Fifth Circuit Court of Appeals
U.S. v. Ramos
7/29/08 : Cite No. 06-51489 : Proceeding
Was the Border Patrol’s internal investigation an “official proceeding” under 18 U.S.C. §1512(c)(1) and (2), the federal obstruction of justice statute?
No. “Official proceeding” is used throughout the statute in a manner that contemplates a formal environment in which persons are called to appear or produce documents. In its most preliminary stages, an internal, informal investigation of employee violations of an agency policy is not an “official proceeding” within the meaning of §1512(c).
You will almost certainly be familiar with this case as the appeal of the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean for repeatedly firing at an admitted drug smuggler and then attempting to cover up their actions. The appellate court's opinion acknowledges the significant dispute that exists between the government's position and that of the defendants. But the court defers to the jury, holding that were justified in resolving the conflicts in the testimony and finding that the smuggler/victim fled toward the Mexican border after one of the agents took a swing at the victim with his shotgun. The jury was then justified in finding that, while the victim was in flight, the agents--without provocation--fired their weapons at him several times. This opinion will almost certainly do very little to quell the controversy that has long existed over this case. But this opinion does bring to realization that--whatever the truth--the defendants are going to continue to spend a long time in prison. The issue that we have identified here would probably not occur in Texas state court because our tampering with evidence statute (Section 37.09 of the Penal Code) permits prosecution if an investigation was occurring, not just an official proceeding.
Courts of Appeals Texas
Dornbusch v. State – 2nd COA
7/24/08 : Cite No. 2-07-297-CR : DWI
For the purposes of DWI, was the defendant legally and factually operating his car if he was passed out behind the wheel with the engine running, headlights on, radio playing loudly, and the car in gear while it was parked in a restaurant’s lot?
Yes. Under the totality of the circumstances, the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use. In addition, a parking lot at a public place is not legally different from a roadway for purposes of a DWI arrest or conviction.
This is a well-reasoned and well-researched decision that further supports the idea that a broad interpretation of "operating" a motor vehicle should be enforced in DWI prosecutions. The opinion also makes clear that parking lots are public places, just as are roadways. Keep this decision close if you prosecute a lot of DWI cases.
v. State – 7th COA Martinez
7/28/08 : Cite No. 07-07-0187-CR :Jurisdiction
Based on an eyewitness report and their own observations, did sheriff deputies have probable cause to stop the defendant outside of their jurisdiction for DWI?
Yes. Under CCP art. 14.03(a), a peace officer outside ofhis jurisdiction may make an arrest for a violation of Penal Code Chapter 49, which contains the offense DWI, if he has knowledge, combined with his own personal observations, that an offense is being committed in his presence. Here, a citizen’s detailed tip coupled with the deputies’ personal observations gave the deputies reasonable suspicion not only to stop the defendant’s car but also arrest him for DWI.
We can never have too many decisions that uphold officers' actions based--even in part--upon information provided to the police by unknown eyewitnesses who were not otherwise involved in the crime. This is yet another decision that should be very helpful to you, particularly in DWI prosecutions.
State v. Stevens – 14th COA
7/29/08 : Cite No. 14-05-00129-CR : Collateral Estoppel
In an action to adjudicate guilt for an involuntary manslaughter charge after an arrest for DWI, does collateral estoppel apply to an order from the DWI prosecution granting a motion to suppress?
No. Collateral estoppel does not apply because granting a motion to suppress based on no reasonable suspicion and/or probable cause is an evidentiary issue that does not relate to an essential element of the DWI alleged. Furthermore, collateral estoppel does not apply because a motion to suppress is an interlocutory orderthat does not necessarily require the determination of an ultimate fact by a valid and final judgment.
This decision is a logical application of the holding of the Court of Criminal Appeals in Murphy v. State, 239 S.W.3d 791 (Tex. Crim. App. 2007). Hold onto this opinion if you have a defendant claiming that a previous ruling in a motion to suppress in another case prevents the relitigation of the issues involved in your subsequent prosecution.
Texas Attorney General Opinions
7/30/08 : Conflict
May a justice of the peace who is an attorney be appointed to represent criminal defendants in appellate proceedings?
Neither Gov’t Code §82.064 nor CCP art. 26.06 prohibits a justice of the peace who is an attorney from accepting an appointment to represent an indigent criminal defendant at the appellate level, and both implicitly recognize the justice's authority to do so. Nevertheless, the justice also is subject to the Code of Judicial Conduct and the Texas Disciplinary Rules of Professional Conduct. Whether a justice of the peace maybe appointed to represent criminal defendants in appellate proceedings without violating these rules is a question requiring the resolution of fact issues and cannot be determined by this office.
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