Archive for the ‘Criminal Appeals’ Category

CCA Overrules Clewis’s Factual Sufficiency Review

Sunday, November 14th, 2010

In a splintered decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), which provided for review of a jury verdict in a criminal case for factual sufficiency of the evidence.  Judge Hervey wrote the plurality opinion announcing the judgment of the Court, joined by Presiding Judge Keller and Judges Keasler and Cochran.  Despite joining the plurality, Judge Cochran also filed a concurring opinion, in which Judge Womack joined.  Judge Price filed a dissenting opinion, joined by Judges Meyers, Johnson, and Holcomb.

Judge Hervey’s opinion begins by stating that the Court was called consider whether “there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia and a factual-sufficiency standard underClewis v. State and whether there is a need to retain both standards.”  Judge Hervey concluded that “these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both.”  Thus, the plurality would overrule Clewis and hold that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”

Judge Hervey wrote that the distinction between these two standards was supposed to be that in a legal sufficiency review, the court views the evidence in the light most favorable to the verdict, while in a factual sufficiency review, the court views the evidence in a “neutral light.”  Judge Hervey noted that Clewis, however, required reviewing courts to afford “’appropriate deference’ to the jury’s credibility and weight determinations.”  Judge Hervey concluded that, by requiring “appropriate deference” to a jury’s credibility and weight determinations while also requiring a neutral review of the facts, Clewis’s factual-sufficiency standard was contradictory and “barely distinguishable” from the Jackson legal-sufficiency standard.

Judge Cochran’s concurrence expressed the view that adopting Clewis in the first place was a misguided attempt to apply civil standards of evidentiary sufficiency to criminal cases, which require proof beyond a reasonable doubt.  “The evidence in this case is either sufficient to support appellant’s conviction under the constitutionally-mandated Jacksonstandard or it is not.  It cannot be ‘semi-sufficient.’”  Thus, Judge Cochran and Judge Womack agreed that “it is time to consign the civil-law concept of factual sufficiency review in criminal cases to the dustbin of history.”  The result:  five members of the court agreed that Clewis has no place in Texas jurisprudence, and factual sufficiency review is dead.

The dissent argued that the Court could not eliminate factual sufficiency review, “which has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas,” in the absence of a constitutional or statutory change.  The dissent disagreed that legal and factual sufficiency standards of review were “barely distinguishable,” explaining:

Deference is not an all-or-nothing proposition.  A reviewing court may look to the record without the requirement of resolving conflicts and ambiguities in the light most favorable to the jury’s verdict and still limit the exercise of its power to reverse and remand for a new trial in the interest of justice, out of deference to the jury’s verdict, to those cases in which the State’s evidence is most tenuous or the weight of the evidence greatly preponderates against conviction.  The qualified deference that we have said first-tier appellate courts should pay to jury verdicts does not somehow convert factual sufficiency review into legal sufficiency review.

The many facets of this opinion, and in particular, the ramifications for legal sufficiency review under Jackson afterBrooks, are too involved to discuss in one blog post.  For example, because the majority of the court believes that theJackson and Clewis standards are the same, it could be argued that the Jackson standard allows courts of appeal to resolve conflicts in the evidence by requiring the evidence to allow a “rational” decision by the jury.  If so, defendants may be able to obtain an acquittal based on what is essentially a factual sufficiency argument, where under Clewis, they could have only received a new trial.  The winter issue of The Appellate Advocate will feature an excellent (and positive) analysis of Brooks by Ricardo Pumarejo, Jr., titled “Clueless Over Clewis or: How I Learned to Stop Worrying and Welcome Brooks v. State.”  Stay tuned!

 

Use of K-9 Units at Traffic Checkpoints

Tuesday, October 26th, 2010

On petition for discretionary review, the Texas Court of Criminal Appeals approved the use of K-9 units at a stationary traffic checkpoint implemented with the stated purpose of merely identifying unlicensed and uninsured drivers.

Lujan was traveling through El Paso with a passenger, when he came upon a stationary traffic checkpoint set up by local police.  Lujan did not have a driver’s license.  He was asked to pull over and was questioned about his activities that night.  The officers discovered that Lujan’s passenger had outstanding warrants, and the passenger was removed from the vehicle.

Deputy Hernandez, who was assigned to the checkpoint, testified that the checkpoint’s purpose was to detect unlicensed and uninsured drivers.  Hernandez’s police unit included a K-9 handler, who was also present at the checkpoint.  According to one of the officers, Lujan began acting extremely nervous.  A pat-down search revealed over $1,000 in Lujan’s pockets.  The officers obtained permission to search the vehicle, and the K-9 unit immediately alerted to the presence of drugs.  Drugs were then discovered hidden in the car’s door panel.  On cross-examination, Deputy Hernandez testified that his unit is not merely a traffic unit but is a criminal interdiction unit that handled “multiple tasks including racing, DWI, traffic enforcement, and narcotics.”  Another officer testified that the unit would investigate any violations they uncovered, not just unlicensed or uninsured motorists.

The trial court denied Lujan’s motion to suppress, and the El Paso Court of Appeals reversed.  The El Paso court cited the well-established rule that a traffic checkpoint may be used to detect unlicensed or uninsured motorists, but a checkpoint whose primary purpose is to detect general criminal wrongdoing is impermissible under the Fourth Amendment.  The court determined that the use of K-9 units and the testimony that any violations uncovered would be investigated rendered this traffic checkpoint unconstitutional.

A majority of the Court of Criminal Appeals disagreed in an unsigned, per curiam opinion, with Judge Johnson concurring and Judge Meyers dissenting.  The majority held that the trial court’s duty was to inquire of the checkpoint’s “primary” purpose, and because this question was a mixed question of law and fact, the trial court was within its discretion to determine that the primary purpose was to detect unlicensed and uninsured drivers.  While the officers’ testimony conflicted, the trial court had discretion to resolve the conflict.  Because the primary purpose of the checkpoint was permissible, the officers were entitled to consider other violations that they discovered.

Judge Johnson concurred, noting that the presence of the K-9 unit undermined the State’s alleged primary purpose:

El Paso County deputy sheriffs set up a checkpoint, ostensibly to target uninsured and unlicensed drivers.  That claim is undermined by the presence of a drug dog at a checkpoint near the Mexican border and I-10, a known route for drug transport.  Drug dogs are trained to detect the presence of illegal drugs; they are less useful for sniffing out expired driver’s licenses.  Mere membership in the assigned unit does not adequately explain the dog’s presence.  The assigned unit was not a traffic unit; as the majority notes, it had multiple duties, including racing prevention, DWI, traffic enforcement, and, notably, narcotics.  The deputies’ regular responsibilities and specialized training were not relevant to a checkpoint for only licenses and insurance, and if the checkpoint were truly for only licenses and insurance, the dog would be a valuable resource wasted and better used at a location where its specialized skills were in demand.  I agree with the court of appeals that the checkpoint was a subterfuge for general criminal enforcement.

Judge Johnson concurred with the result, however, because Lujan was subject to arrest for driving without a license.  Thus, further detention was justified, and thereafter, a reasonable suspicion of criminal activity developed due to Lujan’s possession of a large amount of cash and his nervous behavior.  Furthermore, he consented to the search, so the drugs would have been discovered even if the K-9 unit had not been present.

Judge Meyers dissented, believing that the primary purpose of the checkpoint was to detect evidence of ordinary criminal wrongdoing:

The checkpoint in this case included a K-9 unit.  So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers’ licenses and insurance, then the deputies did not need drug-sniffing dogs.  This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight.  Based upon the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was to “uncover evidence of ordinary criminal wrongdoing,” in contravention of the Fourth Amendment.