipment, etc)

Ticket Information Database

Gang Database

Location/Call History

Persons of Interest to Police Database

Field Contact Database

911 Database

Towing Report

Consent to Search Forms

Pursuit Report

Drug Recognition Evaluation Log Intoxilyzer 5000 records

Booking paperwork

Mugshot

Photographs

Worksheets or Lineups (who was working and vehicles assigned)

TAC § 159.103

Copy Citation

This document reflects all regulations in effect as of July 31, 2019

TX - Texas Administrative Code TITLE 1. ADMINISTRATION PART 7. STATE OFFICE OF ADMINISTRATIVE HEARINGS CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS SUBCHAPTER C. WITNESSES AND SUBPOENAS

§ 159.103. Issuance and Service of Subpoenas

(a) A party that issues or is granted a subpoena shall be responsible for having the subpoena served. The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witnesss attorney. A subpoena may also be served by accepted alternative methods established by a peace officers law enforcement agency.

(b) A subpoena must be served at least five days before the hearing.

(c) After a subpoena is served upon a witness, the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. Upon the subpoenaed witnesss appearance at the hearing, the party that issued the subpoena shall tender a witness fee check or money order in the amount of $ 10 to the witness. In addition, if the witness traveled more than 25 miles round-trip to the hearing from the witnesss office or residence, mileage reimbursement must also be tendered at the same time. The amount of mileage reimbursement will be that listed in the state mileage guide at http://fmx.cpa.state.tx.us/fm/travel /travelrates.php

(d) If the hearing is conducted telephonically, the party that issued the subpoena shall mail the witness fee check or money order to the witness within one day of the conclusion of the hearing unless the witness fails to appear at the hearing. Also within one day of the conclusion of the hearing, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(e) If a party that served a subpoena on a witness fails to appear at a hearing, that party shall mail the witness fee check or money order to the witness within one day from receipt of a default decision or any other order issued by the judge ordering payment of the fee and mileage reimbursement. Also within one day from receipt of the judges order, the party shall forward to SOAH a certification that the witness fee or money order

was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(f) If special equipment will be required in order to offer subpoenaed documents or tangible things, the party seeking their admission shall be required to supply the necessary equipment. The party requesting a subpoena duces tecum may be required to advance the reasonable costs of reproducing the documents or tangible things requested.

(g) Service upon opposing party.

(1) A party that issues a subpoena must serve the opposing party with a copy of the subpoena on the same date it is issued.

(2) A party that requests a subpoena from a SOAH judge must serve the opposing party with a copy of the request at the time it is filed with SOAH.

(3) When a subpoena has been served, and not less than three days prior to the hearing, a party that has served a subpoena must provide the opposing party with a copy of the return of service.

(4) If a party fails to serve a copy of a subpoena or a subpoena return on the opposing party, the subpoena may be rendered unenforceable by the judge.

(h) Continuing effect. A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or for protective order. If a hearing is rescheduled and a subpoena is extended, and unless the judge specifically directs otherwise, the party that requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date and serve a copy of the notice on the opposing party.

History

SOURCE:

The provisions of this § 159.103 adopted to be effective January 20, 2009, 34 TexReg 330; amended to be effective December 10, 2014, 39 TexReg 9515; amended to be effective January 1, 2017, 41 TexReg 9459

Research References & Practice Aids

CROSS-REFERENCES:

This Chapter cited in 1 TAC § 155.1, (relating to Purpose and Scope).

CODE

Content Type: Administrative Codes and Regulations

Terms: 1 tex. admin. code §159.103

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Date and Time: Aug 15, 2019 11:32:16 a.m. EDT

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37 TAC § 17.16

Copy Citation

This document reflects all regulations in effect as of July 31, 2019

TX - Texas Administrative Code TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART 1. TEXAS

DEPARTMENT OF PUBLIC SAFETY CHAPTER 17. ADMINISTRATIVE LICENSE

REVOCATION SUBCHAPTER A. ADMINISTRATIVE LICENSE REVOCATION

§ 17.16. Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed With the Department

(a) Where authorized, required, or permitted by statute or rule, a Request for Production, Maintenance and Repair records, and/or any tangible/documentary evidence required to be served by the defendant on the department must be served on the department by one of the following methods:

(1) by first-class mail, or by certified mail where required, addressed to Director of Hearings, ALR Program, Box 15327, Austin, Texas 78761-5327;

(2) by telephonic document transfer (fax) to (512) 424-7171, to the attention of the Director of Hearings, ALR Program;

(3) by hand delivery, during regular business hours, directly to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300.

(4) by courier receipted delivery through a commercial overnight express delivery service to the Director of Hearings, ALR Program, Driver License Division, Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752-0300.

(b) This section does not authorize or confer any discovery rights on a person or entity.

(c) Any request for the appearance of the "breath test operator and/or breath test technical supervisor" at the ALR hearing, pursuant to Texas Transportation Code, § 524.039(a), must be made by one of the methods set forth in paragraph (a) of this section and must be received by the department at least five days prior to the scheduled hearing date.

Stuart Kinard Advanced

The Menger Hotel 204 Alamo Plaza San Antonio, TX 78205

Topic:

Discovery and Pretrial Motions

Speaker: Gary Trichter 420 Heights Blvd. Houston, TX

(713)

Phone (713)

Fax gary@texasdwilaw.com Email www.texasdwilaw.com

DISCOVERYLEADSTO THEPATHOFSUCCESS

DISCOVERYAND PRETRIALMOTIONS

DISCOVERYMEANS

MOTIONTODISMISSPROSECUTIONBECAUSEOFA

PURPOSEFULDESTRUCTIONOFEXCULPATORY EVIDENCEDONEINBADFAITHBYARRESTING OFFICER

Forspecificexample,undersection11,ProgramObjectives, B,1itprovides“EnhancingHCSOtransparencytothe public”,andunderB6,itsays“providingaccuratevisualand audiodocumentationofevents,actions,conditions,and statementsmadeduringarrestsandcriticalincidents....”

Thesestatedobjectivesinnowaycouldbeachievedbythis deputywhenhepurposely,andinbadfaith,destroysthat evidence.

Inaddition,deputydestructionthwartedtheHCSO definitionatsectionIIIofthe“LawEnforcementActivity.” Thereitdescribesitas“Anyactivitythatadvancesalaw enforcementgoal,whetherconsensualorotherwise. Theseinclude,butarenotlimitedtotrafficstops…,callsfor service,…andarrests.”Thatsaid,DeputyM’sevidence destructionviolatedbothHCSOPolicy#618andthe Defendants’rightstodueprocess.

Section#618sectionIVProcedure,at4,commands that“Employeeswillnotedit,alter,erase …any…BWCrecordingwithoutproperauthorization.” Here,theDefendantproffersthattheHCSOhasno recordsofDeputyMhavinganyauthoritytofailto recordanyofthemattersnotedabove.(Exhibit7; PIArequestforauthorizationfromHCSO)(Exhibit8; HCSOstatingnoauthorizationexists)

A.EmployeesshallutilizetheBWCinthefollowing circumstances:

1.Employeesshallbeginrecordingpriortocontactwithpersons involvedinthefollowingeventsandcontinuerecordinguntilthe eventsareconcluded.

Temporarilypausingormutingoftherecordingisprohibited unlessotherwisestatedinsectionB-DeactivationofBody-Worn Camerabelow.Ifrecordingispausedormuted,thereasonwillbe notedbythedeputyeitherverballyontherecordingorina writtenreport.

…untilthedeputyreachesthedoorwayoftheJointProcessingCenter atwhichpointthedeputywillendtherecording.

Discoverymeanshavingthecouragetogo whereotherswouldnot!

MOTIONTOSUPPRESSALLDERIVATIVEBLOOD SEARCHWARRANTEVIDENCEBECAUSEOFA

DEFECTIVEAFFIANTOATH

Simplyprovidingastatementthatsaysswornand subscribedtoisnotadministeringanoath/ simplysigningitisnotanoath

Simplyhavingthejudgepointoutwhereyousign,andyou sign,isnotadministeringanoathortakingone

TexasCodeofCriminalProcedure18.01b

(b)Nosearchwarrantshallissueforanypurposeinthisstate unlesssufficientfactsarefirstpresentedtosatisfytheissuing magistratethatprobablecausedoesinfactexistforits issuance.Aswornaffidavitsettingforthsubstantialfacts establishingprobablecauseshallbefiledineveryinstancein whichasearchwarrantisrequested. inClayv.State,391S.W.3d94(Tex.Crim.App.2013),“beforea writtenstatementinsupportofasearchwarrantwillconstitutea ‘swornaffidavit,’

thenecessaryoathmustbeadministered‘before’a magistrateorotherqualifiedofficer.”Id.at99.Suchhas beentrue“forthebetterpartofahundredyears.”Id.

Implicitinthewords“mustbe administered”istherequirementthat someoneadministeranoathbeforethe writingbecomesavalid“sworn affidavit.”

Vaughnv.State,146Tex.Crim.586,177S.W.2d59(1943)

Vaughnv.State,146Tex.Crim.586,177S.W.2d59(1943)

MOTIONTOSUPPRESSEVIDENCEFROMASEARCHWARRANT BASEDUPONANAFFIDAVITFORSEARCHWARRANTWHICHIS DEFICIENTOFPROBABLECAUSE,BASEDONFALSEFACTSANDON STATEMENTSTHATWEREMADEINARECKLESSDISREGARDFOR THETRUTH

IssueIII(paragraph9)ofmotion

Comment1:TheAffiantsayshe“observedtheDefendantoperatingamotor vehicle”.ThebodycamvideoofDeputyMarquisdoesshowthattheDefendant wasinhistruckwhenthedeputiesarrived,however,themotorwasnoton,and thetruckwasstuckinaditch.Wreckerpersonnelweretheretryingtogetthe truckout.Accordingly,thestatementthattheDefendantwas“operatinga motorvehicle”wasfalseandarecklessdisregardforthetruth.Regarding recentuse,thevideoshowsthatatnotimedidthedeputytouchthehoodof thecartodeterminewarmththatmightindicatehowlongthevehiclehadbeen stuck.(EXHBIT6SeebodycamvideoofAffiantwhichis1:22:07,butAffiant leavesthesceneat51:30,onlythefirst51:30isofferedintoevidence.)

ISSUEIV(paragraph10)

Comment1:TheAffiantsayshenoticed“slurredspeech”.Anaudio recordingwasmadebytheAffiantoftheDefendant’sspeech.This recordingwasmadeonscenewhiletheDefendantwasinthe backseatofthepatrolcar.Thisrecordingisfreefromenvironmental soundsandothersoundssuchasenginesrunning,ofthepouring rainthatwasoccurringduringthepre-arrestsequenceofevents, andofthevoicesofothersspeaking.(EXHIBIT7SeeAffiantbody camvideo6:29to7:16)

Comment2:TheAffiantsayshenoticed“redbloodshoteyes”.This isarecklessdisregardforthetruthbecausetheAffiantknowsfrom hisNationalHighwayTrafficandSafetyAdministration(NHTSA) trainingthatredbloodshoteyescanbecausedbyfatigue,firsthand orsecondhandsmoke,allergies,contacts,orthatitmaybenormal forthatperson.Moreover,inanarticleentitled“TheDetectionof DWIatBACsBelow0.10”,datedSeptember12,1997,atAppendixE10(EXHIBIT8,titlepageandAppendixE-10),itsays:

“Finally,somecueswereeliminatedbecausetheymightbe indicatorsmoreofsocialclassthanofalcoholimpairment.For example,officersinformedusthataflushedorredfacemightbean indicationofahighBACinsomepeople.However,thecuealsoisa characteristicofagricultural,oilfield,andotheroutsidework. Similarly,bloodshoteyes,whileassociatedwithalcohol consumption,alsoisatraitofmanyshiftworkersandpeoplewho mustworkmorethanonejob,aswellasthoseafflictedby allergies.”

DISCOVRYRULE: LEAVENOROCKUNTURNED

MOTIONTOSUPPRESSSTATUTORYWARNINGREFUSAL BECAUSEOFDUEPROCESS/DUECOURSEOFLAW

VIOLATIONSBYTHEREQUESTINGOFFICERANDTOSUPPRESS ALLBLOODEVIDENCEBECAUSEOFAVIOLATIONOF

18.01(J)(2),TEX.CODECRIM.PRO.

Appellantalsoassertsthat,underwhatthe appellantcallstheCommingled[sic]Miranda DoctrineortheConfusionDoctrine,appellant wasmisledorconfusedbythepoliceofficer's Mirandawarning,whichisnotapplicabletoa breathtestrequest.

InMcCambridgeII,theCourtofCriminal Appealsnotedthatitsholdingdidnotimply “thataremedywillneverbeavailabletoa suspectwhoisconfusedwhenfaced withMirandawarningsandabreathtesting decisionwithoutthebenefitofrequested counsel.”712S.W.2dat507,n.18.

However,notestimonywaspresented atthesuppressionhearingthat appellantwasconfusedormisledby thepoliceofficers.

Jessupv.State,935S.W.2d508

(Tex.App.-Houston[14thDist.]1996)

Rowlandv.State,983S.W.2d58

(Tex.App.-Houston[1stDist.]1998)

MOTIONTOSUPPRESSSPECIMANTEST REFUSALEVIDENCEFORVIOLATIONOF

TexasCodeofCriminalProcedure

Art.38.23.EVIDENCENOTTOBEUSED.(a)Noevidenceobtainedbyanofficerorother personinviolationofanyprovisionsoftheConstitutionorlawsoftheStateofTexas,orof theConstitutionorlawsoftheUnitedStatesofAmerica,shallbeadmittedinevidence againsttheaccusedonthetrialofanycriminalcase.

Inanycasewherethelegalevidenceraisesanissuehereunder,thejuryshallbe instructedthatifitbelieves,orhasareasonabledoubt,thattheevidencewasobtainedin violationoftheprovisionsofthisArticle,thenandinsuchevent,thejuryshalldisregardany suchevidencesoobtained.

MOTIONTOSUPPRESSIMPLIEDCONSENT REFUSALBECAUSEITWASTIMELYRETRACTED ANDCONSENTWASGIVENFORTESTING

sensitive-that’swhywekeepradiosoff.”

MOTIONFORSANCTIONSFORFAILURE

TOPRODUCEMICHAELMORTONACT DISCOVERABLEEVIDENCE

DEFENDANT’SMOTIONTOSUPPRESSFISCHER STATEMENTSANDREDACTAUDIOPORTIONS FROMTHEVIDEOTAPE

Michael MortonAct Requestfor Ethanol

MichaelMortonActRequest forAudio/VideoElectronicRecordings

Re:StateofTexasv.JoseCuervo

/Requestforgeneral discoveryandinspectionofrecordsrelatedtotheaudio/videoelectronic recordingsconcerningbothoftheprovidingoftheDIC24StatutoryWarning andthepresentationandapplicationofthebloodsearchwarrantaffidavitin thiscaseandsupplementaldiscoveryrequest

TotheProsecutorAssignedtothisCase: ThisletterisourdiscoveryrequestundertheauthorityoftheMichael MortonActandArticle39.14TexasCodeofCriminalProcedure.Ourrequest forproductionisasfollows:

ReleaseofInformationRecordedbyBodyWornCamera

(a)Amemberofthepublicisrequiredtoprovidethefollowinginformationwhen submittingawrittenrequesttoalawenforcementagencyforinformationrecorded byabodyworncamera:

(1)thedateandapproximatetimeoftherecording;

(2)thespecificlocationwheretherecordingoccurred;and

(3)thenameofoneormorepersonsknowntobeasubjectoftherecording.

LongleyMotiontoSuppress

Transcript & MesserliALRTranscript

Stuart

Advanced

San Antonio,

Voir Dire

THETEXASSTATECAPITOL

“CHARGE”

INFLUENCE

INFLUENCE

FACTS

ISAPERSONGUILTYBECAUSE THEYWEREARRESTED?

DOES“ADMITTED”MEANPROVEN?

“WHILEOPERATING”

•WHATLEVELOFPROOFMUSTANOFFICERHAVETO WRITEATICKET?

•HOWMANYOFYOUHAVERECEIVEDATICKETWHERE YOUDISAGREEDWITHTHEOFFICER?

BEYONDAREASONABLEDOUBT

OR

CLEARANDCONVINCING?

WHICHISAHIGHERLEVELOFPROOF,

•WHATISTHEOFFICER'S“DECISIONPOINT”TO ARREST?

•WHATISAJUROR'S“DECISIONPOINT”TOVOTE GUILTY?

WHATDOES

“BEYONDAREASONABLEDOUBT”

MEANTOYOU?

REASONABLEDOUBTCANBERAISED

THREEWAYS.

WHATAREYOUSAYINGIFYOUVOTE

“NOTGUILTY”?

ISTHEREAVERDICTOF…

?

Texas Criminal Defense Lawyers Association

Annual Stuart Kinard Advanced DWI November 3 4, 2022

The Menger Hotel 204 Alamo Plaza San Antonio, TX 78205

Topic:

Cross of State’s Blood Expert

Speaker: Doug Murphy 902 Heights Blvd. Houston, TX 77008 (713) 229 8333 Phone (713) 583 0205 Fax doug@dougmurphylaw.com Email www.dougmurphylaw.com Website

Hill Meadow Dr :: Austin, Texas :: 512.478.2514

:: 512.469.9107

:: www.tcdla.com

of the State’s Blood Expert:

Blood Discovery for Gold

Doug Murphy

Doug Murphy Law Firm

902 Heights Blvd. Houston, Texas 77008 713-229-8333 doug@dougmurphylaw.com

Christopher M. McKinney

Doug Murphy Law Firm

902 Heights Blvd. Houston, Texas 77008 713-229-8333

chris@dougmurphylaw.com

Introduction

Some lawyers see the paperwork that comes from the government’s crime lab in a DWI blood case as a useless mountain of paper. It’s something that they don’t bother ever exploring in the first place or its simplyan excuse to have their client’s case continued another month or more while the lab procures the requested documents. To the untrained eye it’s a desolate waste, devoid of anything helpful to their client. It simply is what it is, further evidence of their client’s guilt, now in graph form. To those with the tools to dig deeper and examine closer, however, it is a gold mine. Some of these nuggets lie close to the surface but pay off immediately in their discovery. Others, however, require the lawyer to excavate a bit further or to hire the help of an expert miner to unearth the motherlode. In either case, to strike it rich and cash in on a not guilty verdict for your client, you’ll have to mine the government’s blood discovery for gold.

Following the Trail: Uniform Standards and Non-Uniform Procedures

To be relevant in the courtroom, a laboratory must be accredited. Accrediting is done by agencies like the American Society of Crime Laboratory Directors and ANSI National Accreditation Board (ANAB), who audit individual laboratories for conformity with field specific standards in toxicology as well as international standards like those contained in ISO/IEC 17025:2017. Accrediting bodies and the standards their members are supposed to follow were created by field experts with the objective of promoting confidence in the operation of laboratories and their reported results.

Specific to Texas, the Texas Forensic Science Commission (TFSC) was created to investigate allegations of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by

laboratory, accredited or not. The TFSC has also taken over the responsibility of oversight of the Crime Laboratory Accreditation Program from the Texas Department of Public Safety, who has their own crime laboratory system throughout the state. As part of this program, an accreditation process was created for crime laboratories and other entities that conduct forensic analyses for use in criminal proceedings. As part of its accreditation mandate, the Commission is responsible for establishing procedures, policies, and practices to improve the quality of forensic analyses conducted in Texas.

These accreditation standards, however, only provide a baseline for accreditation, rather than a one size fits all approach to blood alcohol analysis. Each lab is thus responsible for creating its own standard operating procedures that conform with basic international and toxicology specific standards. Since no two labs will have the same procedures in place for the accessioning of samples, the preparation of samples and equipment, and the processes for testing on their equipment, it is imperative that an attorney handling these DWI blood test cases obtain the relevant documentation to determine whether the processes conform with accreditation standards and the lab’s own standard operating procedures. Locating and identifying systemic or individual failures of the lab and its personnel in the form of corrective action reports and deviation records is key to dynamiting the state’s test result.

Staking Your Claim: Blood Discovery – What is it and Where Do You Get it?

In most cases, the state’s attorney is merely handing over a single-page, barebones laboratory report that identifies the lab’s name, the date of the report, your client’s name, the police agency that arrested your client, and your client’s blood alcohol result. But, like getting an estimate from a contractor or paying for a large meal, you want to see

how they obtained that result. That’s where blood discovery comes in. Blood discovery is the raw material from the government’s crime laboratory, and it is the bedrock of beating blood test cases. Without it, a lawyer is blindly cross examining the state’s blood analyst, or worse, blindly accepting their science as accurate and reliable.

Requesting and obtaining blood testing records allows a lawyer to dig deep into the qualifications and deficiencies of the government’s crime lab, its analysts, and its processes (or lack thereof). It prepares a lawyer to effectively contest the state’s evidence. The records are also specific to your client’s blood alcohol test result as the documents should be able to trace your client’s blood sample from the time it is accessioned or checked into the laboratory; documenting its condition, its volume, its packaging, and record every place it was stored and every hand that touched it. It’s an opportunity to view how the state was able to teach its blood alcohol testing machine what alcohol looks like and how to quantify it, and it is an opportunity to question that process through a thorough review of every piece of equipment used to measure every critical volume and review every chromatogram of the batch your client’s blood sample was tested on. Blood discovery allows a lawyer an opportunity to peel back, layer by layer, the state’s test result.

In some jurisdictions, getting records from the state’s laboratory is a streamlined process, as their prosecuting attorneys have previously agreed that the criminal defendant and his counsel are entitled to certain itemsfrom the lab and there is a standard blood discovery order. This standard order typically lays out around 31 items that the lab is to turn over. This list consists of general matters regarding the qualification of the lab and its employees, pre analytical matters such as the identity and source of the reference

materials used to prepare samples or testing machines, analytical matters such as calibration curves and chromatograms of the batch, and other reporting matters like chain of custody logs and a request for any notes contained within the file, among other items. Some jurisdictions have truncated this order and only provide for a handful of these items and others have fought tooth and nail against it in its entirety. The key to obtaining these records rests on the standard the state must meet to introduce this type of scientifically derived evidence in trial. It must be reliable evidence and a lawyer must be able to test the reliability of the evidence through cross examination rather than blindly accepting it as true. Under Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the state must show by clear and convincing evidence that (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question Each of the 31 items contained in the standard blood discovery order can be supported by a citation to one of these Kelly criteria. These items also affect the defendant’s ability to effectively to review or employ an expert to review the laboratory’s materials and identify areas of concern for the trial judge, who decides reliability. A trial court’s determination of reliability will also rest on the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, the qualifications of the experts, the existence of literature supporting or rejecting the underlying scientific theory and technique, the potential rate of error of the technique, the availability of other experts to test and evaluate the technique, the clarity with which the underlying scientific theory and technique can be explained to the court, and the experience and skill of the person(s) who applied the technique on the occasion in question.

Further reinforcing the earnestness of this production of these items is the state’s duty to provide evidence favorable to the Defendant under Brady v. Maryland, 373 U.S. 83 (1963). Without access to these records, the state, and its crime laboratory agent, would police themselves as it relates to the exculpatory nature of the documents and the standard line of “everything looked good” would win the day. But what about an in-camera review of the records by the trial judge for Brady determination? Not happening. Putting the onus on the court to review thousands of pages of technical records would require the trial judge to have the same specialized knowledge of an expert reviewer who has spent their entire career learning their field. The scientific method and the peer review process require that these materials be provided to the defense so that the state’s methods and data can be assessed for quality and reliability.

Many of the state’s crime laboratories accept these blood discovery orders electronically. Once received, there is an automated response from the lab and an estimate of when the order will be complied with. Compliance typically comes in the form of an email with a PDF file or a link to the individualized case reports and records. Some labs have uploaded non client specific records like accreditation certificates, standard operating procedures, corrective action reports, analyst credentials and training manuals to the lab’s website for manual download by the attorney. In the event of non compliance, some blood discovery orders contain language that results in the exclusion of items not timely produced and further prohibits testimony of the same.

Surveying the Plot: Pre-Analytical Assumptions that Undercut Reliability

Mining puns aside, headspace gas chromatography, the method by which the state’s laboratory analyzes your client’s blood for ethanol and subsequently quantifies it,

is said to be the “gold standard” because of its ease of automation, sensitivity, accuracy, and relative specificity. The accuracy and reliability of this method, however, relies on the quality or integrity of the sample analyzed. A flawlessly conducted forensic test of a blood sample is rendered meaningless if the sample was collected, identified, transported, or stored in a way that was compromised. Simply put, a sample that lacks integrity after leaving your client’s arm results in a reported alcohol concentration that is as valuable as fool’s gold.

The accuracy and reliability of the reported blood alcohol concentration rests on the assumption that everything that occurred before the specimen arrived at the lab, was done correctly. And while this paper concerns itself with what is contained within the blood discovery from the lab, equally as important is what is not contained, which is the information regarding the collection, identification, transportation, and storage of the sample prior to the lab’s accessioning. Any analyst worth their salt will roll over on each one of these processes, admitting that they are assuming that everything before the sample reached the lab was conducted properly and that if it was not, the reliability of the final reported result is suspect. And although this information is typically not personal knowledge to the analyst or contained within the documentation provided to the laboratory from the submitting agency, each of these areas are still ripe for cross examination. This cross does not concern itself with what actually happened, but rather, all of the steps in the process, compounded upon one another, that could affect the integrity of the sample prior to testing and ultimately, the final result. And the good news is, the state’s experts are trained on pre testing issues concerning quality assurance. How do we know that?

Their training criteria and the materials that they studied are contained within the blood discovery records. Eureka!

Collection of blood refers to the venipuncture process. Proper venipuncture for forensic purposes requires that it be performed by a qualified individual, using proper equipment, and proper technique as determined by consensus standards. Some states have laid out specific healthcare workers (physicians, registered professional nurses, etc.) as those permitted to perform venipuncture. Others, however, based upon the number of years spent in the field, the amount of training, or certifications, have been found to be qualified to perform venipuncture.

These qualified individuals must still perform the procedure correctly, meaning practicing proper antiseptic measures, among others. For samples that are to be tested forensically for ethanol, the qualified individual must cleanse the venipuncture site with an alcohol-free antiseptic such as betadine. Without an aseptic area, microorganisms from the subject’s skin, the collector’s hand, or elsewhere, could be picked up by the needle and carried into the blood tube, creating a possibility of contamination of the specimen. Similarly, the venipuncture site should be allowed to air dry after having been cleansed to avoid contamination from wiping. Some antiseptic cleansing pads also have expiration dates on the packaging, both of which are typically discarded by blood drawn personnel. Upon withdrawal of the subject’s blood, the vial should also be appropriately labeled with the subject’s name and identifying information, as required by consensus standards.

The final assumption that must be made by the state’s analyst is that the blood sample was properly stored and transported prior to its arrival at the lab. Due to its

organic nature, blood, especially when being tested for ethanol, must be stored under conditions that inhibit the formation of microbes that could affect a true measurement of your client’s blood alcohol concentration at the time the blood was drawn. If these precautions are not followed, your client’s blood alcohol result could be falsely elevated. For this to happen, three conditions must be present, (1) enough microorganisms that are capable of producing alcohol (like Candida albicans) must be present in the blood, (2) there must be an appropriate substrate or food such as the sugars contained in blood, and (3) the blood must be at an appropriate temperature for these microbes to thrive. Contamination of the sample from these microorganisms could occur before, during, or even after collection. Just as yeast converts sugars into alcohol during beer and wine making, microorganisms such as c. albicans convert sugars within the blood tube into “extra” ethanol. For the most part, this conversion can be slowed or even stopped if the blood tube contains an antimicrobial and the tube is refrigerated. But, without speaking to the officer getting some type of chain of custody with storage conditions from the submitting agency, the analyst must assume that the sample was not stored in a desk drawer, for days in an officer’s trunk in the middle of a Texas summer, or USPS mail facility for days or an un airconditioned mail truck without refrigeration of any kind

The state’s blood alcohol analyst is there for one reason to say that the machine worked and therefore the reported result is accurate. Rarely, if ever, do they review materials outside of the laboratory’s case file. The failure of the state’s expert witness to review all available pre analytical materials, even after having been prepped by the prosecutor prior to trial, is tantamount to tunnel vision. It ignores anything that may have affected their work product, similar to how police officers ignore and fail to mention in their

report any of your client’s actions that demonstrate their sobriety. Indeed, there may be a disconnect between your client’s driving and performance on the standardized field sobriety test, but it will not affect the state’s expert opining that their test is accurate because they never bothered to review the totality of the circumstances.

But not only is the expert there to testify that the blood test is accurate, but also to say that your client’s blood alcohol concentration was higher at the time he was stopped than when his blood was drawn by performing a calculation called retrograde extrapolation. Retrograde extrapolation is based on the understanding that when alcohol is consumed, it is absorbed into the blood stream during the drinking period and for some time after. During this time, a person’s blood alcohol concentration will rise and at some later time, based upon individual physical characteristics, the alcohol would be eliminated, causing the blood alcohol concentration to fall at a certain rate of elimination, which is also dependent upon a number of individual physical characteristics.

Like the pre-analytical matters just discussed, retrograde extrapolation requires the expert to make assumptions. To make this calculation, most experts will need the known blood alcohol concentration of your client, the time of the blood draw, the time of the stop by police, and the time of last drink. For this to work, however, the analyst must assume your client is undergoing elimination of ethanol at the time he was stopped. If you client is still in the absorption phase, his blood alcohol concentration at the time his blood was drawn could be the same or lower.

The problem with the elimination assumption is that clients are not always in the elimination phase when stopped. This is due to a potentially prolonged absorption period that varies from individual to individual. In fact, the elapsed time from end of alcohol

intake to peak alcohol concentration varies from 14 minutes to 138 minutes. Analysts typically assume that alcohol absorption is complete within 60 to 90 minutes. The analyst will also assume a typical elimination rate of between 0.010 and 0.025 g/100mL of ethanol per hour but will have to acknowledge that individual differences may show an elimination rate higher than 0.025.

Retrograde extrapolation, however, is not all it’s cracked up to be according to the leading scientists in the field. The teachings of Dr. Kurt Dubowski, who the analyst, based upon his training regimen, will have to admit is an authority in the field of toxicology, stated that retrograde extrapolation is “always of uncertain validity” and “forensically unacceptable.” Dubowski acknowledges that the request to perform the calculation is often made, but that the practice itself is “dubious.” Indeed, it requires a “great deal of guesswork and speculation,” according to A.W. Jones, another authority in the field.

Scratching the Surface: Easy Paydays on Basic Observations

The laboratory begins the record keeping process by accessioning the blood sample. Accessioning is the term for recording the addition of a new item. When the lab accessions a blood sample, it should be giving the item a unique identifier, identifying the person who accessioned the item, and documenting the relevant information and characteristics of the package; how and when the lab received the sample, how was the sample packaged, how many sub-items are contained within the packaging, whether the sample’s collector information is present, whether the sample was sealed, the volume of the sample, the sample’s tube color, the sample’s condition, and any discrepancies between what the lab was told it was getting and what was actually provided. Accessioning documentation typically includes the police agency’s submission form, any

delivery information if the samples were transported via USPS, UPS, or FedEx, an accessioning form, and photographs of the items and their conditions upon arrival at the laboratory. The accreditation standards for the accessioning process, however, provide only barebone requirements and vary widely from lab to lab.

Blood samples reach the laboratory in two ways: an in-person transfer or delivery to the lab by mail or similar means. In-person transfers are typically more immediate, but not always the case. Delivery via mail, however, can result in delays for the sample to reach the lab. The area of cross examination for either method of delivery should focus on the passage of time from collection of the sample to receipt of the sample at the lab.

Longer delays create more unknowns related to the chain of custody and the storage condition of the sample.

Submissions to the laboratory should also exhibit proper seals. A proper seal is one that prevents loss, cross-transfer, or contamination while ensuring that attempted entry into the container is detectable. A compliant seal may include a heat seal, a tape seal, or a lock with the initials of the person creating the seal being placed on the seal or across the seal onto the container when possible.

Within the evidence packaging should be the samples of blood that were collected in appropriate containers. The condition that the lab receives these tubes is, or at least should be, documented by the laboratory upon receiving the evidence. Again, some laboratories photograph the blood vials upon accessioning in addition to their written documentation. Important considerations involving the condition of the tubes are the type or color of tube used, whether the tube is sealed, the volume of the blood, and the condition of the blood. For blood, the name of the subject from whom the specimens

were collected should appear on each label together with other appropriate identification. Where provided, the time and date registered for each specimen should be initialed or signed by a responsible person who performed or witnesses the collection Only in very few instances will a laboratory reject a submission. Most of the time, their role is to simply document what is being received without much regard as to how it may affect the result.

While the laboratory will accept any type of tube for testing, collection of blood for forensic determination of ethanol typically involves the use of evacuated gray top tubes. Blood tubes uses are categorized by the color of the tube’s stopper and that color correlates with the tube’s additive. Additives serve specific functions in the preservation of a sample or in the type of test to be run on the sample. Gray top tubes contain sodium fluoride and potassium oxalate additives. Sodium fluoride acts as a preservative while potassium oxalate serves as an anticoagulant. Use of other colors of blood tubes for ethanol testing may result in blood samples that may not be microbial or clot free. To be part of a reliable testing process, these gray top tube additives must be first, present, second, present in sufficient quantities, and third, be used in conjunction with the manufacturer’s recommended volume of sample. After the blood is collected in a tube containing additives, it must then be immediately inverted a minimum of eight times to ensure proper mixing. Failure to do this action at all ignores the manufacturer recommendations and calls into question whether the sample was adequately preserved. Failure to do this action properly calls into question the quality of the sample due to a potential for hemolysis.

Assuming that these additives are always present in every tube ignores human and mechanical error. Indeed in 2019, one of the leading suppliers of gray top tubes,

Becton Dickinson (BD), issued a recall regarding some of their Vacutainer® Fluoride Tubes because the tubes may not have contained an anti clotting additive that would preserve the blood samples for testing and retesting. As a matter of fact, testing a clotted sample could render in an inaccurate blood alcohol result. To test a clotted sample, it would first need to be homogenized, a process that follows an entirely new method that requires its own method validation outside of the typical whole blood testing process. Again, the state’s analyst would have to assume that the investigating officer or blood draw personnel inspected the tube for the presence of additives prior to collecting the sample.

Blood sample quality can also be compromised and lead to inaccurate results if the tube is underfilled. Gray top tubes, like those from BD, call for a fill volume of 10 mL  0.7 ml. Police agency blood collection procedures sometimes call for even less volume than what the manufacturer recommends.

When connected to the blood draw needle and housing, evacuated tubes fill with blood automatically because there is a negative pressure or vacuum. The vacuum is held by the tube’s rubber stopper and the amount of the tube’s “suck” is appropriate for the manufacturer’s recommended sample volume for the tube. The recommended sample volume is proportional to the amount of additive contained in the tube. Therefore, an underfilled tube with an appropriate amount of additive could produce inaccurate results.

Vials lacking the manufacturer’s recommended sample volumes could also be indicative of an issue with the integrity of the tube’s stopper. The stopper forms a seal, keeping the full strength of vacuum contained within the tube and consequently, everything else out of the tube. Therefore, a tube that has lost all or part of its vacuum

will fail to properly fill with blood and fail to adequately ensure the quality of the sample. Improper storage, opening of the tube, or incorrect blood draw methods all could be causes of a faulty stopper. Blood sample colors other than red would also indicate a microbial issue stemming from a stopper issue or even an improper draw. The information contained on the exterior of the blood tube is equally as important as the sample contained within it. This information consists of the blood vial’s lot number, and its expiration date. The blood vial’s lot number is important in tracking the tubes from the manufacturing process and determining which tubes, like the ones involved in the 2019 BD issue, are affected by a recall. The expiration date is the manufacturer’s guarantee on the reliability of the additives and the tube’s vacuum, with the assumption that the tubes were handled and stored correctly. Some laboratories fail to document these critical pieces of information. In some cases, a cross-examination regarding a lack of documentation can be equally powerful as a cross-examination concerning incorrect documentation.

Digging Deep: Finding Gold in the Mountain of Discovery

At the heart of scientific evidence, as the Kelly case recognized, is the formation and following of recognized procedures. The real nitty gritty of blood discovery review is determining what standing operating procedures are in place, whether those methods are validated, whether the procedures meet basic accreditation standards, and whether the lab’s standard operating procedures were followed in this case. Inquiries into each of these areas has the potential to highlight deficiencies or failures of the lab that ultimately affect the reliability of your client’s reported result.

Forensic crime laboratories analyze blood for the presence of and quantification of alcohol by headspace gas chromatography. This method is based on Henry’s Law, which states that at a given temperature, the amount of a dissolved gas in a liquid is proportional to the pressure above the liquid. Applied to blood alcohol analysis, this means that at a constant temperature, the amount of ethanol in the air or headspace of a vial is directly related to or proportional to the amount of ethanol contained within the blood.

Laboratories are free to establish their own procedures to determine alcohol quantities so long as they adhere to the minimal thresholds established by the accreditation community, i.e., ANSI/ASB Standard 036, which establishes the minimum standard of precures for method validation to satisfy ISO 17025. Validation is the process of selecting suitable methods and developing standard operating procedures to ensure that any unknown samples that the laboratory receives for testing will return accurate results. The validation parameters must cover screening methods, qualitative confirmation/identification methods, or quantitative methods. This means that the laboratory’s procedures must be able to unambiguously identify and quantify alcohol.

Because of this, headspace gas chromatography method is the most widely used method in alcohol identification and quantification.

The headspace method involves teaching the GC machine to recognize ethanol levels by using calibrators. To ensure that the machine can accurately identify and quantify different ethanol levels, commercially available controls are used to check the machine’s work. Once the machine knows that “something” looks like, it also needs to be checked with blanks to ensure that it can recognize “nothing.” Running blanks also allows for clear distinction between two substances that would have otherwise been

tested back to back. These substances with known concentrations will have certificates of analysis, making them certified reference materials and NIST (National Institute of Standards and Technology) traceable. Recognizing “something” from “nothing” is only part of the process, however. The machine must also be checked to ensure that it can separate all the “somethings” that could be in a sample through the use of reference standard mixes.

Gas chromatography for ethanol determination involves extracting blood from the blood tube and transferring it into a headspace vial along with an internal standard. The vial is then capped with a magnetic cap and closed tightly with a crimper. The vial is loaded into an autosampler on the testing machine. The machine heats the sample to a constant temperature and extracts gas from the headspace above the liquid sample (that’s right, the machine never actually tests your client’s blood!). The autosampler’s syringe then injects the gas sample into the GC machine’s column, which acts like a 30meter-long racetrack for the mixture that was injected. The mixture is delivered to the end of the column by helium gas. At the end of the column is a flame and a detector. If the processes and machine are working correctly, the different substances that travel through the column will separate and will exit the column at different times. Their exit is recorded by the detector as the substances reach the flame at the end of the column. The time it takes for the different substances to exit or elute from the column is then recorded and sent to the attached computer for analysis.

A blood “run” consists of conducting this process for the calibrators, the standard mixes, blanks, your client’s blood, and verifying mixtures. If done correctly, the machine transfers data to a computer that converts the information into a graph that contains

several distinct peaks of differing heights for the different substances that were sent through the machine. Where the peaks fall on the x axis (bottom line) of the graph and how big the peaks are (y axis, up and down line) correlate to the type of substance being looked for and how much of the substance there is. Based upon where the peak is on the x-axis identifies the substance being tested as different substances will exit the column at different times. Failure of the machine to be able to identify and quantify a substance or differentiate between multiple substances is a failure of the process due to poorly developed methods, faulty equipment, or deficient lab practices.

Validation is required when there is a new analytical method, modifications of an established analytical method to improve its performance or to extend its use beyond that for which it was originally validated, to demonstrate equivalence between established and new methods or instruments, and when existing methods do not meet ISO requirements. Revalidation must also happen when there are changes to analytical conditions, instrumentation, sample processing, and data software. Therefore it is imperative to request and obtain all documentation regarding methods and equipment.

Any time one of these events occurs, validation must also occur. A laboratory’s failure to validate and document its methods for testing blood alcohol undercuts the reliability of the test performed and reported. Similarly, a laboratory’s failure to follow its own validated procedures produces test results that are scientifically unacceptable.

Indeed, documentation must be completed regarding every step in the blood alcohol testing process. The state’s crime laboratory is required to keep records in accordance with the rules of their accrediting bodies so that every result produced can be traced back to see how the lab generated it. Indeed, original observations, data, and

calculations must be recorded at the time they are made and must be identifiable with a specific task according to ISO 17025. Further, any amendments to these technical records must be able to be tracked to the original observation and both the original and the amendment must be retained. Printed tables of measurements are the tip off that the lab failed to comply with this recording standard. Similarly, handwritten notes on a printed page can also highlight potential testing issues.

Additionally, the documentation of lot numbers in the use of calibrators, standards or reference materials, and verifiers is also of critical importance as it relates to traceability. A reviewof this documentation should be able to uncover where the materials came from, when they were opened or used, and identify any expiration dates. Traceability also applies to recording the exact equipment used to store, prepare, or test samples, including any refrigerator, any thermometer used to monitor storage temperature, and any diluter or similar equipment used to measure critical volumes.

Records relating to these items can identify any persistent problems with a single piece of equipment and help verify whether the equipment was calibrated at the time it was used. Failure to record or timely record a technical record are deficiencies under the most barebone of accreditation and field specific standards.

Reliable science should be transparent and subject to peer review. Laboratories who fail to abide by the most basic scientific principles should be identified and their results should not be admitted in driving while intoxicated cases against our clients. Some of these deficiencies may not be as readily observable as others and require the use of an expert such as a certified quality auditor (CQA) or toxicologist to comb through the records to uncover underlying validation method errors, reference material issues,

documentation errors, or other tedious details that may be too buried to be unearthed efficiently by a lawyer.

Conclusion

Blood discovery plays a critical role in the defense of a driving while intoxicated blood case and should not be ignored. Having the testing records and how the laboratory came up with the result is the only way to know if the lab did its job properly and is presenting a reliable result to a jury. So, when it comes to your client’s blood alcohol result, there’s more than meets the eye. The only way you’ll know if there’s gold is to start digging.

Stuart Kinard Advanced

San Antonio,

Significant Recent Decisions & Emerging (Disturbing?) Trends in

&

Law

Significant Recent Decisions & Emerging (Disturbing?) Trends

In DWI & ALR Law

LAWRENCE G. BOYD 4303 N. Central Expy. Dallas, Texas 75205

TEL.No. (214) 691-5630 FAX No. (214) 696-0867

;-Mail: lawrencegboyd@hotmail.corn WEB SITE: "DWIDALLAS . COM"

Sponsored by Texas Criminal Defense Lawyers Association (TCDLA)

2022 STU KINARD ADVANCED DWI DEFENSE SEMINAR November 4, 2022

2022 STU KINARD ADVANCED DWI DEFENSE SEMINAR

Lawrence G. Boyd November 4, 2022

I. Issues Unicrue to ALR Hearincrs:

A. The Mileage Rate for Reinibursement to a Subpoenaed Witness Changed Effective January 1, 2022: Effective on January 1, 2022, the Travel Reimbursement Rate for automobile mileage by state employees is fifty-eight and one-half (58.5) cents per mile (Jan. 1, 2022 thru December 31, 2022). Use this rate when computing the mileage reimbursement for an officer who attends your client's inperson ALR hearing as directed by your subpoena under SOAH Rule §159.103©. {Comment: That is, if we ever go back to having in-person hearings.}

11. Substantive Issues that May Apply to Both ALR Hearings & DWI Cases:

A. Reasonable Suspicion/"Terzy" Stops/Dealinc? w/the Overruling of the "As Consistent w/Innocent Behavior" ConsJ:ruct/Reasonable Suspicion May be Based on CQn^letely Innocent Facts/"Indisputable Visual Evidence":

{Backqround/Conuaent: The last year has seen further erosion of the protections afforded by the Fourth Amendment to a point that it hardly exists in an automobile. The "probable cause" requirement for a stop based on a traffic violation has been essentially eliminated by the courts, being almostcompletely supplanted by the reasonable suspicion test. The State doesn't have to prove that an offense actually occurred. If no cognizable offense even exists for the behavior observed by the officer, the State will certainly argue that the officer made a "reasonable mistake of law"under Helen. But, the most dangerous trend of all is the latest tendency to find that reasonable suspicion arose fromtotally innocent behavior in the opinion of an officer with minimal training and experience. The only remaining shoe todrop could possibly be the adoption of a "Hypotheticallybetter-trained expert DWI/SFST officer test."}

I recently stumbled upon a case that I had never heard of when I was trying to find the laws pertaining to U-turns. In

Wall v. State, the Fort Worth Court of Appeals upheld a trial court's denial of a motion to suppress based on an argument that had been rejected by the trial court, that the "AO" had reasonable suspicion that the defendant was DWI.Wall v. State, No. 02-13-00552-CR, 2015 Tex. App. LEXIS 4678, at *8 (Tex. App.-Fort Worth May 7, 2015, pet. ref'd)(not designated for publication) .

First, Fort Worth correctly observed that an officer has probable cause to stop and arrest a driver if he observes the driver commit a traffic offense. In Wall, the "AO" saw Ms. Wall stopped at a flashing yellow light. Ms. Wall remained stopped for several seconds, and cross-traffic, which had a flashing red light, drove warily through the intersection when Ms. Wall did not. After a few seconds, Ms. Wall drove through the intersection, and the "AO" followedher. Id.

As Ms. Wall approached another intersection with a flashing yellow light, she braked hard but late, coming to an almost complete stop in the middle of the intersection. Before her vehicle completely stopped, Ms. Wall accelerated through the intersection, changed lanes, and made a U-turn. Based on Ms. Wall's curious driving behavior, the "A0// initiated a traffic stop and then detected the "classic symptoms ofDWI." Id.

Fort Worth noted that, concerning questions of historical fact, even when a video tape of the stop exists, the trial court's factual determinations are entitled to almost total deference so long as they are supported by the record. Evenso. Fort Worth held that the video from the "AO's" dash cam indisputably negated the trial court's findings that Ms. Wall had committed the traffic offenses of disregarding a traffic control device and making an overly wide turn over the white line. Although it was unequivocally true that Ms.Wall stopped at the flashing yellow light when she didn't have to, this did not constitute an offense. The transportation code simply states that a driver facing aflashing yellow light "may" proceed with caution. See Trans.Code §544.008(b). Nothing in the provision proscribes stopping or excessively decelerating at a flashing yellowlight. The term "may" indicates an element of discretionrather than compulsion, which is better communicated with words like "shall." Wall, supra.

Looking next to whether Ms, Wall's U-turn constituted atraffic offense, the video did not support the trial court's finding that it did. Although Ms. Wall traversed the turninglane's white line while entering the turning lane, she did not re-cross it prior to or during her U-turn. Wall made the U-turn at a proper opening in the barrier and not at the

crest of a hill or near a curve. See, Trans. Code §§ 545.063(b)(1); 545.102. No cars were near, and there was noevidence that the turn was done in an unsafe manner. See, Trans. Code Ann. § 545.103. Thus, even assuming that Ms.Wall re-crossed the right line or prolonged her transitionacross it, there was no evidence that the movement was unsafe, and thus it was not a violation. See, Trans. Code §§545.060(a); §545.103 (requiring all turns and movements bedone safely). Other than the video, there was no evidence ofMs. Wall's U-turn, and the "AO" did not mention, either in his affidavit or in his testimony, that Ms. Wall's U-turnwas improperly performed. Thus, no evidence existed in therecord that Ms. Wall had violated any of the statutes thatmight be said to govern a U-turn. Wall v. State, 2015 Tex.App. LEXIS 4678, at *11-12.

At the suppression hearing, the "AO" had testified that Ms.Wall's reaction to the two lights had made him suspect thatshe was intoxicated. He explained that stopping at aflashing yellow light is not normal, even if it is not atraffic violation to do so. From his training, the "AO" knewthat intoxicated drivers often fail to follow traffic signals, and he considered a driver's inability to respondproperly to a flashing yellow light to be a big indicator ofintoxication. In fact, the "AO" had made prior DWI stops ata flashing yellow light "at that exact area" of the roadthat Ms. Wall was traveling. Given Ms. Wall's drivingbehavior and the fact that it was around 2:00 a.m. on a weekend day in a neighborhood with many bars, the "A0//suspected that Ms. Wall was intoxicated. Id.

Fort Worth held that Ms. Wall's prolonged stop at oneflashing-yellow-light intersection and her delayedapplication of her brakes and quick, almost complete stop inthe middle of the next flashing-yellow-light intersectionwere contextualized by the "A0's// testimony that he observedMs. Wall driving at 2:00 a.m. on a weekend in a neighborhoodwith bars. According to the "AO", intoxicated drivers areoften confused by flashing traffic control signals, and henoted that he had made prior DWI stops at a flashing yellowlight in "that exact area" of the road that Ms. Wall wastraveling. The "AO" thus articulated something more than an"inchoate and unparticularized suspicion or 'hunch.'"Considering the totality of the circumstances, the "AO"possessed "some minimal level of objective justification formaking the stop" because he pointed to specific andarticulable facts-Ms. Wall's peculiar driving through twoflashing-yellow-light intersections, the fact thatintoxicated drivers are often confused by flashing-lightintersections, the fact that the "A0// had made other DWI arrests in this very location at the flashing-lightintersections, the fact that Ms. Wall was driving at 2:00

a.m. on a weekend in a location near bars—which, taken together with rational inferences from those facts, providedreasonable suspicion that Wall was engaged in criminalactivity, DWI. Wall v. State, 2015 Tex. App. LEXIS 4678, at*13-14.

{Coinment: Other than Fort Worth's decision not to publishWall, I can't find anything not to like about it. When theycouldn't find a proper offense in the Transportation Codethat would have made this conduct into an offense, at leastthey didn)'t resort to a "Helen" attempt to fabricate some "mistake of law" contrivance. Although they acknowledged thecurrent trend of appellate courts backing away from the ideathat "indisputable visual evidence" of a video should routinely be employed by appellate courts to undermine the general rule of "total deference" to a trial court's findings of fact, they held that the video in this case didindisputably refute the trial court's findings. Although I would have preferred more discussion about the "AO's" training and experience that would allow him to opine thatthe defendant's driving was characteristic of DWI, it didn't seem that the defense attorney ever called that into question. With those things in mind, I conclude that Wallwas a pretty good find, particularly due to its discussionof the laws pertaining to U-turns.}

Martlnez is a good case to consider along with Wall in itsdiscussion of the current status of the "indisputable visual evidence (video footage)" corollary to the general rule of"total deference" to the trial court's findings of fact when reviewing a trial court's ruling on a motion to suppress. As in Chambers, discussed infra, even judges may disagree over what exactly is shown by a certain video. Does a video haveto definitively show that something did, in fact happen? What if the video does not show clearly that something didnot happen? Martinez v. State, No. 01-20-00760-CR, 2022 Tex.App. LEXIS 4010, at *9 (Tex. App.-Houston [1st Dist.] June14, 2022, pet. filed).

Martinez starts with a supposed "bright-line" type of rulingthat, when an officer sees a driver strike the curb on a public roadway more than once in a short distance or time without apparent explanation, the officer may reasonablysuspect the driver could be intoxicated. But, is that reallya rule? Of course, certain driving behaviors are sound indicia of drunk driving. The exhibition of these behaviorsgives peace officers an objectively reasonable basis for stopping a driver to investigate the possibility that the driver is intoxicated even though these behaviors mightresult from more innocent causes, like inadvertence or distraction. Id.

In holding that the "AO" had reasonable suspicion to stopMr. Martinez, the 1st Court of Appeals emphasized that theydid not rely on Mr. Martinez's striking of the curb in avacuum. A driver's contact with a curb, standing alone,might not be enough to give rise to reasonable suspicion ofintoxication in the absence of other suspect circumstances.In this case, Mr. Martinez struck the curb twice within a short distance and time. Repeated erratic driving behavioris inherently more suspect than a single lapse. Id.

Moreover, several additional facts played a role in the Court's analysis. The "AO", who was familiar with the road,testified that nothing suggested Mr. Martinez had good causeto hit the curb. The road was dry, clearly marked, andunobstructed. Furthermore, the "AO" was trained in DWI enforcement, and had put this training to use in the fieldas an officer assigned exclusively to the patrol division'snight shift. He stated that erratic driving late at night orin the early hours of the morning in particular—he stoppedMr. Martinez around 1:40 a.m.—suggested the possibility ofintoxication. Under the totality of these circumstances, apeace officer could have reasonably concluded, as the "AO"did, that Mr. Martinez might be intoxicated. Id.

But, the question remained as to whether Mr. Martinez everhit the curb when the video did not show it happening. Mr.Martinez's appellate attorney argued that when, as here,indisputable visual evidence refutes the basis for a trial court's factual finding, the appellate court owes nodeference to the trial court. Id.

In Martinez, the 1st Court of Appeals held that the "A0's//dashcam footage was not the kind of indisputable visualevidence that would allow them to disregard the "AO's"testimony that he saw Mr. Martinez strike the curb twice.The 1st Court admitted that the footage did not show that Mr. Martinez actually did strike the curb. But, they held,the footage also did not refute that he did so. From theCourt's independent review of the footage, they concludedthat it was not discernible whether Mr. Martinez struck the curb. The footage shed no light on this matter. When, ashere, a recording neither corroborates nor contradicts awitness's testimony as to what he saw, the footage does notconstitute indisputable visual evidence on the subject. Id.

//

The "A0// indicated on the stand that the poor quality of his dashcam footage explained ostensible discrepancies betweenit and his testimony. The 1st Court's independent review ofthe footage showed that the distance between the "AO's"squad car and Mr. Martinez's vehicle, limited nighttimevisibility, and glare from the headlights of oncomingtraffic contributed to the footage's less than definitive

character. Id.

After reviewing the video evidence, an appellate court must defer to the trial court's factual findings as to what a given witness actually saw or heard unless the recordingconclusively refutes the trial court's finding. Id.

B. Probable Cause Provided by Direct Observation of Traffic Of fense:

1. Weavincr/Failure to Maintain a Single Lane^E' Traffic:

A Gliinmer of Hope?: Just when I thought that all was lost, rebel forces gathered to make a last-ditch stand to preserve the "Tarvln/Hernandez" line of authority that requires some element of "iinsafety" to be present in astop for "weaving." Daniel v. State, 641 S.W.3d 486 (Tex. App.—Austin 2021, no pet. hist.). It was a close one due to one Justice dissenting, who would have upheld the stop under Helen.

Daniel involved an intersection with a two left-turn lane set-up. Daniel's vehicle was in the outer left turn lane. As Daniel's vehicle made the turn, approximately half of his vehicle crossed the dotted white line separating theouter left turn lane from the inner left turn lane, before returning to the outer left turn lane. After completing the turn, Daniel's vehicle crossed the dotted white line dividing the outer and inner westbound lanes on the street he turned onto, on two separate occasionsbefore the "A0// initiated the traffic stop. The "AO" acknowledged that the only reason he stopped Daniel's vehicle was for failure to maintain a single lane of traffic. The "AO" also acknowledged that at the times he observed Daniel's vehicle cross the line, there were no other cars near his vehicle. Daniel v. State, supra.

The -State argued that the reasoning of Judge Yeary'splurality opinion in Leming was persuasive, if not binding on the Austin Court of Appeals, and that they should overrule their previous opinion in Hernandez. The Austin Court of Appeals panel majority ruled that itwould not follow the Lemlng plurality opinion because Hernandez had been decided correctly. Id.

In Daniel, Austin stressed that the plain language of Trans. Code §545.060(a) creates one offense that has two elements. §545.060(a) requires that "[a]n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane

unless that movement can be made safely." Trans. Code§545.060(a). The two clauses are joined by theconjunctive "and," which means that to violate §545.060(a), a motorist must both fail to drive as nearlyas practical entirely within a single lane and fail tomake that movement safely. If the legislature hadintended a different result, it could have used the disjunctive "or" to separate the clauses, as it did in§545.060(b). Id.

Finally, Austin wrote that the Court of Criminal Appeals had itself observed that, "driving is an exercise incontrolled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways." State v. Cortez,543 S.W.3d 198, 206 (Tex. Crim. App. 2018). To allow an officer to stop a motorist for momentarily driftingoutside their lane of traffic, when there is no evidence that it was unsafe to do so, would seem to be an absurd result that the legislature could not have possiblyintended. Hernandez's construction of §545.060(a) avoids that result. Id.

Austin ruled that it was bound by its own previous panel opinion in Hernandez, absent an intervening change in the law by the Legislature, or a higher court, or by decisionof the Austin Court of Appeals court sitting en bane.This is especially true in cases involving statutoryconstruction, where the doctrine of stare decisls has its greatest force because the Legislature can rectify acourt's mistake, and if the Legislature does not do so, there is little reason for the court to reconsider whether its decision was correct. Id.

Austin further concluded that it would not be objectivelyreasonable for an officer in its jurisdiction to bemistaken about the requirements of §545.060 (a), asannounced by the Court over two decades ago in Hernandez,when the Court has never stopped following Hernandez or cast any doubt on its continuing validity, and there isno binding precedent from the Court of Criminal Appeals overruling Hernandez. To conclude otherwise wouldeffectively eviscerate Hernandez and allow officers tostop motorists for failing to maintain a single lane under any circumstances, even when there is no evidencethat it was unsafe to do so. Austin has long held that a violation of §545.060(a) requires movement from one'slane in a manner that is unsafe, and it is not objectively reasonable for an officer in Austin'sjurisdiction to believe otherwise. Id.

Just this very year of 2022, the Houston 1st Court ofAppeals finally had the opportunity to decide whether itwould line up with its other sister Houston Court ofAppeals, the 14th, in deciding not to follow Lemlng, asits sister Court of Appeals had already done in Bernard.See, State v. Bernard, 503 S.W.3d 685, 690-91 (Tex. App.—Houston [14th Dist.j 2016), pet. granted, judgmentvacated on other grounds, 512 S.W.3d 351 (Tex. Crim. App.2017). The 1st Court of Appeals decided not to follow theplurality opinion in Lemlng- in its own Munoz case. Munozv. State, 649 S.W.3d 813 (Tex. App.-Houston [1st Dist.]2022, no pet. hist.) .

The sparse facts in Munoz bear some recitation. The road had two northbound lanes, two southbound lanes, and a shared center turn lane. There was no curb or median between any of the lanes. Traffic was moderate, with several cars on the road.

Mr. Munoz was driving in the far-right lane, travelingnorthbound. Traffic was moderate, with several cars on the road. The "AO" first noticed Mr. Munoz's truck because it was weaving within its lane. He testified that the truck was "pretty much staying within the line but bouncing from the centerline to the outside line." The"AO" found this unusual.

Before activating his lights, the "A0// observed Mr. Munoz attempt to make a lane change. Instead of moving from one northbound lane to the other, Mr. Munoz straddled the two northbound lanes. Mr. Munoz's driver side tires were in one northbound lane while his passenger side tires werein the other northbound lane. He observed Mr. Munoz straddling the lane line for two or three seconds. The"AO" testified that this was a traffic violation. The State did not argue that this behavior caused the "AO" todevelop reasonable suspicion of DWI, but only reasonablesuspicion of failing to drive in a single lane oftraffic. Id.

The 1st Court began by noting that, since Lemlng, "theinterpretation of §545.060 is not yet settled," listingseveral appellate courts that have followed the Lemlng plurality and a few courts that have not. Courts thathave followed Leming have held that it is a violation of §545.060 to either fail to maintain the lane or to switch lanes unsafely, [citations omitted]. Id.

Looking at the actual language of the statute, the 1stCourt held that the plain language of §545.060 (a) compelsthe conclusion that it creates a single offense. § 545.060 (a) requires that "[a]n operator on a roadway

divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirelywithin a single lane; and (2) may not move from the lane unless that movement can be made safely." Trans. Code §545.060(a). The two clauses are joined by the conjunctive"and," which means that to violate the section, a motorist must both fail to drive as nearly as practicalwithin a single lane and fail to make that movement safely. If the Legislature had intended a differentresult, it could have used the disjunctive "or" to separate the clauses. Id.

In evaluating the facts of the case in Munoz for evidenceof "unsafety," the 1st Court observed that the dash camera recording showed Mr. Munoz's erratic driving. Mr.Munoz signaled that he would be changing lanes, but while he drifted toward one side of his lane, he did not change lanes. He then signaled that he would turn the other direction, but instead, he drove straight through an intersection while the turn signal was still activated.Id.

The "AO" testified that there was moderate traffic that night, and the video shows several cars traveling in theopposite direction of Mr. Munoz. The "AO" testified that Mr. Munoz's erratic driving prevented him from passingMr. Munoz. He testified that even if Mr. Munoz did not hit another car, Mr. Munoz's driving was unsafe becausehe could have veered off the road. The "AO" also stated that Mr. Munoz was "doing more than just weaving withinthe lane." Id. The 1st Court held that this gave the "AO" the minimal level of justification required for aninvestigative detention. This provoked a dissent.

The dissenting justice agreed that §545.060 requires botha showing that a driver failed to maintain a lane andthat the driver did so unsafely, but she did not agree that the State had met its burden to show reasonable suspicion here. The "AO" did not testify that there wastraffic near Mr. Munoz or that his driving was otherwiseunsafe. Instead, the "AO" justified the traffic stop by positing that Mr. Munoz's driving might cause a problemin the future. Id, dissenting opinion.

The reason the "AO" said Mr. Munoz's driving was unsafe was because he might have, in the future, driven off theroad or hit something. The "AO" did not provide specific,articulable facts that, when combined with rational inferences from those facts, would objectively show thatMr. Munoz moved unsafely between lanes. The "AO" did nottestify that anyone was within a lane of Mr. Munoz. He

did not testify that anyone had to use evasive maneuversto avoid Munoz's truck. Id, dissenting opinion.

This.is not a case that turns on officer credibility. Itis not a case in which the officer says the driver lefthis lane and the driver denies it. There is indisputablevideo evidence of Mr. Munoz's driving. What thisofficer's testimony added—and what the majorityincorrectly defers to in the name of credibility—is theofficer's subjective belief that this behavior was unsafebecause Mr. Munoz could have driven off the road in the future and hit something. Allowing a police officer'sspeculation "to suffice in specific facts' steadeviscerates Terry's reasonable suspicion protection."Further, speculation about what might occur in the futureamounts to no more than a hunch. Id, dissenting opinion.

2. The 38.23 Charge in the context of"Reasonable Suspicion" Analysis:

I had become increasingly concerned in the last severalyears about the degradation of the standard for a trafficstop from probable cause into mere reasonable suspicion,particularly in the context of the CCP art. 38.23 jurycharge. The Yoda opinion, from the Eastland Court ofAppeals, perfectly illustrated my concern prior to thelater Chambers opinion from the Court of CriminalAppeals, discussed Infra. Yoda v. State, 630 S.W.3d 470(Tex.App.—Eastland 2021, pet. ref'd.).

First of all, in order to request a 38.23 charge, thedefense attorney has to lay the proper groundwork. Inthe specific facts of Yoda, where the stop was based onan alleged speeding offense, the defense would have hadto provide some affirmative evidence in the record of"did not speed." Id. Even the defense attorney'saggressive cross-examination of the officer, showing thathe was basically incompetent to investigate a speedingoffense, wasn't enough to warrant the 38.23 charge inYoda. But, what would have been enough?

To create a factual dispute and lay the groundwork for aninstruction under Article 38.23, the defense mayconsider, among other trial tactics, impeaching usingcontradictory documents or video, waiving the FifthAmendment and placing the defendant on the stand tocontradict the testimony of the officer, presentingthird-party witnesses and/or eliciting cross-examinationadmissions from an officer on site at the time of the stop.

{Practice note: This is the best reason for your ALRhearing: if you are ever going to be able to coax anofficer into admitting that he may have been unable tosee what he said that he saw from his location, it/s at the ALR hearing, when he may want to at least seem to bereasonable.}

But, it is here that Yoda expressed the danger to defenseattorneys who like to use the 38.23 charge to get a juryto "suppress" a stop, since the officer's standard formaking the stop is mere reasonable suspicion. Yoda said: ...if it is the presence of reasonable suspicion tojustify the traffic stop that was at issue, anArticle 38.23 instruction would not be warranted. The legal determination of whether an officer'sobservation qualifies as reasonable suspicion is a •matter of law for the trial court; it is not a fact issue for the jury to resolve following aninstruction from the trial court under Article 38.23. Madden, 242 S.W.3d at 511 (noting that trial judge decides what "quality and quantum" of factsare necessary to establish legal terms of art like"reasonable suspicion" or "probable'cause"). "Onlythe judge is authorized to determine the legalsignificance of the material facts in the case andhow they affect the ultimate conclusion regardingthe existence, vel non, of probable cause orreasonable suspicion." Robinson v. State, 377S.W.3d 712, 722 (Tex. Crim. App. 2012).

Yoda v. State, supra.

{Conunent: According to Yoda, in order to lay thefoundation for a 38.23 charge, a defense attorney wouldhave to couch that requested charge in terms of what theofficer "saw or heard," so that the dispute for the jurywould not end up being the reasonableness of his opinionthat what he saw or heard was, e.g., speeding. It seemedto me that Yoda would effectively judicially abolish the38.23 charge. I will leave it up to the appellate gurusto explain the full implications of Yoda on the 38.23charge.}

Another Glimmer of Hope?: Thank God that, after the dangerous ideas about the Art. 38.23 charge expressed bythe Eastland Court of Appeals in Yoda, a unanimous Courtof Criminal Appeals rejected a nearly-identical argumentin Chambers. Chambers v. State, No. 06-18-00090-CR, 2019 Tex. App. LEXIS 2500 (Tex. App.--Texarkana,2/5/19)(memorandum opinion not designated for

publication), revrd. and remanded, No. PD-0424-19, No.2022 Tex. Crim. App. LEXIS 221 (Tex. Crim. App., April 6,2022)(not yet published).

{Coinment: Chambers clearly demonstrates how far over theedge appellate courts have gone in subverting thestandard for a traffic stop from probable cause to merereasonable suspicion. Many of our appellate courts havean utter disregard for the 4th Amendment and zero regardfor the "truth," insofar as it is defined as "conformityto fact or actuality." In some particularly Orwelllanreasoning, the Texarkana Court of Appeals upheld a stopfor no rear license plate when the "AO's" dash-camclearly showed that the license plate was right there onthe defendant's bumper for all to see all along!

It's clear to me from the lower court's rather epistemological opinion in Chambers that the "truth" ofthe reason for a traffic stop is no longer an absolutething but, rather, a more fluid and flexible concept thatdepends upon whether it leads to other evidence of acrime. Texarkana would apparently hold that the "truth"is always what a law enforcement officer says it is andthat it really doesn't matter that the officer's "truth"isn't based in reality.}

In Chambers, the "AO" stopped the defendant for thealleged traffic violation of having no rear licenseplate. Unfortunately for the State's case, according tothe Court of Criminal Appeals opinion, the "AO's" dash-cam video and still photos of defendant's vehicle takenat some other time "show defi.ni. ti.vely that a paper IJLcense jalate was indeed attached to the back of Appellant's truck." Chambers v. State, supra, 2022 Tex.Crim. App. LEXIS 221.

So, to what mental and legal gymnastics did the TexarkanaCourt of Appeals have to resort to uphold the stop and, more particularly, uphold the trial court's denial of the 38.23 charge? First, Texarkana resorted to Admiral Horatio Nelson's trick of "turning a blind eye to thetelescope": they said that the "glare" from the "AO7s"take-down lights was so great that it drowned out thetag! 2019 Tex. App. LEXIS 2500 *10.

The case that Texarkana cited had said that the "AO" in that other opinion couldn't see the tag in thatdefendant's window because the defendanfs heavily-tintedwindow rendered the tag in that case invisible. At leastthat could be blamed on the defendant in Foster. That's a far cry from the facts in Chambers, where the "AO's"

lights overly-illuminated the license tag to the point ofdrowning it out! One is left to wonder whether Texarkanawould have upheld a stop based upon an officer not beingable to see the license tag only because the officer tookoff his glasses so that he wouldn't be able to see thelicense tag? Id.

This is where the Texarkana Court of Appeals really wentoff the rails in a stunning example of where the"reasonable suspicion" for a traffic stop has led ourjurisprudence. Texarkana correctly observed that, "evenif the officer's reasonable suspicion turns out to beunfounded, this does not obviate the reasonableness of the initial traffic stop." Chambers v. State, 2019 Tex.App. LEXIS 2500, *10. Building on that logic, "even wherean officer is mistaken about a historical fact, an Art. 38.23 instruction is not necessarily required. //

It's then that Texarkana revealed the problem with the38.23 charge when the standard for a traffic stop ismerely "reasonable suspicion." In its unpublished opinionin Chambers, Texarkana stated the real problem in afootnote, probably hoping that no lawyers ever read theirunpublished opinions any longer, much less the footnotes:

It is conceivable that an officer's testimony mightbe reasonable but also untruthful. Thus, merelybecause the officer's testimony is reasonable doesnot automatically mean the officer's testimony wastruthful.

Chambers v. State, 2019 Tex. App. LEXIS 2500, *15 (lowercourt's opinion).

Texarkana would only require an Art. 38.23 instructionwhen there was a dispute about whether the officer wasgenuinely mistaken, or was not telling the truth, abouta material historical fact upon which the assertion ofreasonable suspicion hinges; that is to say, that thedefendant must somehow demonstrate that the officer was lying about his observation. Somehow, the reality thatthe license tag was, in fact, visible in the dash-cam andsubsequent still photos taken in a well-lit garage wasnot enough to compel a 38.23 charge! So, how would youever. prove that the "A0'/ was lying about what he couldn'tsee in a more conclusive manner than by showing that thething that he couldn't see was clearly there (i.e, the"truth")? Id.

In its 4/6/22 initial opinion in Chambers, a unanimousCourt of Criminal Appeals had no problem with seeing that

the paper tag was "definitively indeed" attached to theback of defendant's truck. The Court of Criminal Appealssaid:

Here, the court of appeals' analysis suggests thatAppellant was required to affirmatively prove theofficer could see the license plate in order to geta 38.23 instruction, [citation omitted] But that is not the case. As this Court has explained, theevidence need not prove the existence of the fact;it just has to raise the factual issue. See Madden,242 S.W.3d at 510; Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). The evidence heredoes exactly that, so Appellant has met the firstrequirement to submit a jury instruction underArticle 38.23.

Chambers v. State, 2022 Tex. Crim. App. LEXIS 221, *5;"the 4/6/22 opinion")."

Second, Appellant proved the evidence on the fact issuewas affirmatively contested. The dash-cam video and stillphotographs depicting a license plate affirmativelycontest the officer's claim that he could not see a license plate. Since the evidence showed that Appellantdid have a license plate displayed on the back of histruck, then whether an objectively reasonable basis forthe stop existed was a contested fact issue that wasmaterial to the lawfulness of the stop. This fact issue, then, was certainly material to the legality of the stop,and Appellant satisfied that third requirement. Chambersv. State, 2022 Tex. Crim. App. LEXIS 221, *6. ("the4/6/22 opinion")

The Court of Criminal Appeals reiterated that the Art.38.23 instruction is a right afforded to a defendant evenaftel" a trial court's motion to suppress ruling. In thiscase, the trial court clearly acted within its discretionand authority to deny the motion to suppress, butAppellant was entitled to have the jury consider thelawfulness of the stop under Article 38.23. Id.

Although the Texarkana Court of Appeals spent much timeemphasizing the timing of the still photos, it did notmatter what time they were taken, since they still raiseda fact issue about what the officer could see, which raised a question about whether he was mistaken or beinguntruthful. Chambers v. State, 2022 Tex. Crim. App. LEXIS221, *7 ("the 4/6/22 opinion") .

The CCA' s 9/13 opinion on the State/ Motion for

Rehearing: The State just had to try again in Chambers.They filed a motion for rehearing, claiming (1) thelicense plate was not properly illuminated; (2) thelicense plate letters and numbers were obscured or altered; and, (3) the license plate was expired. Chambersv. State, No. PD-0424-19, 2022 Tex. Crim. App. LEXIS 602,at *1 (Tex. Crim. App., Sep. 14, 2022)(not yetpublished).

In denying the State's motion for rehearing, the CCAimmediately noted that the illumination and readabilityissues were affirmatively contested by evidence presented at trial. The third reason—the expired tag—was immaterialfor deciding the Article 38.23 jury instruction in thiscase because the "AO" testified that he could not see the tag at all, and therefore, would not have been able tobase the traffic stop on the expired tag. Id.

Another reason that I love Chambers so much is that the CCA is finally making it clear that the State needs tomake its "winning" arguments first at the trial level.The first time the State specifically made the "properillumination" argument under Trans. Code §547.322("Taillamps Required") was in its brief on discretionaryreview! The State didn't come up with its argument thatthe tag was obscured and altered until its motion forrehearing! The State even misquoted the CCA's 4/6/22 opinion for its argument that the "improper illumination"argument was "uncontested" at trial, which really seemed to arouse the CCA's ire. The CCA went to great lengths to point out where the exhibits clearly showed, both that the tag was properly illuminated and the presence of thelight fixture that was illuminating it. Id.

On rehearing, the CCA reiterated its rule from its 4/6/22opinion regarding what the defense attorney has to do inorder to warrant a 38.23 charge. First, all that isrequired for a factual dispute is some affirmativeevidence. All that is required to establish entitlementto an Article 38.23 instruction is some evidence that creates a material dispute with the evidence supportingthe traffic stop. The evidence that raises a factualdispute under Article 38.23 can be "strong, weak,contradicted, unimpeached, or unbelievable." Nevertheless, the evidence must still actively conflictwith the State's assertion of material fact in order to raise an affirmatively contested fact issue for anArticle 38.23 instruction. Chambers v. State, 2022 Tex. Crim. App. LEXIS 602, at *13 (Tex. Crim. App. Sep. 14,2022).

In this case, the jury heard a 15-year veteran officer claim he did not see a license plate where he expected it to be—the utility truck's center-rear area. The jury also saw videos in which the license plate was prominentlydisplayed and illuminated on the left side of the truck. All this evidence raised a genuine issue of material fact that supported Appellant's request for an Art. 38.23 instruction. The Appellant was entitled to have the juryconsider whether the officer had a reasonable belief that he was in violation of the law under Article 38.23. Chambers v. State, 2022 Tex. Crim. App. LEXIS 602, at*13-14 (Tex. Crim. App., Sep. 14, 2022).

Keller's dissent: Judge Keller would have granted theState's motion for rehearing on the basis that shecouldn't plainly see the license plate light in any of the numerous video or still pictures, although everyother Judge could see it. She made the distinctionbetween the proof that would be required in a criminaltrial for "no license plate light" and the "A0fs" reasonable suspicion requirement to make an investigativedetention to investigate that matter. She wrote that,

It is not clear to me that a video or photo can substitute for testimony about a fact so as to raise a disputed fact issue for Article 38.23 purposes. The idea of appellate court judges scrutinizing photos and watching and re-watching videos of events that an officer saw once, in real time, in order to decide whether they raise a disputed fact issue seems like the wrong way to address whether a trial court erred in refusing an instruction when there is no testimony contesting the issue.

But even if video or photo evidence can substitute for testimony^ for the video and photo evidence to affirmatively contest the officer's statement that he did not see a white illuminating light, that evidence needs to show that there was in fact such a light. This is unlike the issue we addressed on .original submission, where the videos and photo evidence showed definitively that there was in fact a license tag on the truck and there was testimony that there was a license tag. If the temporary tag was properly illuminated, then someone could have testified to that fact. But there was no testimony that the tag was properly illuminated, and the video and photo evidence does not show definitively that it was.

Chambers v. State, No. PD-0424-19, 2022 Tex. Crim. App.LEXIS 602, at *18-19 (dissenting opinion)(Tex. Crim.App., Sep. 14, 2022) .

{Coniment on Keller7 s Dissent: One of my main case lawgurus, David A. Shulman, made the following comment inthe 9/19/22 weekly edition of "The Jasuta/Shulman Report'from Texas Independent Bar Association: It is clear thatJudge Keller and the rest of the Court view this entiresituation differently - but Judge Keller has a point. Ifthe officer who made the stop did so because he couldn't see the plate or couldn't determine whether the vehicle had the required lighting, then the stop would be a good one. Whether the evidence shows that, however, is not something that can be discerned from these opinions. . .or the opinion on original submission . . . or the Courtof Appeals' opinion.}

{Practice note: Chambers is a good read just for the persistent, "bulldog" cross-examination by the defense attorney. This is a perfect example of how an ALR crossexamination can cut off potential attempts to wire arounda bad stop. By way of example, during cross-examination,the officer in Chambers testified that the expired tag had absolutely nothing to do with the basis of the stop:

Q: Just one more question just to be absolutely sure. You didn't stop Larry Chambers for an expiredtemporary tag, did you?

A: No, sir.

Q: Your testimony is you stopped him because he•didn't have a tag, right?

A: That's correct sir. Id.

In a different type of case, where you want to limit the"AO" to a bad stop for "failure to maintain a single laneof traffic," and to avoid any later prosecution-inspiredcoaching to add "reasonable suspicion of DWI// at thesubsequent hearing on your motion to suppress, you shouldask the "A0// the following at the ALR hearing:

Q: Just one more question just to be absolutelysure. You didn't stop my client for reasonable suspicion that he was driving while intoxicated,did you?

A: No, sir.

Q: Your testimony is that you stopped him becausehe committed the traffic violation of failure to maintain a single lane of traffic, right?

A: That's correct sir.

Read your discovery well prior to the Identify the issues that may come up, and cross-examine the witness. Establish that an investigative detention, that it wasn? encounter, that it wasn't because the "AO the client might be intoxicated, and probe his lack of training or experience at the

ALR hearing. be prepared to the "AO" made t a consensual thought that the "AO" about ALR hearing.}

//

{Conament: If Chambers stands for any one thing, it's thatphysical evidence can create a material dispute with anofficer's testimony with regard to requesting an art.38.23 jury charge. When overruling your motion tosuppress, the trial judge might still be able to get awaywith ignoring an obvious fact, such as the video showingthat the vehicle was equipped with a tag, when"reasonable suspicion" is the standard, but we still getone more bite at the apple based on the objective "truth"in the context of an Art. 38.23 charge. Is it'reasonable" not to see something that is plainly, anddefinitively, there?}

^^

3. Stops Based Upon a Database that Could be Wroncr/No Proof of Reaistration:

{Attribution: [The material in this "Attribution" is taken from an internet advertisement by "Experienced Criminal Lawyers," entitled, "Automatic License PlateRecognition (ALPR) Scanning Systems," Copyright © 2020Get Lawyer Leads, Inc. All Rights Reserved. At times, Ihave edited and paraphrased.

Automatic License Plate Recognition (ALPR) scanningsystems are one of the newest technologies in the handsof law enforcement. The system consists of severalcameras mounted on a police cruiser, hooked up to acomputer inside the vehicle. The number and letter imageson license plates are scanned and matched with anon-board, real-time database. This database can be set with flags for vehicles that have been identified ortagged for any reason, including:

"Stolen Vehicles

Wanted for an Amber Alert Expired Registration Expired Insurance

'Alias" ticket Warrants

Any time one of these alerts is triggered, the officer in the vehicle is immediately alerted to your presence, and for what reason your car has been flagged.

The system can also be matched with the owner of the vehicle via a DPS database. So, if your client is the owner of a car and has a suspended Driver's License or "unconfirmed" car insurance, that will result in an automatic "alert" to the officer even though one of thedriver's kids may actually be driving the vehicle.

A license plate scanner can capture thousands of tags per hour. A police car parked on the side of the highway can scan virtually every car license plate in sight.

Every time an image is captured, it is saved with the time, date, and location by GPS coordinates. So the police now have a record of where your vehicle was spotted at the time of the scan.

The system can make mistakes. The optical character recognition ("OCR") system may be a little glitchy. If it can't decide which letter is on a plate, it will search the database for hits on all options. So it is entirely possible to be pulled over mistakenly based on a hit from the license plate scanner.

The Government can now data-mine all of this historical data, and pull up all scans of a license plate across multiple systems. With all of this data, the Government will be capable of massive retroactive searches with nowarrant or probable cause. A Mobile Data Terminal ("MDT") in a squad car will automatically cross-reference all of this information. It can be used to gather evidence for future investigations of crimes that haven't yet occurred.

More local police departments are setting up these systems every day, often paid for by federal grants by Homeland Security. One internet source claimed that 70% of squad cars are now equipped with this technology. Itwon't be long before nearly every police vehicle has a license plate scanner onboard. The web of interconnected systems will mean you won't be able to drive down theroad without being scanned, tracked and logged, multiple times, with the data stored permanently for future use.}

So, how are Texas appellate courts treating stops based on these "regional hits"? In the last year, I came upon one new published case that considered the validity of a

stop based on a database. In Villarreal, the "AO" enteredthe license plate number of the truck that appellant wasdriving into the "old school" patrol car's MDT to checkvarious databases for information about, among otherthings, the truck's registration and insurance status.The databases included the Texas Crime Information Center (TCIC) , the National Crime Information Center (NCIC) , andthe Texas Law Enforcement Telecommunications System(TLETS). The databases returned "no record" for thetruck's registration status. Based on this information,the officer believed that the truck was not registered.The officer initiated the traffic stop solely based onthe "no record" return. Vlllarreal v. State, 631 S.W.3d198, 202 (Tex. App.-Houston [14th Dist.] 2020, no pet.).

The "AO" testified that the databases are managed by theTexas Department of Public Safety. He had used thedatabases every day for every traffic stop he made, andhe had made many traffic stops. He had found thedatabases to be reliable. In his experience, on "veryfew" occasions the databases would show that a vehicle was unregistered when the vehicle actually wasregistered. The "AO" was not sure what "technicality"would cause such a situation. He acknowledged that itcould be caused by the vehicle having been registered"fairly soon," but he was "not sure what the lag timeis." Vlllarreal, supra, 631 S.W.3d @ 202-203.

The 14th held that, generally, an officer may useinformation obtained from checking a vehicle's licenseplate in a computer database to form reasonablesuspicion. The 14th observed that courts "have regularlyupheld traffic stops based on information that thedefendant's vehicle's registration failed to appear in alaw enforcement database." Even a seemingly inconclusivereport, such as "unconfirmed" insurance status, may be aspecific and articulable fact that supports a trafficstop if the officer is familiar with the database and thesystem is reliable. Villarreal, supra, 631 S.W. 3d @ 203.

The 14th conceded that both unregistered vehicles andnewly registered vehicles might result in.a "no record"return but observed further that there was no affirmative evidence in the case that would serve to undermine the reliability of the TCIC, NCIC, or TLETS databases. Id.The 14th held that. The possibility of an innocentexplanation for the "no record" return (e.g., that thetruck was newly registered) did not prevent the officerfrom reasonably suspecting that the vehicle wasunregistered based on the "no record" return. Vlllarreal,supra, 631 S.W.3d @ 205.

The "majority in Vlllarreal encountered a dissentingopinion. She wrote that "the absence of a record underthese circumstances is nothing more than the absence ofevidence." Villarreal, supra, 631 S.W.3d @ 210[dissenting opinion].

Importantly, the lone dissenter pointed out that themajority had acknowledged several material facts: (1) theofficer had personally encountered registered vehiclesthat did not appear in the database he used; (2) theofficer did not know what caused some registered vehiclesto have "no record.'"', (3) the officer did not know the "lag time" between registration and the database updates;and (4 ) "Appellant adduced evidence that the traffic stopoccurred on a Sunday, and the truck had been registeredthe prior Friday." Villarreal, supra, 631 S.W.3d @ 211.[dissenting opinion]

The lone dissenter concluded that Villarreal would stand for the rule of law that people who register theirvehicles on Fridays can permissibly be stopped byofficers over the weekend, even when those same officers know the database they are using has an unknown "lagtime" for unknown reasons. If legitimate registrations onFridays are almost never placed in the database bySunday, then any given "no record" return on Sundays "maytell a reasonable officer next to nothing. It is hard toimagine how a "no return" report in those circumstancescould form a 'particularized' basis to suspectwrongdoing." Vlllarreal, supra, 631 S.W.3d @, 213[dissenting opinion].

Since Vlllarreal was published, the Dallas Court ofAppeals has already cited it in order to uphold adatabase stop showing ^'unconfirmed insurance." Dallasobserved that, generally, an officer may use informationobtained from checking a vehicle's license plate in acomputer database to form reasonable suspicion.Blankinship v. State, No. 05-19-01436-CR, 2022 Tex. App.LEXIS 872 (Tex. App.-Dallas Feb. 4, 2022, no pet. hist.)(Tex. App.-Dallas, Feb. 4, 2022, _)(memorandumopinion not designated for publication) .

The Dallas Court of Appeals divided the "database" casesinto. two categories: (1) cases where courts have heldthat an officer did not have reasonable suspicion wherethe evidence was not developed to determine the ambiguousanswer's meaning or reliability; and, (2) where courtshave held that reasonable suspicion existed when theofficer, through experience or training, had additionalinformation about what the ambiguous answer from the

database meant and reliability. Id. IIsome idea" regarding the data's

In Blankenship, the "AO" did not testify that the Returnshowed "unavailable" or "undocumented." Rather, the "AO"testified that his MDT returned information on the vehicle showing "unconfirmed insurance, no match within45 days on the vehicle." The "AO" testified that meant it"showed no insurance" and, more specifically, "no vehiclecoverage within 45 days." Thus, contrary to Contraras andGonzalez-Gilando, where the record did not explain themeaning of the database response, the "AO's" testimonywas not ambiguous or inconclusive or "as likely tosupport a finding of compliance as it was for violation."Moreover, the "A0// testified that he used the database regularly and it had been reliable, although heacknowledged on cross-examination, that the database hadbeen wrong "at times." Id.

Dallas approvingly cited to one case, Ollva-Arlta[citation omitted], where a "database" stop for noinsurance was upheld where the officer had explained themeaning of an "unconfirmed" return. The "AO" in that casehad testified that he believed that the insurance database was "reliable," even though he occasionallystopped vehicles whose insurance showed "unconfirmed" butwere actually insured and estimated that 75% of vehiclesstopped with "unconfirmed" insurance had no insurance.Id.

{Comment: The mere 25% chance that you could be stoppeddue to some clerk's failure to timely enter yourinsurance status into the database was of no consequenceto the Dallas Court of Appeals.}

4. Failure to Signal an Intent to Turn a Vehicle right orleft-for not less than tjie J-ast 100 feet of movement ofthe Vehicle Before the Turn/Indisputable VisualEvidence/Defendant/s Expert Evidence: What exactly doesa defense attorney have to do in order to prevail in ahearing on a motion to suppress? In this case, the Dallas5th Court of Appeals affirmed the trial court'soverruling of the trial court's denial of a motion tosuppress based on the "AC'S" stop of defendanfs vehiclefor failing to signal a right turn at least 100 feetprior to the turn under Trans. Code §545.104(b). Nadeauv. State, No. 05-19-01137-CR, 2022 Tex. App. LEXIS 5550,at *7 (Tex. App.-Dallas Aug. 3, 2022, no pet.)(memorandumopinion not designated for publication) .

In Nadeau, the "AO" was conducting narcotics interdiction

with his K9 in an area where he had made a lot of drugarrests. He saw defendant leave a Valero gas station, getin his car, and drive off. Defendant was wearing a"7-Eleven" shirt, which caught the "A0/s// eye. Jd.

The "AO" had a clear line of sight as defendant's vehicledrove past the place where the "AO's" Tahoe was parked,and defendant's turn signal was off as he crossed infront of the "AO's" patrol car. The "AO" pulled out andstarted driving behind defendant, who quickly activatedhis turn signal and made a right turn into a Snap-E-Jackgas station. Defendant's car was approximately a carlength or a car length and a-half away from the turn. The"AO" based this approximation on the length of his Tahoe,which was 17.1 feet long, and stated that there was "noway" the turn signal was activated "outside of 25 feet"from the turn. The "A0// later summarized the distance as "maybe inside of 25 feet, but nowhere close to outside ofa hundred feet" from the turn. The "AO" testified that what he saw was a violation of Trans. Code §545.104(b).Id.

The "AO's" dash-cam video was admitted into evidence. The defense called a private investigator ("PI"), whotestified that he used software programs such as GoogleEarth and Corel Draw and made measurements at the scene. Based on his on-scene measurements and his review of the "AO's" in-car video, the "Pl's" conclusion was that the turn' signal was on at approximately 162 feet from theturn. The "PI" admitted on cross-examination that he was not there on the night of the stop, and he was basing hisconclusion on estimates and could not say what the "AO"could or could not see. Id.

The trial court congratulated the defense attorney on theexcellent investigation, but noted that he was notlimited to what the video camera showed. The trial court explained that he was to take into consideration all ofthe evidence as a whole, including the "AO's" testimony.The 5th Court of Appeals held that the "A0/s// personalobservation of appellant failing to signal his right turncontinuously for at least 100 feet before turning,combined with the evidence from the "A0/s" in-car video, provided objective, articulable facts supportingreasonable suspicion to stop defendant for a trafficviolation. Id.

Later in Nadeau, in a separate point of error related toadmission of the "Pl's" testimony at the jury trial, the5th Court of Appeals dove deeper into the trial court'sattitude toward the testimony of the "PI'/ and why hechose to disregard the "Pl's" measurements at the hearing

on the motion to suppress. The "PI" used the "A0/s" in-car video "to determine reference points throughout the video." The trial court appeared to rule that the"PI" was not qualified to testify as an expert that, based on looking at the lights on the video, defendant's blinker was on at least 100 feet before the turn. The trial court noted there was no indication that the "PI" was "some lighting expert" or "what expert would testify to that," and the jury could "watch the same video" andreach its own conclusion. Jd.

The trial court had indicated that it had no concern about the "PI" testifying to "where he thinks the hundredfeet [mark] was or is because he measured it." But the trial court was concerned about the "PI" testifying "that based upon his analysis the blinker was on outside of a hundred feet" because the provide such testimony. Id. \-\PI" was not qualified to

The defense attorney never established that the "PI" was an accident reconstruction expert. The trial court asked defense counsel what expertise the "PI// had regarding lighting and the way it reflected "off the road," but the defense was only able to answer vaguely that the "pl" had taken measurements. The trial court asked for any journal articles about the lighting issue but the defense couldprovide none. Id.

Furthermore, the court could have considered other factors that impacted the "Pl's" credibility, e.g.,testifying that the turn signal was on at 162 feet duringthe suppression hearing and at the 148-foot mark at therule 702 hearing; and, acknowledging that he could notsay what the "AO" could or could not see on the night of the stop. Id.

C. Probable ^ause t^ Arrest for DWI/ Temporal Link Between Operation of_ the Vehicle and Intoxication: The facts of Espinosa bear detailed recitation. At around 3:15 p.m. on aweekday, the "CI" and her cousin drove past a stopped line ofcars waiting in the far-right lane of a public roadway forafter school pick-up at an elementary school. All the carswere at a standstill. The "CI" saw defendant sitting in thedriver's seat of her car in the waiting line but noticed thatdefendant's neck appeared to be at an odd angle. State v.Espinosa, No. 14-20-00751-CR, 2022 Tex. App. LEXIS 3103, at *1(Tex. App.-Houston [14th Dist.] May 10, 2022, pet. granted8/24/22)

Concerned that defendant might be experiencing a medicalemergency, the "CI" asked her cousin to stop. The two

approached defendant's vehicle. Defendant was alone in thecar, which was in park with the engine running. Defendantappeared to be sleeping. The "CI" tried to open the door, butit was locked and the windows were up. The "CI// began poundingon the car's door and window. At this point, another driverwaiting in the pick-up line called 911. Id.

Defendant awoke and opened her door. The "CI" could smellalcohol, and noticed defendant's car was in park. Thoughdefendant was initially unresponsive, she spoke after a minuteor two but was very difficult to understand. Defendant got outof the car and asked the "CI" to drive her home. Id.

An elementary school teacher approached and told defendantthat 911 had been called and the police were on the way.According to the "CI", when defendant learned that the policehad been called, she went from "lethargic" to "kind of panickya little bit" and started walking toward her car. The "CI"removed the keys from the vehicle. At that point, the vehiclesin the pick-up line had begun moving and were driving arounddefendanfs car to make the turn to proceed into the line.When the elementary school teacher approached defendant,defendant was already outside her vehicle, and the elementaryschool teacher could not say how long she had been in thepick-up line. With defendant's permission, the elementaryschool teacher drove the vehicle to a nearby parking lot whiledefendant rode in the passenger seat. After the elementaryschool teacher moved defendant's car, she kept the car keys.The elementary school teacher confirmed that she did not seedefendant inside her vehicle. The elementary school teachertestified, however, that the pick-up line generally startsaccumulating around 3:00 p.m. and that defendant's car wasabout the fifth car in line. Id.

A fire truck arrived about thirty minutes after the "CI" firstsaw defendant. Fire department personnel checked defendant formedical issues and then waited for the police. Ten minuteslater, the "AO" arrived. The "A0// was certified in "SFSTs" and had some training and experience with evaluating intoxicateddrivers. The "AO" spoke to the "CI", her cousin, theelementary school teacher, a firefighter, and defendant. Id.

In addition to the other facts observed by the "CI," she alsotold the "A0// that defendant "smelled like a bar" and "couldn't walk a straight line." One of the firefighters alsotold the "AO" that defendant smelled of alcohol. Four emptywine bottles were removed from defendant's car. The elementaryschool teacher told the "AO" that defendant said she was goingto a nearby middle school, possibly to pick up her son.However, the elementary school teacher also acknowledged thatshe did not see defendant actually drive her car or know whendefendant parked at that location. Id.

The "AO" observed that defendant had slurred speech, wasdisoriented, was confused about where she lived, was unsteadyon her feet, had "glossy" red eyes, and had a strong odor ofalcohol emanating from her person. The "AO" acknowledged thatno one had seen defendant driving her vehicle but explainedthat defendant told him that she was coming from her house andwas on her way to pick up her son. Defendant refused "SFSTs,"and the "AO" arrested her for suspicion of DWI. Id.

The trial court granted the defendant's motion to suppress.Among other findings, the trial court determined that no onesaw defendant operating her vehicle and that no witness knewwhen defendant arrived in the pick-up line. The 14th Court ofAppeals acknowledged that case law has long provided that,under a sufficiency review, a person operates a vehicle if thetotality of the circumstances indicates that the person tookaction to affect the functioning of a vehicle in a manner thatwould enable the vehicle's use or exerted personal effort tocause the vehicle to function. The 14th then appears to switchup the terminology by saying that, for the evidence to besufficient to support a conviction for DWI, a "temporal link"must exist between the defendant's intoxication and his driving, citing Kuclemba v. State, 310 S.W.3d 460, 462 (Tex.Crim. App. 2010) . This temporal link may be established bycircumstantial evidence. Circumstantial evidence is as probative'as direct evidence in establishing guilt. Id.

The 14th noted that there was no testimony adduced as to whendefendant arrived at the location where she was spotted by the"CI." Further, there was no evidence that the defendantintended to drive her car; to the contrary, the "CI," who hadtestified that she initially made contact with defendant,testified that defendant had asked the "CI// to drive her home. The elementary school teacher then drove the car to a parkinglot after obtaining defendant's permission to do so,indicating an intention of defendant not to operate hervehicle. Id.

The State argued that numerous Texas courts, including the14th, had found probable cause to arrest for DWI under thetotality of the circumstances standard despite the fact thatan officer did not see the accused operating a motor vehicle.However, the 14th found those cases to be distinguishable. Inthe present case, they held, there was no admission orevidence of intoxication while operating a vehicle. Defendantdid not admit to drinking, there were no positive breathalyzerresults or failed field sobriety tests to suggest if, when,and how much, if any, alcohol was consumed. None of thewitnesses knew how long defendant's vehicle was in thelocation where she was observed, no one saw defendant drive oroperate her vehicle, and the testimony indicated thatdefendant did not express an intent to drive or operate her

vehicle. Id.

The two-person majority opinion in Espinosa met with adissent. The dissenting Justice wrote that the majorityessentially conflated the probable cause inquiry with a legalsufficiency analysis. The issue was actually whether, based onthe facts and circumstances within the "AO's" knowledge and ofwhich he had reasonably trustworthy information, a prudentperson in his shoes could believe that defendant was operatingher vehicle while intoxicated. It is clear that only theprobability, and not a prlma fade showing, of criminalactivity is the standard of probable cause. Id.

According to the dissenter, the circumstantial evidence hereshowed that defendant was asleep at the wheel in a schoolpick-up line on a public roadway that undisputedly did notstart forming until about fifteen minutes before she wasdiscovered there. The most probable way she could have come tobe in that particular place at that particular time is if shedrove there while the line was forming. Id.

{Comment: Although I already won an ALR hearing due toEspinosa, I am predicting that this case is very likely to bereversed by the CCA. First, the "CI// arguably testified thatshe saw the defendant "operating" her vehicle. Second, I haveto agree with the dissenter to the extent that the majorityseemed to conflate the probable cause standard with that ofevidentiary sufficiency.

In the May 16, 2022 "Jasuta/Shulman Report", published byTexas Independent Bar Association, Vol. 30, No. 17, "Dr. Dave"Shulman opined that

The bottom line is that Appellee was not "operating" whenthe car was first noticed, there was no evidence which would have allowed anyone (certainly not the trial judge)to say Appellee probably operated the vehicle whileintoxicated, and more than ample evidence for the trialcourt to have found that, although it was possible thatAppellee operated the vehicle while intoxicated, theevidence presented in the suppression hearing showednothing more than that she had "possibly" operated thevehicle while intoxicated. Both the trial judge and theCourt of Appeals reached the proper conclusion.

In that same issue, John Jasuta opined that:

I think this will not last. The evidence showed she was alone in a car, empty bottles were there, she couldn'twalk well and the car was running. While I think themajority got it right, I doubt that the Court of Criminal

Appeals will agree.

I have to think that the CCA granted PDR in this Espinosamatter to further elucidate why this behavior either does, ordoes not, equate to "operating" the motor vehicle. I have toagree with John Jasuta's opinion that they will take thisopportunity to say that sitting in a motor vehicle with theengine running constitutes "operating" the vehicel. I hopethat I'm wrong. Watch for this one!}

III. Issues that Only Apply to DWI Cases :

A. SJ^ate/s Proof in an Intoxication Manslaughter Case:

1. The Defense of "Concurrent" Cause: In an intoxication manslaughter case, the State is required to prove thatthe defendant's intoxication caused the fatality. Ifconcurrent causes are present, two possible combinationsexist to satisfy the "but for" requirement: (1) thedefendant's conduct may be sufficient by itself to havecaused the harm, regardless of the existence of aconcurrent cause; or (2) the defendant's conduct and theother cause together may be sufficient to have caused theharm. Olalde v. State, 635 S.W.3d 404 (Tex. App.-SanAntonio 2021, no pet.). However, if the additionalconcurrent cause, other than the defendant's conduct, is clearly sufficient, by itself, to produce the result andthe defendant's conduct, by itself, is clearlyinsufficient, then the defendant cannot be convicted. In Olalde, the jury simply didn't buy the defendant'stestimony that the collision resulted from anothervehicle running into her vehicle where the State heavilyrefuted her theory of the case.

2. Exp^rt_ Testimony: Usincr the Vehicle's "Black Box" to Prove _Gross Neq-liaence: Three recent cases have discussed the admissibility of the data available from a "blackbox" to demonstrate the driving factors that led to a carcrash resulting in a death.

I didn't find Brantley to be particularly helpful, firstbecause it contained a really confusing discussion aboutwhether trial counsel waived the error, if any,concerning the underlying science of the "black box"technology itself ("reliability"), rather shifting to adiscussion of whether the State's expert was competentmerely to download the data from the "black box" and thenutilize it in formulating his own opinion as to thedefendant's gross negligence when combined with the restof the factors developed during his own traditionalaccident investigation, based on such factors as, e.g.,

measurements of skid- and yaw-marks, and engineeringstudies showing the speeds required to break a particularconcrete barrier. Brantley v. State, 606 S.W. 3d 328(Tex. App.--Houston [1st Dist.] 2020, no pet.).

The purpose of the "black box" is to determine whether todeploy airbags in a vehicle. The black box has anaccelerometer inside that detects rapid changes invelocity. If the black box detects a rapid change invelocity forward or backward, it will deploy the frontairbags. If the black box detects a significant change invelocity from the side, it will deploy side orside-curtain airbags. Brantley, supra, 606 S.W. 3d @332-333.

In addition, and more importantly for purpose of a trialfor intoxication manslaughter, when the "black box's"accelerometer detects a rapid change in velocity that issignificant enough to deploy an airbag, the "black box"permanently records certain vehicle data every tenth ofa second for the preceding five seconds before thevelocity change and airbag deployment. The "black box"records data such as the date and time of the airbagdeployment, whether the driver and front passengerseatbelts were buckled, the speed of the vehicle in milesper hour, the percent of throttle and brake applied,engine revolutions per minute ("RPM'/) , the degree ofsteering wheel input to the left and right, and the tirepressure of all four wheels. The data also shows thevehicle's odometer at the time of airbag deployment. Thisdata can be downloaded onto a computer in a readableportable document format ("PDF") report. Id.

In Brantley, the accident investigator didn't know aboutthe manufacturing process of the "black box," whether theprocess varied between manufacturers, what specificationseach manufacturer requires from their "black boxes," howthe "black boxes" prevent errors, or what standardsmanufacturers use to ensure the accuracy of "blackboxes." Brantley, supra, 606 S.W.3d @ 334. He justconnected a manufacturer's retrieval tool to the "black box," connected that tool to his laptop, and then inputthe data into his laptop to make a "PDF// report. Id. Heopined that he knew it worked, in part, because itdeployed the airbag.

The 1st Court of Appeals noted that the State had arguedthat the Court could take judicial notice of thereliability of the scientific theory and methodology ofthe "black box" from cases outside of the State of Texas,but the 1st Court never provided any citations to anysuch cases from outside of Texas in its opinion. Id.

The 1s went on to uphold the trial court's decision toallow the State's expert to testify on the basis that thedata from the "black box" only supported his ownconclusions based upon evidence obtained at the scene inthe more traditional accident reconstruction. The Court didn't believe that the expert's lack of knowledge aboutthe manufacturing process of the "black box," theaccelerometer, or the "black box" error rates affected the reliability of his testimony. Id.

Of the three "black Box" cases, Vitela was slightly morehelpful because San Antonio actually did what the Statehad asked the 1st Court of Appeals to do, that is: takejudicial notice of "gatekeeper" cases from outside theState that had already determined the "reliability" ofthe "black box." In that regard, the San Antonio Court ofAppeals provided the following slight "digest" of casesfrom other States that had previously ruled on thesubject:

Introducing black box evidence in a collision case,for example, is not new or novel. See id. (citingCommonwealth v. Zimmermann, 70 Mass. App. Ct. 357,873 N.E.2d 1215 (Mass. App. Ct. 2007); Mates v.State, 899 So. 2d 403 (Fla. Dist. Ct. App. 2005);State v. Shabazz, 400 N.J. Super. 203, 946 A.2d 626(N.J. Super. Ct. Law Div. 2005)).

Vitela v. State, No. 04-19-00737-CR & 04-19-00738, 2021 Tex. App. LEXIS 10090 Tex. App.-San Antonio, Dec. 22,2021, )(Not yet published) .

Like the 1st Court of Appeals in Brantley, discussedabove, San Antonio based its decision to uphold the trialcourt's ruling admitting the expert testimony as to the"black box" on the basis that it was just one factor thatwas taken into account by the expert, along with his moretraditional accident reconstruction. Id.

Yet another recent case relied on data from a "black box' to prove highly damaging facts in an involuntarymanslaughter case. In Nguyen, a manslaughter caseinvolving no alcohol or drugs, only some pretty baddriving, a jury gave the defendant a maximum twenty-yearsentence, with a "deadly weapon" finding. The reportgenerated from the "black box" showed two "events"separated by 1.9 seconds. The accident investigatoroffered his opinion, admitted over appellant's objection,that the first event corresponded with appellant'scollision with a fire hydrant just prior to her vehiclestriking the pedestrian decedent and dragging him up tothe second event that corresponded with the vehicle

//

sheering a utility pole in half. Nguyen v. State, No.05-20-00241-CR, 2022 Tex. App. LEXIS 6533, at *4-5 (Tex. App.—Dallas Aug. 29, 2022, no pet. hist.)(memorandum opinion not designated for publication) .

The report indicated that appellant was traveling fiftymiles per hour at the first event, and other testimonyestablished appellant was traveling fifteen miles perhour in excess of the posted speed limit. The crash datareport reflected that the vehicle was traveling atthirty-six miles per hour when the second event occurred.The accident investigator opined that, based upon thereport, from the time the vehicle struck the fire hydrantto the time the vehicle crashed into the utility pole,neither the brake nor the accelerator was being depressedand the vehicle was "coasting." Id.

The 5th Court of Appeals held that the "black box" report is not hearsay because it is a device that merely recordsphysical information and stores that data until it is retrieved. Texas courts recognize a distinction between"computer-generated data" and "computer-stored data."Mechanical devices are not persons and cannot be"declarants." Citing State v. Zlegler, a case that the5th Court of Appeals found to have "remarkably similarfacts" to this case, the Minnesota Court of Appeals held that a report generated by a vehicle's event datarecorder did not constitute "testimonial statements of the people who wrote the computer program that operates"the device. State v. Zieqler, 855 N.W.2d 551, 557 (Minn.Ct. App. 2014). The court reasoned: "To be sure, therecan be no statements which are wholly machine-generatedin the strictest sense; all machines were designed and built by humans. But certain statements involve so little intervention by humans in their generation as to leave nodoubt that they are wholly machine-generated for allpractical purposes."

3. Syfficiencv of State/s^roof of ^Recklessness" in a Manslaughter Case: A person commits the offense ofmanslaughter if he recklessly causes the death of anindividual. TEX. PENAL CODE ANN. § 19.04(a). "A person acts recklessly, or is reckless, . . . when he is awareof but consciously disregards a substantial andunjustifiable risk that . . . the result will occur." Id.§ 6.03(c). The risk created "must be of such a nature and degree that its disregard constitutes a gross deviationfrom the standard of care that an ordinary person wouldexercise under all the circumstances as viewed from the actor's standpoint." Id.

Recklessness requires the defendant to foresee the riskinvolved and consciously decide to ignore it. The issueis not one of theoretical possibility, but one ofwhether, given all the circumstances, it is reasonable toinfer that the particular individual on trial was in factaware of the risk. However, a defendant need not be aware of the specific risk of another's death to commitmanslaughter. Lovelace v. State, Nos. 07-21-00146-CR,07-21-00147-CR, 2022 Tex. App. LEXIS 6832, at *12-13(Tex. App.-Amarillo Sep. 7, 2022, no pet. hist.).

In Lovelace, the appellant conceded that his driving onthe wrong side of the highway created a substantial andunjustifiable risk. However, he contended that he did notconsciously disregard that risk because he was not awarethat he was driving on the wrong side of the highway. Id.

The 7th 7\marillo Court of Appeals in Lovelace relied uponthe fact that responding officers had noticed anoverwhelming smell of alcohol coming from the appellant'scar and that lots of beer bottles and cans were found in the cab of the car. An open beer bottle was located inthe driver's seat area of the car. Additionally, a bloodtest performed at the hospital revealed the presence ofcannabis in appellant's system. While the State did notoffer any evidence that appellant was intoxicated at thetime of the accident, the jury could reasonably inferfrom the presence of alcohol in the vehicle, cannabis inappellant's blood, and appellant driving on the wrongside of the highway that appellant was impaired at thetime of the accident, thus supporting the jury's findingof "recklessness." Id.

In Nguyen, appellant was indicted for manslaughter andthe lesser-included offense of criminally negligenthomicide. See Tex. Penal Code Ann. §§ 19.04, 19.05. The jury found appellant guilty of manslaughter, made anaffirmative deadly-weapon finding, and assessedpunishment at 20 years' confinement and a $10,000 fine.Appellant contended that the evidence was insufficient toestablish her mental state of recklessness for the charged crime of manslaughter. She argues that, at most,the evidence was sufficient to convict her of criminallynegligent homicide. Nguyen v. State, supra.

The mental states required for the two offenses aredefined in subsections (c) and (d) of Penal Code section6.03:

(c) A person acts recklessly, or is reckless, withrespect to circumstances surrounding his conduct orthe result of his conduct when he is aware of but

consciously disregards a substantial andunjustifiable risk that the circumstances exist orthe result will occur. The risk must be of such a nature and degree that its disregard constitutes agross deviation from the standard of care that anordinary person would exercise under all thecircumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is• criminally negligent, with respect to circumstancessurrounding his conduct or the result of hisconduct when he ought to be aware of a substantialand unjustifiable risk that the circumstances existor the result will occur. The risk must be of such a nature and degree that the failure to perceive itconstitutes a gross deviation from the standard ofcare that an ordinary person would exercise underall the circumstances as viewed from the actor's standpoint.

Tex. Penal Code Ann. § 6.03(c), (d). The differencebetween manslaughter and criminally negligent homicide,therefore, is the difference between "conscious risk creation" and "inattentive risk creation." Id.

To prove the mental-state element of manslaughter, theState must prove beyond a reasonable doubt that appellantengaged in conduct that created a substantial andunjustifiable risk of death to others and consciouslydisregarded that risk. Nothing in the Penal Code suggeststhat the conduct must be outside of or in addition to the act .of driving itself. "Recklessness" can be appliedgenerally to the act of driving. Id.

The evidence in Nguyen showed that appellant wasspeeding, tailgating, weaving in and out of traffic, andnot using a turn signal to indicate lane changes. It alsoshowed that when appellant's vehicle jumped onto thecurb, she failed to take actions, such as braking orveering back onto the road, which would have avoidedrunning over the decedent. Shortly after the accident,appellant had also told the first officer on the scenethat she was "looking at her GPS" at the time of theaccident because she wasn't familiar with the area. This evidence was sufficient for the jury to conclude thatappellant created the risk; there was no need for theState to prove that she engaged in some additionalconduct, such as taking drugs. Proof of any one of thesemeans was sufficient to support the conviction. Id.

B. The the ^

Necessity" Defense in a DWI case: In order to raise the defendant must admit to all'necessity" defense, elements of the offense. Specifically, the Court of CriminalAppeals has held that a defendant cannot flatly deny thecharged conduct, but if he admits to circumstances surroundinghis conduct from which the jury could infer the mental state,the doctrine of confession and avoidance would still be satisfied. DWI is a strict liability crime, however, andrequires no specific mental state. Maciel v. State, 631 S.W.3d720 (Tex. Crim. App. 2021) .

In Maciel, Appellant went out drinking with her brother andhis wife. Appellant was too intoxicated to drive home so herbrother drove her vehicle. On the way back to Appellant'sapartment. Appellant's brother became ill and stopped the carin the middle of the road and began vomiting. Appellantclimbed over from the passenger seat to the driver's seat.Although Appellant was intoxicated and did not feel safe todrive, she had "to try and move the car out of the middle ofthe road to the closest parking lot." However, Appellant couldnot get the car to move. She testified, "I couldn't get thecar to move, so I wasn't driving. I don't think I wasoperating it." The State argued that Appellant could not arguethat she was not driving or operating the vehicle and alsoclaim she"was driving out of necessity. The trial court deniedthe request for the defensive instruction. Id. //

The Court held that Appellant was entitled to the "necessity'jury instruction because Appellant's testimony essentiallyadmitted to every element of the offense charged. She admittedto being intoxicated, admitted to being behind the wheel ofher vehicle with the engine running, admitted that she gotinto the driver's seat to try and move the car, and admittedthat she was trying to get the car safely to a parking lot.Id.

Our jurisprudence regarding the confession-and-avoidancedoctrine does not require an explicit admission from thedefendant that she committed the crime. Appellant wasessentially saying that if she was operating a motor vehicle,it was only for the purpose of necessity. Appellant'sadmission that she was trying to move the vehicle, even if thevehicle didn't "go," satisfies the confession-and-avoidancerequirement, regardless of Appellant's personal definition ofwhether or not she legally "operated" the vehicle. Id.

C. Is the ^0.15" Element of Class "A" Misdemeanor DWI an Element of the Offense that Must be Alleged, Proved, andSubmitted to the Jury in the Jury Charge in Order to Maintaina Conviction for the Class "A" Offense?: In Van Do, the Court of Criminal Appeals recently had the opportunity to decide

this issue but the Court just wouldn't say whether it was anelement or an enhancement.

This confusing case should only be read for Judge Yeary'sdissent, where he correctly observed that the case "puts theonus on a defendant to object on the State's behalf when thejury charge fails to require the jury to find an essentialelement of a greater-inclusive offense, thus resulting in thedefendant's de facto conviction for a lesser-included offense. The Court accomplishes this by once again, as in Niles,converting Appellant's actual issue on appeal into a complaintabout the jury charge and then finding a lack of harm toAppellant stemming from this manufactured jury-charge error.But if there was truly jury-charge error in the case, it wasonly error from the State's perspective, not Appellant's. Andthe State-forfeited any such error by failing to raise it ina timely manner when the guilt phase instructions werepresented to the jury." Van Do v. State, 634 S.W.3d 883, 905(Tex. Crim. App. 2021)[dissent by Judge Yeary].

{Comment: Why would a defense attorney object to a Jury chargethat omits the "0.15" element from the charge that couldincrease the penalty range for the offense? Even after readingVan Do, what possible benefit could there be to the client? Atany rate, the majority concluded that the error was harmlessbecause the "0.15" allegation was uncontroverted and thedefendant didn't contest it during the trial. Even afterreading Van Do, I would be interested to see whether any ofyou readers would ever consider objecting to a court's chargethat omitted the "0.15" element. If you can think of a reason,please clue me in.}

D. DWI w/Child Passenaer is but One Offense Reorardless of the Nuinber of Child Passengers: Driving while intoxicated while achild is in the car is a state jail felony. The question inCook was whether, when two children were in the car, thedefendant committed one offense or two. Ex parte Cook, 630S.W.3d 65 (Tex. Crim. App. 2021). The Court of CriminalAppeals held that the proper "unit of prosecution" was thedriving, not the number of child occupants. The nature of theconduct was the act of driving and the presence of one or morechildren was only a circumstance surrounding the conduct.

E. Speedy Trial Dismissals: Mr. Conatser was arrested for DWI on August 29, 2018; he was released on bond the following day.Conatser's case was originally presented to the Grayson CountyDistrict Attorney's office (the DA's Office) on September 18,2018. At that time, the Sherman Police Department (theDepartment) requested that both alcohol and drug testing beperformed. The alcohol analysis was completed by the GarlandDPS Lab in December, and then the Department forwarded the

blood sample to the Austin DPS Lab for drug testing. The DA'sOffice followed up with the Department in September 2019, andagain in December 2019, but the Department had not receiveddrug-test results from the Austin lab. On March 25, 2020, theAustin lab's test results were finally forwarded to the DA'sOffice. The Austin lab report was dated May 19, 2019. At thespeedy trial hearing, the State represented that neither theDepartment nor the DA's Office had received the report untilmonths after that May 2019 date. State v. Conatser, 645 S.W. 3d925, 928 (Tex. App.-Dallas 2022, no pet. h.)

On April 8, 2020, the State filed an information chargingConatser with driving while intoxicated. On August 18, 2020,the trial court sent notice of an arraignment hearing to beheld September 10, 2020. Conatser filed his Motion to Dismissfor Speedy Trial Violation on September 9, 2020. The trialcourt heard the motion the following week and granted it onJanuary 22, 2021. The State appealed. Id.

The State has the burden to justify the length of the delay,while the defendant has the burden to prove he asserted hisright and has been prejudiced. The State conceded that thelength of the delay was sufficient to trigger a full Barker v.Wingo analysis. The reasons for the delay, including theinexplicable delays attributable to the lab and vague "COVID-19" issues, weighed "only slightly" against the State becauseno evidence was produced at the hearing as to any deliberatedelay by the State for any strategic gain. Id.

The 5th COurt of Appeals took the defense attorney to taskbecause the defense attorney did not assert his client's rightto a speedy trial "iinmediately" after his arrest or"immediately" after he was charged. In fact, he neverrequested a speedy trial, only dismissal of the charge againsthim. "If a defendant does not timely demand a speedy trial, wemust assume that he did not really want one." Id.

Filing for a dismissal instead of a speedy trial willgenerally weaken a speedy-trial claim because it shows adesire to have no trial instead of a speedy one. The 5th Courtof Appeals concluded that Conatser's failure to assert hisright to a speedy trial weighed against him. Id.

Finally, as to the fourth Barker v. Wlngo factor, Conatseroffered no testimony suggesting either that he was subject tooppressive pretrial incarceration or that his defense was inany way impaired by the delay. He testified only that heexperienced some amount of stress or anxiety. However,"evidence of generalized anxiety, though relevant, is notsufficient proof of prejudice under the Barker test,especially when it is no greater anxiety or concern beyond thelevel no-rmally associated with a criminal charge or

investigation. Id.

As to the vague discussion in Conatser regarding possible"Reason for the Delay" in the lab analysis that might havebeen attributable to the COVID-19 pandemic, a case from the 2ndCourt of Appeals made mincemeat of that argument in Black,where a DPS chemist testified that the pandemic never reallycaused much of a delay at the DPS Crime Lab:

At the speedy trial hearing, the DPS analyst who testedBlack's blood minimized the impact of COVID-19 on herjob. She testified that the lab continued to workthroughout the pandemic and "didn't completely shut down"at any time but merely "slow[ed] up" for a "few months"while the analysts "were sent home [to work] part []time."According to the analyst, well before the test wascompleted-by "May or June" of 2020-DPS analysts hadreturned and were working fulltime. So, based on theanalyst's testimony, even if the DPS analysts immediatelybegan working parttime on March 13, 2020, when the TexasGovernor issued a disaster proclamation regarding COVID,the lab's "slow up" could have lasted no more than two tothree months—until "May or June." See The Governor of theState of Tex., Proclamation 41-3720, 45 Tex. Reg. 2094,2094-95 (2020). And even then, the analysts were stillworking; the lab did not shut down. At most, the pandemicwas a contributing factor during approximately 90 of the175 days (roughly one-half) of DPS's delay.

Black v. State, No. 02-21-00057-CR, 2022 Tex. App. LEXIS 6079,at *12-13 (Tex. App.-Fort Worth Aug. 18, 2022, no pet.h.)(memorandum opinion not designated for publication).

Another recent case contained an interesting discussion of the"Reason for the Delay" that might be attributable to thepandemic's effect on trial courts' ability to conduct jurytrials during the pandemic. Although delay caused by thepandemic have not heretofore been attributed as fault to theState, procedures were in effect that might have provided foran in-person proceeding, had the State requested that thetrial court submit an operating plan to the Office of CourtAdministration (OCA) that complied with OCA's guidance forconducting such proceedings. Thus, while the COVID-19 epidemichad previously been considered to be a "neutral" reason, thereexisted an option that might have allowed the trial to havebeen held even during a pandemic. Consequently, this factorweighed slightly against the State in Lovelace. Lovelace v.State, Nos. 07-21-00146-CR, 07-21-00147-CR, 2022 Tex. App.LEXIS 6832, at *7-8 (Tex. App.-Amarillo Sep. 7, 2022, no pet.hist.) .

F. Expunctions in DWI cases: When I last spoke to you at the2021 Stu Kinard seminar, if you practiced in San Antonio,Houston [1st], or El Paso, and you obtained an acquittal fora client in a DWI case where the client had an earlier conviction for a DWI, then you could not obtain an expunctionfor that client for the later DWI acquittal. On the otherhand, if you practiced in Dallas or Fort Worth, you could getthat subsequent DWI acquittal expunged, although you couldhave counted on an appeal by DPS. It was up to the TexasSupreme Court to decide whether a citizen should be brandedfor life with a "Scarlet DWI," having made a single mistake inhis or her life.

The Texas Supreme Court finally answered this burning questionin Ex parte K.T. In K.T., the respondents were acquitted ofDWI. Both respondents sought expunction of the records relating to their arrests. Texas law authorizes such expunctions unless "the offense for which the person was acquitted arose out of a criminal episode," Tex. Code Crim. Proc. art. 55.01(c), and defines "criminal episode" as "the commission of two or more offenses" under specified circumstances. Tex. Penal Code § 3.01. Each respondent had a previous DWI conviction from at least three years before thearrest that led to acquittal. Ex parte K.T., 645 S.W.3d 198,201 (Tex. 2022).

The Texas Supreme Court held that an acquittal cannot qualifyas the "commission" of an offense. With only one "commission"for each respondent, there can be no "criminal episode" foreither. Without a criminal episode, the exception toexpunction does not apply. Id. Stated another way, anindividual cannot be convicted of an offense if one has been acquitted of that offense.

The Supreme Court employed the following reasoning: The Penal Code does not define the term "commission," so the ordinary meaning of that term governs our analysis."Commission" is the "[a]ct of committing, doing, or performing; act of perpetrating . . . ." Commission,Webster's International Dictionary (2d ed. 1953). Common sense and ordinary English usage both rebel at allowingthe State to treat someone as the committer, doer, performer, or perpetrator of a crime after a jury'sverdict of acquittal. With respect to their laterarrests, the State did not meet its burden to show that K.T. and C.F. committed, did, performed, or perpetrated the offense of driving while intoxicated beyond a reasonable doubt. The right to trial by jury, and thesanctity of the resulting verdicts, are fundamental to our legal system. Absent clear language to the contrary,

we 'cannot agree that the legislature would define"criminal episode" as the "commission" of multipleoffenses if it wanted to include offenses where a juryhas acquitted the defendant. Tex. Penal Code § 3.01.

Ex parte K.T., 645 S.W.3d 198, 203 (Tex. 2022).

There was a second question posed by DPS, whether two DWIoffenses, separated by over three years, are sufficientlylinked to form a common "criminal episode" under Penal Code §3.01(2). The Supreme Court declined to resolve that questionbut said,

...even if we had held that the DWI acquittal couldqualify as the "commission" of an offense, a "criminalepisode" would still not exist if the original convictionand the subsequent acquittal were insufficiently linkedto qualify as "the repeated commission" of DWI. We alsorecognize that the Fifth Court, sitting en bane in C.F.,relied on this ground, which remains the law in thatappellate district, while other courts of appeals haverejected that reading.

Ex parte K.T., 645 S.W.3d 198, 207-08 (Tex. 2022).

Shortly after the Supreme Court decided K.T., the San AntonioCourt of Appeals addressed The "second question" that theSupreme Court refused to address in K.T., that is whether anacquittal could ever become the basis for a "criminalepisode," and decided that it could in the circumstances ofJ.P., where the defendant was acquitted of what was actuallyhis fourth DWI. He had already been convicted of one priorfelony DWI! Ex parte J.P., No. 04-20-00100-CV, 2022 Tex. App.LEXIS 4204, at *15 (Tex. App.-San Antonio June 22, 2022, nopet. hist.).

The San Antonio 4th Court of Appeals held that, under CCP Art.55.01(c), J.P. was not entitled to expunction of the recordsrelating to the July 15 felony DWI "if the offense for whichhe was acquitted arose out of a criminal episode, as definedby Penal Code §3.01. San Antonio noted that the three DWIconvictions constituted a criminal episode under Penal Code§3.01(2), and they ruled that J. P.'s July 15 felony DWIcharged offense, for which he was acquitted, arose out of thatsame criminal episode. The 4th Court of Appeals held that J.P.was not entitled to an expunction order for the July 15 felonyDWI for which he was acquitted. They actually cited Ex parteK.T., 2022 Tex. LEXIS 404, 2022 WL 1510329, at *4, for asupposed rule that the State can block an expunction of anacquittal because it can "arise from" an already-identifiedcriminal episode. Id.

In a concurring opinion in J.P., Justice Rodriguez criticizedthe Supreme Court's reasoning in K.T. as to the "secondquestion," when the Supreme Court, obiter dicta, suggestedthat the State would have to prove that a link existed betweenthe offenses under Penal Code §3.01(2), but where thelegislature did not require such a nexus when it adopted the§3.01(2) definition of ncriminal episode." If no nexusrequirement is present in the statute, then how could theSupreme Court impose that requirement? She again called for alegislative fix, as many other jurists have done. Id.

A later opinion from the Dallas 5th Court of Appeals doeslittle more than follow the actual ruling in K. T. that anacquittal cannot serve as one of the predicate offenses inestablishing a criminal episode. Ex parte T.P.R., No.05-20-00607-CV, 2022 Tex. App. LEXIS 5150, at *5 (Tex.App.-Dallas July 25, 2022, no pet. hist.).

Maintaining- Professional Competence:{Note from YourAuthor/Keeping Up with the Law in the Information Age: As many ofthe "Old School" lawyers still remember, we once had our own StateBar Weekly Civil and Criminal Digests, consisting of summaries ofrecent appellate opinions that were mailed to us by the State Barof Texas. After we got Casemaker from the State Bar, we had a fineresource available to us in Casemaker Digest. It was veryuser-friendly. You could go to the Casemaker Digest, select Texascases, and applicable federal sources, and further limit yourupdate by topics of interest, such as "criminal" or "constitution,"select those topics, and get a list of case summaries for the week.It was an essential tool to keep up with recent "slip opinions"from the appellate courts before they finally made it into theAdvance Sheets or the "Significant Recent Decisions" in Voice forthe Defense. I was current with my Casemaker Digest through9/20/21. While preparing my paper for the 2021 Kinard, I tried tolook at the Casemaker Digest for the week of 9/27/21 and CasemakerDigest was gone!

IV.

Fastcase absorbed Casemaker but will Fastcase continue to provideTexas lawyers with a Digest of recent cases? If so, how will Iaccess it? After I raised this problem with the State Bar CLECommittee, I was told that Fastcase was working on a future digestand that the staff would let me know when Fastcase was ready tostart making it available to lawyers.

I realize that there are fewer lawyers these days who feel thatthey even need to keep up with recent case law, but the State Bar'smission should be to make sure that Texas lawyers at least have theresources available to keep up with the law. When I talk to theState Bar "CLE" staff people, I realize that they are mostlynon-lawyers who don't have a true appreciation of our need to keepup with very recent decisions, since they aren't in trials and

hearings anyway, where we can be completely embarrassed by a casethat was decided just yesterday.

We need to insist that the State Bar and Fastcase provide a Digest,sooner rather than later, since that is the most essential functionof the State Bar, in my own opinion. I had received some sort ofdigest of recent case law from the State Bar since I was licensedin 1978! While I was addressing the State Bar CLE Committee aboutthis issue, a staffer dropped a bomb on me that the CasemakerDigest had been prepared all along by workers in India! Yes,people, we were getting our case law digests prepared by someunknown person in India, who may, or may not, even be a lawyer inIndia!

For now, I have joined the Texas Independent Bar Association to getboth weekly, and daily digests of recent opinions from the Courtsof Appeals in the "Jasuta/Schulman Report." While John Jasuta andDavid Schulman do not cover unpublished opinions in their reports,they do provide links to all Courts of Appeals who have handed downany unpublished cases, which you may access through their daily andweekly reports.}

Stuart

Advanced

of

Punishments and Collateral Consequences of DWI Cases:

Lisa Greenberg Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 lisagreenberglaw@gmail.com

(Special Credit to Stephen Hamilton, Allison Clayton and Betty Blackwell for their original papers, and Gene Anthes for additional information)

This paper will cover the following topics:

I. Penal Consequences and Enhancements

II. Administrative Consequences

III. Economic Consequences of DWI Conviction

IV. Special Consequences

Introduction:

A DWI conviction comes with widely known immediate effects: a suspended driver’s license, jail time, fines, probation, alcohol and drug classes, ignition interlock or alcohol monitoring devices, etc. DWI arrests and their consequences also come with embarrassment, shame and the stigma of having a DWI as well. However, there are many long term consequences that are les known and need to be considered by the legal practitioner and the client.

If one practices criminal defense in Texas, we have a duty to not only be aware of the penal consequences of the crimes our clients are suspected of, we need to be cognizant and mindful of the collateral consequences as well. Most of us will know that a DWI offense can range from a Class B misdemeanor to a 3rd degree felony depending on the number of convictions a client may already have. Tex. Pen. Code Ann. §49.09. Fines can range from $2,000 up to $10,000 if convicted of one of these DWI offenses. Tex. Pen. Code Ann. §§12.22, 12.34.

The general public has less awareness of the collateral administrative system of decision making bodies who also punish someone suspected of committing a DWI offense. These administrative bodies purport to effectuate the legislature’s desire to deter moving alcohol offenses by forcing many collateral consequences on the defendant, and they usually attempt to punish the client monetarily or their ability to drive and travel with ease. Administrative bodies make one suspected of a DWI go through many hoops, including administrative hearings, to try and suspend licenses for those suspected of DWI crimes. These hearings are civil in nature and do not have the same constitutional protections as criminal law provides and generally use the preponderance of evidence standard.

There are also consequences not implemented by the government itself, but in the private sphere by private licensing agencies who determine whether someone is qualified to work in many fields. Further consequences can include loss of private employment, social and psychological effects, legal fees, as well as criminal history and family law implications.

When a criminal defense lawyer meets with a client who has pending DWI charges, it is important that they gather very basic, but important info such as: 1) are you a United States Citizen or what is your immigration status; 2) What is your occupation and do you have or are you pursuing any special licensing with that occupation; 3) Do you have future career goals that include licensing, further schooling, etc; 4) Do you have any prior convictions in this state or any others: 5) what is your financial situation; 6) Do you have any medical conditions, handicaps I need to be aware of?. These questions will help the defense lawyer in strategizing how to deal with the charges and what route is best to take in negotiations or whether a trial is necessary.

I.

Penal Consequences and Enhancements of DWI Convictions

Texas DWI Statute:

As we are all hopefully aware, Texas law does not prohibit drinking and then driving. It specifically prohibits impaired driving due to the introduction of any substances into the human body. Case law has further stated it does not take any kind of specialized training to determine impairment, and any reasonable person can recognize intoxication.

Generally, in the State of Texas, DWI is punishable as a Class B misdemeanor. Tex. Pen. Code Ann. §49.04 states: A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Similar offenses exists for performing other tasks while intoxicated such as flying, boating and assembling or operating amusement rides while intoxicated (See Penal Code Ann. §49.05 49.065).

In Texas, if a person is said to have had a .08 BAC level at the time of operation of the vehicle or at any reasonable time thereafter, the Texas DWI statute is invoked and typically the person is prosecuted for the per se violation of the law. See Tex. Pen. Code Ann. §§49.01(2)(B), 49.05. Another method used by the State to prove a DWI is to show that the accused was ‘intoxicated” within the meaning of 49.04 of the Penal Code. Intoxicated is defined as:

Not having the normal use of mental or physical faculties by reason fo the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Tex. Pen. Code Ann. §49.01(2)(A)

This means in lieu of evidence showing the Defendant had a BAC/BrAC of .08, the State may prove a DWI case by showing that the defendant lsot he normal use of his mental or physical faculties. This alternate definition allows the State to prosecute those who are intoxicated by prescription drugs, illicit drugs or a small amount of alcohol, or a combination thereof.

Statutorily, no culpable mental state is required. One does not even need knowledge of consumption or intoxication to convict a person for DWI. A per se violation is a strict liability or status offense for which few, if any, defenses are available. Statistics show that increased punishment does not work to generally deter people from committing DWI offenses, deterrence remains the purported basis for these strict liability impositions and administrative penalties.

The Law, in General: Tex. Pen. Code Ann. §49.04(b) states: “Except as provided by Subsections (c) and (d) and Section 49.04, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.” Section (c) increases the minimum term of confinement of six days when the person operating the motor vehicle has an open container of alcoholin the person’s immediate possession. Id. §49.04(c). Section (d) increases the offense from a Class B to a Class A misdemeanor “if it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.” Id. §49.04(d). These two sections provide a statutory mechanism to increase the punishment for DWI under the specific, particular circumstances.

There are also several enhancement or enhancement like provisions to the Texas DWI statute. We know, generally, the first DWI offense is a Class B misdemeanor and the 2nd offense is a Class A misdemeanor. The second offense is treated much like a felony enhancement in that evidence of the prior conviction is admissible at the punishment stage of trial, not guilt/innocence.

Prior convictions need not be from Texas, they may occur in “another state” and be used for enhancement purposes. Case law has interpreted this to include prior DWI convictions in federal court even though the United States is not technically “another state”.

Tex. Penal Code Ann. §49.09 (a) serves a similar purpose of enhancement by increasing the severity of the offense to a Class A misdemeanor with a minimum term of confinement of 30 days where there is one previous conviction under 49.0(DWI), 49.05 (Flying While Intoxicated), 49.06 (Boating While Intoxicated), or 49.065 (Assembling or Operating Amusement Ride While Intoxicated).

Proof of a prior intoxication manslaughter conviction is another way a DWI charge can be enhanced to a felony charge. The legislature in 2001 added Section (b) to 49.04 to make a DWI a 3rd Degree felony when the Defendant has been previously convicted of Intoxicated Manslaughter under 49.08.

Although not available in all states, in Texas, we have the right to a jury trial on DWI offenses at the request of the Defendant. However, jury trials are much more costly and time consuming than pre trial remedies. They can also cost the client more days of work and stress than knowing what the outcome should be under a pretrial remedy

Intoxication Assault and Intoxication Manslaughter are two serious offenses that can stem from an original DWI offense. The commission of either implicates greater penal and collateral consequences for the defendant. There are further specific enhancements if the victim of the defendant’s actions was a police officer or other local government official. The heightened consequences of DWI that results in bodily injury in death or more serious in nature and come with greater penalties and consequences such as seriousness of the charge, jail time, fines, fees, availability of pretrial remedies and probation. These offenses are punishable as felonies and carry up to $10,000 in fines. The statutes for these offenses are below:

Section 49.07 Intoxication Assault:

(a) A person commits an offense if the person, by accident or mistake:

(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Section 49.08 Intoxication Manslaughter

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.

Deferred Adjudication:

Deferred adjudication has caused quite a buzz amongst prosecutors, judges and defense lawyers since it was brought back as an option in 2019. The new law went into effect on September 1, 2019, permitting prosecutors to offer deferred adjudication for DWI offenses. Tex. Code Crim. Proc. Ann. Art 42A.102 allows first time DWI offenders to receive deferred adjudication. The requirements are that the defendant must have a BAC of less than .15 and cannot have caused any property damage or personal injury. The defendant must also not hold a commercial driver’s license or commercial learner’s permit. It requires the defendant to have an interlock device on his vehicle and he must agree not to operate any vehicle without the interlock Tex. Code Crim. Proc. Ann. Art 17.441(a). If those prerequisites are met, the deferred resolution is available. However, it is important for the criminal defense lawyer to note that this is not a true deferred as the conviction can still be used later for enhancement purposes. See Tex. Pen. Code Ann. §49.09(g). This is important to inform your client of as well in order to make a decision on how to best handle the DWI case. However note: the possibility of a non disclosure should be discussed with your client as a possible benefit.

Probation:

For repeat DWI offenders, the offenses will get progressively more serious and the jail time is increased. A second DWI conviction is considered a Class A misdemeanor and carries a minimum of 30 days in jail and maximum year long sentence. No deferred is available for a DWI 2nd, however, if desirable to the client and defense lawyer, a workaround can be found by pleading a second DWI as another DWI 1st. to do this you simply strike Section 49.09’s enhancement language from the plea. A 3rd conviction for DWI is considered a 3rd degree felony and is punishable by 2 10 years in prison and up to a $10,000 fine.

Probation is an option for DWI defendants who want to stay out of jail but would otherwise be convicted and spend minimum time periods prescribed by statute in jail. Typically, a plea offer for a first offender includes probation (usually about a year in Nueces County),

community service hours (there is no mandatory minimum hours anymore), drug and alcohol classes (8 40 hours), a substance evaluation by probation (called TAIP in Nueces County) and a MADD created Drunk Driving Impact Panel course.

Prosecutors are less likely to recommend probation for repeat offenders, especially if your client was not successful on probation in the past. For a 2nd DWI, a probationary period of 1-2 years (2 years typically in Nueces County) is common. For DWI 3rds and above, the offers get more strict, including longer periods of probation, fines, classes, and conditions. For felony DWI convictions, the probation period is heightened to somewhere between 3 5 years typically and in Nueces County the recommendation of SAFP, or the Substance Abuse Facility is prescribed as part of a plea deal. This is a 9 month program, typically with graduating to a half way house, in essence 9 12 months of mandated incarceration. As with most cases, this practice varies from county to county in Texas and based on the Judge’s preferences.

Probation is the most common form of punishment DWI defendants receive with a plea offer. This is because probation allows the state to monitor your client and incarcerating DWI suspects offers little to no benefit to society in most cases. Although some clients feel relief that they are not going to be incarcerated again or in prison, it comes with its own risks and costly, tedious requirements. Further, statistics show clients accused of DWI’s tend to be better educated, older and economically more secure than most criminal offenders, so society does not benefit from incarcerating such citizens.

DWI penalties, even for first offenders in Texas, often include an Ignition Interlock Device which must be installed and maintained. This is a machine that records yoru BAC and allows the vehicle to start only if your BAC is below a set limit. These devices are costly to install (typically between $100 $200) and the monthly “rental” fees are usually between $70 100. Regular maintenance and calibration also costs extra.

The device is installed and monitored in compliance with terms of the plea deal or the judge has ordered it during sentencing. In each county, probation typically contracts with prescribed companies to monitor via their equipment. Typically, a plea deal requires an interlock device for between 6 12 months. Most pretrial diversion programs for DWI also have this requirement. The devices can be very costly to an already vulnerable defendant. This device is use during the probationary period to help the court ensure future compliance with the law against drinking and driving.

For many clients, the issue of jail time or probationary time is the most critical to their interests. Most working clients or students want to avoid time in jail or time spent on probation. Typically, repeat offenders will spend some time in jail, most in the form of a sanction.

Classes, Community Service, Fees and Charitable Donations:

Typically, most defendants have the requirement of drug and alcohol awareness classes in the terms of their probation, or their sentences. If they are a repeat offender, the courts and prosecutors are more likely to require rehabilitation conditions. The courses required are offered by various companies that are approved by the State of Texas. The fees can range from $80 to

hundreds of dollars depending on the location and availability. They can range from 8 12 hours long for first time offenders.

More habitual offenders may be ordered to attend a DWI intervention program. These classes cost more and can require 32 40 hours in the class. Something to note is that if these courses are in person, and your client’s license is suspended, this can add much hardship to complete, including time away from work and transportation to the courses.

Something that is not often discussed is the psychology of requiring such courses. These courses can emphasize the negative societal consequences of drinking and driving and may offer many examples of tragedies caused by DWI’s. Such constant negative conditioning can lead a client to feel ostracized from society, further guilt, depression and possibly further excalation into substance abuse.

Community service is always part of any DWI plea deal because it is supposed to allow the offender to provide society a service free of charge. The number of hours varies between clients or the prosecutor’s desires. Community service requirements are set out in detail of Article 42A.304 of the Code of Criminal Procedure.

(a) A judge may require as a condition of community supervision that the defendant work a specified number of hours at one or more community service projects for one or more organizations approved by the judge and designated by the department. The judge may not require the defendant to work at a community service project if, as determined and noted on the community supervision order by the judge:

(1) the defendant is physically or mentally incapable of participating in the project;

(2) participating in the project will cause a hardship to the defendant or to the defendant's dependents;

(3) the defendant is to be confined in a substance abuse felony punishment facility as a condition of community supervision; or

(4) there is other good cause shown.

(b) The amount of community service work ordered by the judge may not exceed:

(1) 1,000 hours for an offense classified as a first degree felony;

800 hours for an offense classified as a second degree felony;

(3) 600 hours for

an offense classified as a third degree felony; or

b. an offense under Section 30.04, Penal Code

(4) 400 hours for an offense classified as a State Jail Felony;

(5) 200 hours for:

(A) an offense classified as a Class A misdemeanor, other than an offense described by Subdivision (3)(B); or

(B) a misdemeanor for which the maximum permissible confinement, if any, exceeds six months or the maximum permissible fine, if any, exceeds $4,000; and

(6) 100 hours for:

1. (A) an offense classified as a Class B misdemeanor; or

2. (B) a misdemeanor for which the maximum permissible confinement, if any, does not exceed six months and the maximum permissible fine, if any, does not exceed $4,000.

(f) Instead of requiring the defendant to work a specified number of hours at one or more community service projects under Subsection (a), the judge may order a defendant to make a specified donation to:

(1) a nonprofit food bank or food pantry in the community in which the defendant resides;

(2) a charitable organization engaged primarily in performing charitable functions for veterans in the community in which the defendant resides; or

(3) in a county with a population of less than 50,000, another nonprofit organization that:

(A) is exempt from taxation under Section 501(a) of the Internal Revenue Code of 1986 because it is listed in Section 501(c)(3) of that code; and

(B) provides services or assistance to needy individuals and families in the community in which the defendant resides.

II.

Administrative Consequences:

When clients come into my office, many are aware of the criminal consequences of DWI offense, but not the administrative consequences that are pending as well. The mere arrest for suspicion of DWI comes with the very likely revocation of the driver’s license. Once arrested for a DWI offense, there are two scenarios where the person’s driver’s license will be immediately revoked: 1) if he refuses to submit to a blood or breath test and (2) if he does submit to testing if his BAC level is shown to be .08 or higher.

A. Suspension for Refusal to Submit A sample:

Even if DWI charges do not get filed criminally, or are later dismissed, the mere refusal to submit to a breath sample results in some significant consequences. The Texas Transportation Code provides for an automatic suspension of a person’s driver’s license if that person refuses to provide a chemical sample to a peace officer upon arrest. The code provides:

1. (a) If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall:

(1) suspend the person’s license to operate a motor vehicle on a public highway for 180 days; or

(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days.

(b) The period of suspension or denial is two years if the person’s driving record shows one or more alcohol related or drug related enforcement contacts, as defined by Section 524.001(3), during the 10 years preceding the date of the person’s arrest.

(c) A suspension or denial takes effect on the 40th day after the date on which the person:

(1) receives notice of suspension or denial under Section 724.032(a); or

(2) is considered to have received notice of suspension or denial under Section 724.033.

TEX. TRANSP. CODE ANN. § 724.035.

B. Suspension if Specimen Given and Over .08:

As we all are all aware, even if a person’s BAC is under .08 he can still be prosecuted for DWI. However, one benefit of having a BAC less than .08 is that he will not get his driver’s license automatically suspended. Of course, this means if he does agree to the test and his BAC is over .08, his license is going to be suspended. The suspension is for 90 days when there have not been any prior alcohol related or drug related enforcement contacts during the 10 years preceding the date of the DWI arrest and one year if the person’s driving record shows one or

more alcohol related or drug related enforcement contacts during the 10 years preceding the date of the person’s arrest. TEX. TRANSP. CODE ANN. § 524.022.

Minors: minors violating this statute can expect to have their licenses suspended for 60 to 180 days and can be outright refused an occupational license if they have violated the statute previously. Id. § 524.022(b).

1. (a) A period of suspension under this chapter for an adult is:

(1) 90 days if the person’s driving record shows no alcohol related or drug related enforcement contact during the 10 years preceding the date of the person’s arrest; or (2) one year if the person’s driving record shows one or more alcohol related or drug related enforcement contacts during the 10 years preceding the date of the person’s arrest.

(b) A period of suspension under this chapter for a minor is:

(1) 60 days if the minor has not been previously convicted of an offense under Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.045, or 49.06, Penal Code, or an offense under Section 49.07 or 49.08, Penal Code, involving the operation of a motor vehicle or a watercraft;

(2) 120 days if the minor has been previously convicted once of an offense listed by Subdivision (1); or

(3) 180 days if the minor has been previously convicted twice or more of an offense listed by Subdivision (1).

(d) A minor whose driver’s license is suspended under this chapter is not eligible for an occupational license under Subchapter L, Chapter 521, for:

(1) the first 30 days of a suspension under Subsection (b)(1);

(2) the first 90 days of a suspension under Subsection (b)(2); or

(3) the entire period of a suspension under Subsection (b)(3).

TEX. TRANSP. CODE ANN. § 524.022.

Administrative License Revocation Hearings (ALR Hearings):

Administrative License Revocation Hearings or ALR hearings are administrative hearings involving the Department of Public Safety (DPS) where DPS argues to an administrative judge that DWI suspect’s license should be revoked. These are often overlooked by a lay person because to get a hearing there is a requirement that the request for this hearing must be filed no later than the 15th day after the date on which the person receives notice of

suspension under Section 524.011. DWI. If the person fails to request a hearing within 15 days of the suspension, then he will not be able to defend against the suspension. TEX. TRANSP. CODE

ANN. § 524.031. This is why it is so important a person charged with DWI seek legal help quickly after their arrest.

Defendants are allowed to be represented at these hearings in order to defend their license against suspension. However, the rate of success for opposing suspension at these hearings is generally very low. This is primarily because in ALR hearings DPS representatives are only required to prove that its more likely than not (by a preponderance of the evidence) that they are correct on the issues of the hearing.

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

1. (A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place or while operating a watercraft; or

2. (B) the person was a minor on the date that the breath or blood specimen was obtained and had any detectable amount of alcohol in the minor’s system while operating a motor vehicle in a public place or while operating a watercraft; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

2. (b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

3. (c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

1. (1) return the person’s driver’s license to the person, if the license was taken by a peace officer under Section 524.011(b);

2. (2) reinstate the person’s driver’s license; and

3. (3) rescind an order prohibiting the issuance of a driver’s license to the person.

4. (d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person’s breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or

(2) the person was a minor on the date that the breath or blood specimen was obtained and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

5. (e) The decision of the administrative law judge is final when issued and signed.

EX. TRANSP. CODE ANN. § 524.035.

DPS has the burden of proof at an ALR hearing. Once a driver or his attorney has made a timely request for an ALR hearing, this tolls the suspension of the license until the Department of Public Safety proves the previous elements by a preponderance of the evidence at the hearing. Although these hearings are generally not successful in reinstating the defendant’s license, they may be a good opportunity for defense counsel to review the discovery in the case and prepare for the motions and plea deals from the DA’s office. In many jurisdictions it can be an opportunity for the first look at the reports and videos. Remember though that these proceedings are independent of each other. You can get your criminal charges dismissed and lose an ALR hearing resulting in a license suspension or you can win the ALR hearing and keep your client’s license and still be convicted of a DWI.

Superfines:

What is a superfine? Before 2019, DPS had a surcharge system where DWI defendants paid additional costs for three years each time they needed to renew their license after conviction. The system was designed to discourage people from DWI’s by punishing convictions monetarily but the effect was to prevent poorer people from being able to renew their licenses. Ultimately the effect was that those who could not afford to pay the fines chose not to renew their licenses and drove on suspended or invalid licenses, compounding the problem instead of causing the deterrent effect that was desired. This led to even greater problems for those convicted. In September of 2019, the superfine system was initiated.

These superfines are

$3,000: first conviction within a 36 month period

$4,500: second or subsequent conviction within a 36 month period

$6,000: first or subsequent conviction if BAC is more than .15

Tex. Transp. Code Ann. §709.001(b).

These fines apply to people who are “finally convicted.” It is important to note that probation is not considered a “final conviction”:

It is well established that under Texas law only convictions that are “final” can be used for enhancement purposes. It is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not available for enhancement purposes.” The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked.

Ex parte Pue, 552 S.W.3d 226, 230 31 (Tex. Crim. App. 2018) (internal quotations omitted).

Courts should only impose the superfines to cases where someone is actually incarcerated for the crime- either because they were sentenced or because probation was revoked. SO, if

someone receives community supervision (straight or deferred) and successfully completes probation, these superfines should not apply. Another important consideration is that there is a provision of waiver of the fees upon a showing of indigency:

A person must provide information to the court in which the person is convicted of the offense that is the basis for the fine to establish that the person is indigent. The following documentation may be used as proof:

(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;

(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or

(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;

(B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;

(C) the medical assistance program under Chapter 32, Human Resources Code;

(D) the child health plan program under Chapter 62, Health and Safety Code; or (E) the national free or reduced price lunch program established under 42 U.S.C. Section 1751 et seq.

III.

Economic Consequences of DWI Conviction:

After all the above hardships, DWI arrests and convictions ultimately have the penalty of an economic hardship to the client. One accused of a DWI likely has been arrested, made bond, had his license suspended, hopefully hired a defense attorney and likely been placed on probation. The fines as discussed above can be up to $2,000 for a first time DWI and as much as $10,000 for a felony DWI.

A study was done by Austin based Sherry Matthews Advocacy Marketing on behalf of TxDOT in 2006. 30 people were interviewed, including prosecutors, a representative from Texas Department of Public Safety and five DWI offenders, county clerks and defense attorneys in 15 of Texas’ most populous counties. In summary, the costs can vary due to

individual counties setting their own court costs and fees, but ultimately the total costs of conviction and arrest can range from $5,000 to $24,000 for a first time offense. It is important to note these are a snapshot of DWI’s with no accidents or injuries, so those costs would be much higher.

Effect on Employment:

This is where DWI practitioners and defense attorneys in general need to be careful and aware. There are many adverse effects to client’s current and future employment upon being simply arrested for DWI. Naturally, the arrest and court dealings affect the productivity of one accused. Most employers frown upon DWI arrests and may think twice in the hiring or retention of someone with this criminal history. Potential employers may worry about the prospect of having someone with a possible chemical dependency issue or who may be no probation with required attendance at classes, community service and court appearances to deal with. Some employers may have protocols mandating the termination of employment for those with DWI convictions or arrests. They may not allow the employee to use company vehicles or equipment, which may cause significant decrease in their hours or employment status. DWI’s can negatively affect a person’s chances of being accepted into or finishing college or some graduate programs. Without a complete education or diploma, this can affect a client’s long term earning potential and affect their ability to pay all the fines and fees mentioned above.

Convicted clients may also struggle to decide whether to disclose such criminal history because of the effects mentioned above. Because a DWI conviction can have a prejudicial effect on employment decisions, some clients may choose not to disclose. If an employer sees the arrest or conviction in their background check, the person may be excluded or terminated for not disclosing.

Specifically, a DWI conviction precludes defendants from being employed as: EMT’s, peace officers, driver of hazardous materials, or any job requiring a CDL. Many occupations involve professional or state licenses or certifications that can disqualify a potential job applicant. Some of those include medical licenses, teaching certificates, attorneys, nurses/nurse practitioners, real estate professionals, security license holders, dental professionals and financial industry professionals.

Felony convictions have an even bigger ripple effect of consequences. A DWI 3rd or intoxication assault conviction makes someone subject to felony restrictions and bans them from these employment opportunities: labor union officers or organizer; pesticide applicator; court interpreter; meat and poultry inspector; auctioneer; athletic trainer; insurance agent or adjuster; interior designer acupuncturist; midwife; mortgage broker; speech/language pathologist; hearing aid fitter or distributor; physical therapist; dental hygienist; marriage or family counselor; monitor or aid on school bus; registered nurse; chiropractor; physician’s assistant psychologist; private security detection device sales person; bingo worker, supply manufacture or distributor; coin operated machine business licensee; and many others.

Clients who are fortunate enough to keep their employment status through understanding employers can still lose valuable work time and hours, wages due to having to carry out the

requirements of lengthy or multiple court appearances, mandated classes, community service, counseling and jail time. There is also the consideration of driver’s license mandates. If your client’s license is suspended and they are unable to afford the insurance or unable to get an occupational driver’s license or temporary hardship license they may have issues getting to and from work and have to factor in the additional cost of transportation to work or school.

DWI convictions and even the mere arrests can cost a defendant their education, CDL, their current or future job and at a minimum make it harder for a person to be employed in several occupational fields.

Legal Fees:

One of the initial and most obvious economic effects of a DWI case is in defending the charges against your client. In Texas, legal fees for first time DWI cases can range from as little as $1,200 to as much as $10,000 and more depending on the nature of the case and the client’s occupational license situation. Most of the time DWI cases do not go to trial, however if they do the fees begin to increase depending on the quality and experience of the lawyer. Remember, many need expert assistance in trial on things such as toxicology, traffic patterns and accident causes, etc.

Insurance Coverage:

This is a significant collateral consequence that needs to be considered as well. A DWI conviction will likely raise the defendant’s insurance premiums and coverage. Many insurance companies will not even sell a policy to someone with a DWI conviction. As a result of a DUI, your client may now be considered a high-risk driver which may result in higher or additional fees, or cancellation of their insurance policy. Many companies charge DWI offenders two to three times more for coverage and it may take years and perfect driving records for that rate to be reduced.

Additionally, after a driver’s license suspension, the client’s insurance company has to file a SR 22 form and get a copy to file with their local DMV. Some insurance companies do not offer SR 22 policies because of the risk involved and other companies may offer high premium polices for SR 22 customers. This puts the client in a difficult situation because they may not be able to get a driver’s license or renew without an SR 22 insurance verified form. The State of Texas wants to make sure that any convicted DWI driver has insurance on file before they can have drivers licenses reinstated. Further, it may be a condition of your clients probation that they have a valid license and car insurance.

IV. Special Consequences:

Felony DWI Convictions:

As with any felony conviction there are many consequences to a person’s liberty. A felony will permanently stay on your client’s criminal record. Many states do not allow even a DWI Misdemeanor to be expunged and want it to stay on a record for enhancement purposes,

etc, regardless of how much time has passed since the conviction date. Employers and landlords, volunteer organizations etc. may see these convictions and disqualify a person from renting or participating in employment or the opportunities they want to be a part of.

Several personal liberties are affected by a felony conviction such as the right to vote, purchase a firearm (although not necessarily owning one see new case law under debate currently in Texas) or obtaining a passport. You may also be ineligible for future government assistance, housing and if you are not a citizen you may face deportation (this is a whole topic in itself that needs exploring further if you have such a client situation). Your voting rights are affected by a final felony conviction. A felony DWI convict cannot vote in any Texas election until the successful completion of all terms imposed under their sentence or a pardon is granted in their favor. Once the sentence is fully served, the voting rights are automatically restored or if a judge chooses to exercise judicial clemency based on successful completion of felony probation or other factors. Serving on a jury has requirements that are different than those of voting rights. Section 61.102 of the Government Code provides that a person who is finally convicted of a felony is not eligible to serve on a jury and the right is not automatically restored as in voting rights. If a judge chooses to exercise judicial clemency they can restore a person’s eligibility to serve on a jury. Finally, running for public office can be precluded by a felony conviction. Section 141.001 of the Texas Election Code provides that a person must not have been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities to be eligible to be a candidate for public office. There is no automatic restoration of this right, unlike voting rights, absent a pardon or judicial release to run for political office.

Travel Restrictions:

From the website: https://www.duicanadaentry.com/uncategorized/canada-dui-entry-2019-whatyou need to know faq/

Canada:

Can you go to Canada with a misdemeanor DUI? Canada does not use misdemeanors and felonies to classify offenses. Instead, offenses are classified as a summary or indictable offense, with a summary being the most similar to a misdemeanor, and an indictable offense being the most similar to a felony. A DUI is considered to be a hybrid offense in Canada, and at the discretion of a Crown attorney to decide. According to the Immigration and Refugee Protection Act, 36(3)(a) “an offense that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense, even if it has been prosecuted summarily.” Therefore while a DUI is not always considered to be an indictable offense, regardless of whether it is a misdemeanor in the US, it can render you inadmissible to enter Canada.

Can a United States citizen enter Canada with a DUI?

A US citizen can enter Canada with a DUI temporarily if they apply for a Temporary Resident Permit, or permanently through the process of a Criminal Rehabilitation. A valid Temporary

Resident Permit must be presented at the border upon entry to Canada, while those who hold a finding of a Criminal Rehabilitation do not need to present any permit, as the finding permanently removes the inadmissibility from their file.

Can someone with a DUI conviction in the us travel to Canada?

U.S. citizens are the only worldwide citizens who do not require an eTA to travel by air, which means that they are the only ones who can present a Temporary Resident Permit at the airport.

For those outside of the U.S. who have a DUI conviction, the only way to get into Canada is to fly into the U.S. and then drive to the Canadian border with a Temporary Resident Permit.

Additionally, Canada has front line access to the National Crime Information Center database, which makes American offenses easier for border agents to detect.

Can you enter Canada with a DUI after 10 years?

If an individual was considered Deemed Rehabilitated for a DUI before December 2018, they may still be allowed entry into Canada without a Temporary Resident Permit or a Criminal Rehabilitation, however they should always consult with a Canadian immigration lawyer to see if they qualify for grandfathered Deemed Rehabilitation.

As of December 2018, a DUI is considered a serious crime in Canada, and no longer qualifies as an offense that is automatically Deemed Rehabilitated after 10 years. As a result, a US citizen with even a single DUI/DWI that occurred more than a decade ago can still be denied entry into Canada.

Other consequences family law, etc.:

You need to ask the right questions to determine if your client has any other considerations to discuss, such as family law and civil cases. If they have DFPS looking into their home life, or an ex suing them for custody. Things like negligence lawsuits etc. may need to be considered as well.

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