Can Police Search My Cell Phone?

By: Kara L. Carreras

Recently, the United States Supreme Court handed down a decision related to searches and seizure of cell phones and their data contents. With the ever-changing technological advances related to cell phones and wireless technology what is considered private?
The Fourth Amendment of the U.S. and Texas Constitution afford people the right to be protected from unreasonable searches and seizures. That means that searches without a warrant are generally illegal. So how do you determine what is a reasonable and unreasonable search?

To secure a warrant, police need to have knowledge of facts and circumstances that reasonably lead them to believe a person has committed a crime. For example, an officer sees or smells marijuana, or the person admits he has marijuana are facts and circumstances that would lead a reasonable person to believe that the crime of possession of marijuana has been committed. That is an easy example but that is the basics of probable cause.

But what about your cell phone? Can police just seize that phone and comb through your personal content, contacts, etc.? The government has argued several times that cell phone content and digital history should be subject to many of the warrant exceptions of the Fourth Amendment, but over and over we have seen the Supreme Court and Texas Courts uphold the privacy interests of citizens in their digital content.
Remember, if you consent to a search of your cell phone, computer or any other device, the police do not need a warrant. Anything the police find on your phone, computer etc. can and will be used against you when you consent.

Sometimes, when you don’t consent to a search the police will try to gather the information in other ways. Police can subpoena cell phone records to see what numbers a person dialed or texted. These are considered third party records that police can obtain from businesses that keep the records for business purposes and are In 1979 the Supreme Court handled a case called Smith v. Maryland where it was recognized that numbers dialed on a phone not expected to be private and therefore a warrant is not needed. The court noted that there is potentially a privacy interested in the actual conversation, but not the phone number itself.

However, when someone is arrested with their cell phone in their possession the government has sought to seize those cell phones and search the digital data under the guise of a “search incident to lawful arrest” (an exception to the warrant requirement). The government in Riley v. California and U.S. v Wurie seized cell phones of two arrested persons and searched inside their phones and discovered evidence of gang involvement and one of the cases led police to an apartment where guns and other contraband were found. In an easy 9-0 decision, the Supreme Court of the United States laid down the rule that contents of a digital cell device are subject to warrant requirement. Privacy interest of citizens in their digital contents is so great that a search is considered unreasonable without a warrant.

In June 2018, the U.S. Supreme Court in a 5-4 decision, went further to protect the privacy of citizens in Carpenter v. U.S.. This case involved a person accused and convicted of robbing several stores in different states. The government subpoenaed cell phone site data from the defendant’s cell phone company. These records provided cell site location information-CSLI (exact location) of the defendant for over 120-day period. The government was able to use those records to track defendant’s movements and align them with the times the robberies were committed. The Supreme Court noted that there is a reasonable expectation of privacy of citizens in their physical movements and cell site location records that can potentially go back as far as 5 years are something that should be protected against unreasonable seizures.

The Supreme Court has left open the possibility that digital contents can be subject to the warrant exception of exigent circumstances. In a life-threatening situation that calls for immediate action to save lives or prevent further harm, a digital search without a warrant may be justified. The Court noted that the exceptions could apply on a case-by-case basis.

U.S. Supreme Court Decision Potentially Makes It More Difficult to Deport Immigrants Convicted of Violent Crimes

Just last month, in a 5-4 decision, the United States Supreme Court held that a federal statute dealing with the deportation of immigrants convicted of “violent felonies” was unconstitutionally vague. This means the court found that the law at issue in the case was too broad, and not defined well enough to properly determine who was subjected to the law.

The court also held that the statute violated the Due Process Clause of the Fifth Amendment; meaning that the Statute violated basic Constitutional protections given to all individuals in the United States, regardless of their citizenship. The case before the court was Sessions v. Dimaya.

In a surprising turn of events, Justice Gorsuch, considered a conservative Justice, sided with the four liberal-leaning justices. Justice Gorsuch, you will recall, was President Trump’s nominee to replace the famously conservative Justice Scalia on the court and has traditionally sided with the other conservative Justices. The Court’s decision on this topic contrasts much of President Trump’s campaign platform, as it potentially makes it more difficult to deport immigrants convicted of violent crimes.

Case Background

The individual challenging the law, James Garcia Dimaya was a native of the Philippines. Mr. Dimaya had resided lawfully in the United States since 1992. During that time Mr. Dimaya was convicted twice of first-degree burglary under California state law. (Cal. Penal Code Ann. §§ 459, 460(a)). Following his second offense, the government sought to remove/deport, Mr. Dimaya.

Both an immigration judge and the Board of Immigration Appeals found that in California, first-degree burglary is a “crime of violence” under the laws of the United States, thus permitting Mr. Dimaya’s deportation. The Board reasoned that the offense “carrie[d] a substantial risk of the use of force.” See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).

The idea behind the Immigration Court’s ruling was that a non-citizen convicted of a violent crime, can be deported, or removed from the Unites States. The issue in the case before the Supreme Court, was what is the definition of “crime of violence”, as defined in subsection b. Subsection b was classified as the residual, or catch-all clause, and was supposed to incorporate crimes that subsection a did not adequately cover.

18 U. S. C. §16(b) says that  “crime of violence” means:

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The court reasoned that the section of law was vague because it “required a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that situation presents”, a degree of risk that has not yet been well-defined. For a court to try to “imagine” the different circumstances tends to generate more unpredictability and arbitrariness than the United States Constitution allows.

The Court decided that overly vague laws are unconstitutional because they do not provide ordinary people with “fair notice” of the conduct a statute describes. See Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). See also Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). See Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018), See also Johnson v. United States, 135 S.Ct. 2551, 2554 (2015) for further analysis of the case.

What will the Legislature do next? It seems uncertain, but for now, this is certainly a win in the fight for all immigrants accused of crimes in the United States.

Felony Criminal Enhancements in Texas

Texas law allows for harsher punishments for repeat and habitual offenders. This means that when you have been previously convicted of certain crimes, the State can enhance, or increase your range of punishment on your current charge.

The range of punishment refers to the amount of time and/or fine that a person can receive as punishment, if convicted of a crime. The range starts with the minimum penalty and goes all the way up to the maximum penalty.

Enhancements affect the range of punishment by increasing the minimum range of punishment to a higher classification of crime. Commonly, enhancements can occur simply based on the fact that a person has been previously convicted of certain crimes. The short answer to the question is, yes, the law in Texas mandates that a repeat or habitual offender face a higher range of punishment than they ordinarily would, had there been no prior conviction(s).

To understand how enhancements work, it is important to understand what the ordinary ranges of punishment are for felony offenses. The key to this is first determining what degree of felony you are being charged with.

All felony offenses are broken down into different degrees. Chapter 12 of the Texas Penal Code identifies punishments for all classifications of offenses. For a complete list of punishments, please refer to Chapter 12 of the Texas Penal Code.

 

For example, we will be looking at a few pieces of different felony punishments, and the potential jail time and fines you could face if you are charged with a felony. The degrees of felonies, along with their general ranges of punishment, are in order from least to greatest, and are as follows:

State Jail Felony Punishment (Tex. Pen. Code Ann. § 12.35)

  • Confinement in a state jail for any term of not more than two years or less than 180 days.
  • In addition to confinement, a fine not to exceed $10,000 may be assessed.

Third Degree Felony Punishment (Tex. Pen. Code Ann. § 12.34)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

Second Degree Felony Punishment (Tex. Pen. Code Ann. § 12.33)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

First Degree Felony Punishment (Tex. Pen. Code Ann. § 12.32)

  • Imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

 

Now that you know what the ordinary punishments are supposed to be, the question becomes, how will I know if my charges have been enhanced?

First, you should look to the indictment, or formal charging document, to see if there is an enhancement paragraph within that document. The enhancement paragraph is often included near the bottom of an indictment.

The paragraph is located below the allegations and will include the reason, or past crime the State is using to enhance the charge. If the reason your charge is being enhanced is a prior conviction, the State must have proof of your past conviction. This is typically done by using a past judgment of conviction. The judgment should state what crime you were found guilty of, where you were convicted, and will most often contain your fingerprint.

Remember, just because the Government or prosecutor is alleging an enhancement (prior conviction) it does not mean that they can prove it or that you have to plead guilty to that enhanced charge. You need to work with your attorney to find out your best options.

 

Though it should be noted that there are exceptions to the general rules, let’s walk through some enhancement scenarios below.

Examples of Enhancements

State Jail Felony → Third Degree Felony

If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree. (Tex. Pen. Code Ann. § 12.425(a)).

Alternative:

If you are charged with a state jail felony, and you have previously been convicted of two state jail felonies, if convicted, you can be punished as if the state jail felony were a third degree felony.

Third Degree Felony → Second Degree Felony

If it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree. (Tex. Pen. Code Ann. § 12.42(a)).

Alternative:

If you are charged with a third degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the third degree felony were a second degree felony.

 

Second Degree Felony → First Degree Felony

If it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony, on conviction the defendant shall be punished for a felony of the first degree. (Tex. Pen. Code Ann. § 12.42(b)).

Alternative:

If you are charged with a second degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the second degree felony were a first degree felony.

First Degree Felony

If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000. (Tex. Pen. Code Ann. § 12.42(c)(1)).

Alternative

If you are charged with a first degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you will be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term from 15-99 years. In addition to imprisonment, a fine of $10,00 may be assessed.

Ultimately, when you make certain mistakes, those mistakes can come back to haunt you in the form of an enhancement. Do not leave your future to chance. At Goza & Carreras, we are aggressive trial attorneys and will fight for you! 817-369-3838

Can You Make My Record Go Away? Expunctions in Texas


Everyone makes mistakes, and sometimes those mistakes lead to a criminal record or conviction. In Texas, and many other jurisdictions, obtaining an expunction is considered the ideal remedy to “erase” the records dealing with a person’s arrest, and subsequent criminal record. An expunction is the permanent removal of records related to an arrest or criminal proceeding. Generally, the records are held by governmental agencies, but sometimes schools and other agencies may have the records as well.

When a person is granted an expunction, a Judge orders the agencies listed in the petition, (or request for expunction) to destroy any and all documents connected to that arrest. To break it down further, successfully obtaining an expunction means there are no longer any records of your arrest. It is as if the arrest NEVER happened. Further, an expunction allows you to deny the arrest ever happened. Having a clean record can be the key to getting a job, housing, or other goals that can be hindered by a criminal record.

While many people are deserving of expunctions, the ability to expunge a record is not based on fairness or favoritism. It is important to understand that expunctions can only be granted where a person is eligible under the law.

Not all cases are eligible for expunction. While Chapter 55 of the Texas Code of Criminal Procedure provides an expansive list of expunction eligibility, common scenarios for expunction include:

1. Cases in which an individual was arrested, but was never ultimately charged with the crime.
2. Crimes that ultimately ended in a dismissal.
3. Cases in which a person has been acquitted, or found not guilty of criminal charges.

In most cases, the statute of limitations must lapse or expire before an individual is eligible for an expunction. The statute of limitations is the period of time (by law) that the Government has to file a case against you. For most misdemeanors, the statute of limitations is two years. While it can certainly vary, the statute of limitations on most felonies is five years. There are of course, exceptions to every rule. When a person has been acquitted of criminal charges, they are entitled to an expunction within 30 days of the acquittal. (Tex. Crim. Proc. Code Ann. § 55.02).

According to the Texas Code of Criminal Procedure, the law in Texas does not permit records to be expunged in cases that resulted in court-ordered community supervision, also known as probation and deferred adjudication. (Tex. Crim. Proc. Code Ann. § 55.01). Limitations such as this, on the ability to expunge a record highlight the importance of understanding how the outcome of your case can affect your future. It is important to have attorneys who give you the tools to make informed decisions about what outcome is right for you, and the potential consequences of those decisions.

We have successfully obtained Expunctions in Texas. Take the first step in cleaning up your criminal record–Call Kara Carreras at 817-369-3838 to find out if your case is eligible for an expunction.

GUILTY or NO CONTEST?

What is the Difference and What is best for me?

By: Brian Goza

When defending a case, the priority is always to have your client exonerated. Every case should be approached with that as the objective. All available evidence should be examined with that in mind. But, what happens if the evidence needed for the state to gain a conviction is clearly present?

When the prosecutor clearly has the upper hand, many cases are resolved by plea agreement. This means that the accused will enter a plea of either guilty or no contest, also referred to as nolo contendere. What are the differences between the two pleas and what are the legal effects?

When there is a plea bargain, generally the defendant will enter a plea of guilty. A guilty plea is a judicial admission that the accused committed the acts that the state has alleged which constitute a criminal offense. In felony cases, these allegations are contained in the state’s indictment. In misdemeanors, they are contained in a document called an information.

The other alternative is a plea of no contest to the prosecutor’s allegations. A plea of no contest is not an admission that the accused committed the act alleged in the charging instrument. Pleading no contest serves only as an admission that there is sufficient evidence for a judge or jury to find the defendant guilty, and that the defendant has chosen to not challenge that evidence.

The legal effect of the two pleas is very similar. Either is sufficient for the judge to find the defendant guilty, or that sufficient evidence exists to establish the defendant’s guilt, if the defendant receives deferred adjudication. There are several aspects of the two pleas which would at times make a plea of no contest more advantageous for the defendant.

First, in a plea of no contest, because the defendant does not admit that that committed the alleged acts, a defendant who believes that he did not commit the crime may except a punishment from the court. This limits a defendant’s potential exposure that is inherent in going to trial.

Second, unlike a plea of guilty, a plea of no contest may not be used against a defendant in a civil proceeding. This fact can have significant importance when a criminal defendant could be held liable civilly for monetary damages caused by their actions in commission of the crime. For instance, when a person is arrested for DWI and there is an accident it can be very important to plead no contest instead of guilty in a plea bargain agreement. A no contest plea would allow the defendant to dispute the issues of whether he was driving, and whether he was intoxicated if sued civilly for monetary damages resulting from the accident.

It is within the discretion of the court to except or reject any plea. Most judges, however, are more hesitant to except no contest plea then a guilty plea. It is important to make the nature of the plea, either no contest or guilty, part of plea negotiations with the prosecutor.

Competency to Stand Trial in Texas

By Brian Goza

In Texas, you must be competent to stand trial before proceeding in any criminal case. For most cases in criminal practice, this issue doesn’t arise. Defendants are presumed by law to be competent. Sometimes though, a defendant may exhibit behavior that raises a question as to whether or not they are competent.

A competent defendant in Texas must have sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and must have a rational and factual understanding of the proceedings against him. To be found incompetent, it must be shown by a preponderance of the evidence that the defendant lacks at least one of these abilities.

The question of competency is usually raised by the filing of a motion to test competency of the defendant. This motion may be filed by either the counsel for the defense or by the prosecutor. Additionally, the court may also suggest incompetence if it becomes aware of circumstances that could lead to the belief that the defendant lacks competence. The court then performs an informal inquiry to determine whether or not the defendant should undergo a full competence evaluation. The court may then appoint an independent expert, usually a psychiatrist or psychologist, to evaluate the defendant.

After a finding of incompetence, the goal of the justice system is to have the defendant treated so that he can regain competence to stand trial. In most cases, this is done on an inpatient commitment to a mental health facility such as a State School. In limited cases, when the defendant is deemed not a danger, the treatment may be performed on an outpatient treatment. When the defendant has regained competency, he returns to court to face the charges against him.

It’s important to remember that the question of competency to stand trial is not tantamount to a finding of insanity. Insanity is a defense to the changed conduct and therefore deals with the defendant’s mental state at the time of the alleged offense. The question of competency deals with the defendant’s present mental fitness to stand trial. The standards for an insanity defense are different and higher than those for a finding of incompetence.

Many times, defendant’s may be found incompetent despite the existence of significant and difficult issues such as bi-polar disorder, addiction and substance abuse, debilitating anxiety and depression disorder, schizophrenia and many other psychiatric disorders. If the defendant is found incompetent, it is in no way a get out of jail free card.

Conditions of Probation: What did I sign up for?

By Brian Goza

In criminal practice, cases are frequently resolved by agreement, or “plea bargain”, that calls for the defendant to received either deferred adjudication or a suspended sentence and community supervision. Both of these are what most people call “probation.”
Probation can be in many forms. In some cases, it may be unsupervised where all that is required is that the probationer not violate the law for a couple of months. It can also be very restrictive and last up to ten years. The Judge has the authority to set the terms and conditions of probation in all cases.
In most cases, the terms and conditions of probation are pretty basic and usually include the following:
• Commit no new criminal offenses.
• Avoid harmful or injurious habits. Consume no illegal drugs. Avoid excessive consumption of alcohol.
• Don’t be around people of bad character (other people breaking the law).
• Report to a probation officer, usually monthly.
• Home visits by probation officer.
• Maintain employment.
• Stay within a certain county unless given permission to leave.
• Support all dependents.
• Have no firearms.
• Pay restitution if applicable, and all fines and court costs.
• Perform community service in an amount of hours set by the Judge.
• Submit to urine testing. The urine sample may not be diluted.

Keep in mind that those are the BASIC conditions of probation. Under 42A.301 of the Texas Code of Criminal procedure, following acceptance of the plea agreement by the court, a risk and needs assessment will be performed in most cases. Depending upon the results of the assessment additional conditions may be imposed by the court. These may include:
• Electronic monitoring
• Curfew
• Parenting Classes
• Compliance with CPS conditions
• No contact with certain individuals
• Psychological/ Sexual Evaluation
• Driver Safety course
• Substance Abuse Evaluation that could result in outpatient treatment, Education classes, Residential (inpatient) treatment, AA/NA.
• Speculating caseload (Example: Economic crime as mental health caseload)
• Alcohol monitoring device
• Education classes
• Cognitive classes
• No alcohol
• No contact, or no unsupervised contact with children younger than 17.

To be successful on probation you must follow all the rules the Judge gives you. And, you may not know ALL the rules at the time you are placed on probation. Be sure to ask your lawyer not just what your conditions of probation will be, but what they MIGHT be as well.

Texting and Driving in Texas

 

By: Kara L. Carreras

Until yesterday, Texas was one of only four states that did not have a ban on texting while driving. Governor Abbott signed off on House Bill 62 yesterday; so, effective September 1, 2017, it will be illegal to text while driving in Texas. The bill can be found at this link: http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=85R&Bill=HB62

Here is what you need to know:

This amendment adds a new offense to the Texas Transportation Code §545.4251 and states that it is illegal to operate a motor vehicle and text on an electronic device aka cell phone while the vehicle is moving. This offense will be a class C ticket punishable by a fine only, but if someone is accused of causing serious bodily injury or death because of texting and driving the case can be charged as a Class A misdemeanor punishable up to 1 year in jail.

The legal requirements to prove the offense of texting while driving state that the texting must take place in the presence or within view of a police officer; although other evidence can be used. What type of “other evidence” can be used? No one knows yet, but here are defenses and exceptions to this law. Do you use your music app while driving? There is a defense for that. Also, if you use a GPS/navigation app, no need to worry. If you rely on these functions while you drive, the law makes exceptions for that and allows you to use them. The problem is that an officer may go ahead and issue you a citation/ticket, and then you will have to head to a municipal judge to show that you qualify for one of the defenses listed in the Code. Another part of the law says that officers will not be allowed to take possession or inspect your cell phone without your permission. The caveat to that is if officers have a legal reason to search or take possession under Texas Penal Code or Code of Criminal Procedure, they can confiscate on other grounds.

Some critics of this bill think that it will be just another way for officers to make contact with suspects and conduct warrantless stops on vehicles. Officers can pull you over if there is probable cause or reasonable suspicion that you are committing a criminal offense; this can include speeding, invalid registration, and now texting while driving. For now, we advise that you start getting used to the fact that you will not be able to text while your vehicle is in motion. If you text and drive in Texas, it could cost you!

Texas Second Chance Bill

 

 

 

 

 

 

Orders for Non-disclosure in Texas
Texas Second Chance Bill-HB3016

By: Kara L. Carreras

Just last week the Texas Senate approved and amended Texas’ “Second Chance” Bill.  The bill originated in the House (HB3016).  The idea behind the bill is to support lower level offenders and give them the chance to become productive members of society without the stigma of criminal convictions.   An order for nondisclosure (OND) is governed by Texas Government Code §411.0736.  In the past, the OND only allowed the sealing of records to certain individuals who successfully completed deferred probation for lower level drug, theft and other similar type offenses.

This bill has support from many criminal justice reform agencies, including Texas Public Policy Foundation as well as Mothers Against Drunk Driving.  Texas’ crime rate has been decreasing and there is a huge focus on rehabilitation programs for drugs and alcohol.  This is one step closer to allowing offenders to get their lives back.  If this bill passes (which is very likely) these new amendments will apply to cases on or after September 1, 2017.  So here are the details:

The proposed bill broadens the scope of the Order for Non-Disclosure by allowing those convicted of a DWI (so long as the blood results are less than 0.15 and there was not an accident involved) to be eligible for the non-disclosure.  In Texas, DWI and murder are two types of cases where the law does not allow for the option of deferred adjudication probation. (Deferred adjudication is a special type of probation that, if successfully completed, does not become a conviction on one’s criminal record).  So, as the law stands now, anyone who completes probation for a DWI is ineligible for an Order of Non-disclosure.  The new proposal will change that rule.  Persons with NO PRIOR RECORD can become eligible for the sealing or Order for Non-disclosure if they successfully complete probation along with a 6-month interlock ignition device program.  If the 6-month interlock requirement is not met, the waiting period to obtain a non-disclosure is 5 years from the date of discharge of the sentence.

The bill also expands the non-disclosure for sealing additional state jail drug & marijuana felonies after successful completion of community supervision.  These cases will require a waiting period after being discharged from probation, but still offers the chance at change and a clean slate in the eyes of the public.

An order for non-disclosure still allows the government and certain state agencies to see criminal history.  If you are interested in having your records sealed or non-disclosed give our experts a call.  We have successfully obtained Orders for Non-disclosures and Expungements in Texas.

 

Supreme Court Criminal/Death Penalty Cases

by Kara L. Carreras

supremecourt

It’s spring in Washington D.C. and not only does that mean cherry blossoms, but it means that the United States Supreme Court is very busy hearing arguments on pending cases and granting future hearings. Many of the cases granted certiorari (or granting hearings) are death penalty cases. A few months ago, the United States Supreme Court added 16 new cases to their Spring term and they are adding several more. Many of those heard this year and set for argument are criminal death penalty cases from Texas.

Some of the cases relate to racial bias, the rights of an accused person being given the ability to adequately prepare for their defense with the use of meaningful expert assistance, and others focus on intellectually disabled individuals.

Just yesterday the Supreme Court granted a hearing this coming fall for AYESTAS v. DAVIS, No. 16-6795. This case involves a Texas man convicted and sentenced to death in Harris County (Houston area). The only question before the Court is whether Federal appeals court erred by denying access to funds and resources to investigate his appellate claims, including the fact that he may have a mental disability. The claim is that the original state defense attorneys did not thoroughly investigate the potentially mitigating arguments in Ayestas’ defense.

Another Texas case that we have watched very closely is: MOORE v. TEXAS, No. 15-797. This case was decided March 28, 2017, on a 5-3 vote. The case centered around what are acceptable medical standards that can be used in determining the intellectual functioning of a defendant in a capital/death penalty case. The Court struck down Texas’ application of using outdated “legal-type” standards to determine intellectual disability. The Court stated that when determining intellectual disability of a person, the state must be “informed by the medical community’s diagnostic framework.” The majority stated that using outdated/”outlier” medical standards gives an “unacceptable risk” that an intellectually disabled person could be executed.

BUCK v. DAVIS, No. 15-8049 (decided February 22, 2017) is probably the most notorious case, nationally, and this one is from Teas as well. The issue raised in this case was one of racial bias. Duane Buck was one of 7 Texas cases that involved an expert psychologist by the name of Walter Quijano, who told juries at sentencing that blacks and Hispanics were “more likely to commit future crimes.” Six of the 7 defendants were given new sentencing hearings based on this racially biased claim, but Buck was not and his case made it to the United States Supreme Court.

The question before the Supreme Court was one of national importance; to what extent is the criminal justice system going to allow for bias based on race? In an easy 6-2 decision, Chief Justice John Roberts explained that the “law punishes people for what they do, not who they are.”
McWilliams v. Dunn, No. 16-5294- is a case set for oral argument April, 24, 2017. This case centers around the constitutional right that a defendant should receive meaningful expert assistance in preparation and presentation of his defense.

In this case, the defense counsel for James McWilliams requested expert assistance for neurological evaluations which were denied. Just moments before McWilliams sentencing hearing in state, court defense counsel received information related to the possibility of his client having an intellectual disability. The defense counsel, again, requested a continuance so that he could get a medical expert to further evaluated his client. His requests were denied and McWilliams was sentenced to death by the judge in Alabama.

Question Presented: Whether, when the Supreme Court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense” it clearly established that the expert should be independent of the prosecution.

Cert papers and the decision below are available here: http://www.scotusblog.com/case-files/cases/mcwilliams-v-dunn/

Davila v. Davis, No. 16-6219- is also set for argument April 24, 2017, and is a Texas Death Penalty case. The issue is more of a technical one asking whether Davila can raise the claim of ineffective assistance of counsel at the federal court level when the original appellate attorney did not raise the question of ineffective assistance of the original state attorney. So, part of the question is whether the federal appellate attorney made a mistake in not raising the issue to begin with. Usually, when an error argument is not raised initially, it is assumed the issue is waived. Many federal jurisdictions are split on this issue, so the decision of this case will answer the question once and for all.

Question presented: Whether the rule that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim also apply to procedureally defaulted, but substantial ineffective assistance of appellate counsel claims.
Cert papers and the decision below are available here: http://www.scotusblog.com/case-files/cases/davila-v-davis/