McAllen, Texas Criminal Defense, Divorce and DWI Lawyer Johnathan Ball

March 19, 2010

Texas Jury Charges and Instructions

Filed under: McAllen Criminal Defense,Texas Criminal Defense — Tags: , , , , , , , , , , , , — Johnathan Ball @ 8:49 am

JURY CHARGES AND INSTRUCTIONS:
A GENERAL OVERVIEW

Presented By Johnathan Ball

HCBA CRIMINAL LAW CONFERENCE 2010:
Lawyers as Warriors

Presented by
The Hidalgo County Bar Association

Sponsored by
Foster Quan, LLP

Friday, March 5, 2010
Embassy Suites Hotel * 1800 South 2nd Street * McAllen

JURY CHARGES AND INSTRUCTIONS

The volume of case law available to research on jury charges is daunting. Putting together a comprehensive paper on jury charge and jury instruction case law would be a six month undertaking. Even then you’d have to leave out some really good case law. Because this body of case law is so extensive the purpose of this paper is to give you a brief overview of the jury charge and relevant case law. My hope is to give you a good starting point to begin any research you need to do prior to submitting your charge to the jury.

First things first: draft your jury charge before the start of trial. Start by reading the indictment. Figure out what has been pled against your client. Look at the offense as defined in the penal code. Then put together the charge. The charge will act as a road map for you. It will tell you where the prosecution has to go to get their proof. And it will hopefully show you where to find your reasonable doubt.
Also, try to anticipate any midtrial limiting instructions you may need to request. Think about any 404b issues that may get presented to the jury and be prepared to requested a limiting instruction on that issue.

Texas Code of Criminal Procedure Article 36.14-19

The starting point for any jury charge is Article 36.14 of the Code of Criminal Procedure (CCP) which states that the court’s charge should “distinctly set … forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury”.

No Piece of Evidence Can be Singled Out

Failure to Videotape a DWI suspect
A jury charge cannot comment on any part of the evidence, regardless of that what evidence was. In Drewett v. State, 704 S.W.2d 43 (Tex.Crim.App.,1986) involved a DWI arrest in Harris County. The trial Court instructed the jury as follows:
“You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of driving while intoxicated. Evidence has been introduced in this case that such electronic device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.”

The Court of Criminal Appeals held this was an impermissible comment on the evidence because the charge singled out one particular piece of testimony. Be mindful of any instruction that puts a spotlight on anyone witness or piece of evidence.

A recent case from the Court of appeals dealing with comments on evidence is Bartlett v. State 270 S.W.3d 147 (Tex. Crim. App. 2008). In Bartlett the trial court impermissibly instructed the jury that it could consider the defendant’s failure to take the breath test in its deliberations. This was held to be an impermissible comment on the weight of the evidence by the trial Court. The Court of Appeals wrote:

“By singling out that evidence, the trial court violated Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and committed a jury-charge error…“A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties.’ Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention.”

Commenting on Expert Testimony

In Russell v. State, 749 S.W.2d 77 (Tex.Crim.App.,1988) the defendant was charged with aggravated sexual abuse of a child. The defendant presented a clinical psychologist at trial who testified the Defendant was a pedophiliac and could not conform his conduct with the dictates of society. The court instructed the jury it was not bound by testimony offered by a witness qualified as expert. The court instructed the jury:

“You are instructed that you are not bound by the testimony offered by a witness qualified as an expert. You may give it the weight to which you find it is entitled and may weigh such testimony with all other evidence offered in this case.”

The Court of Criminal Appeals held this was an impermissible singling out of evidence and testimony.
When the Judge Can Single Out Testimony or Evidence in the Charge
Bartlett identified three circumstances when it is appropriate to single out evidence: 1. when the law directs the attachment of a certain amount of weight to evidence, such as accomplice witness testimony, 2. evidence admitted for a limited purpose; when the law has created a statutory presumption; and, 3. when evidence is contingent on the admissibility of certain facts that it is up to the jury to decide. Evidence not in one of these three categories should not be singled out.

Scope of the Charge

Keeping CCP 36.14 in mind, a jury instruction should be crafted by referencing the indictment and the supporting evidence admitted during the trial. Jury instructions should be restricted to the scope of the indictment. Only theories alleged in the pleadings should be given to the jury. See Wilson v. State, 625 S.W.2d 331 (Tex.Crim.App. 1981). The charge should not enlarge the scope of the pleadings. In other words, the indictment controls the scope of the charge and additional theories should not be included in the charge which were not pled or for which there is no supporting evidence. See Id.
Further, in Dowden v. State 537 S.W.2d 5, 7 (Tex. Crim. App. 1976), the jury charge included the robbery and aggravated robbery statutes in their entirety. The charge included portions that were neither pled in the indictment, nor proven at trial. The Court held this practice of blindly reciting an entire statute was wrong. In a stinging retribution of the trial court the Court of Criminal Appeals wrote:

“This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction.”

The Charge Must Apply the Law to This Case

Further, it is not enough to simply recite legal platitudes in the jury charge. The purpose of the charge by a trial court must clearly apply the law to the very facts of the case. It is not simply to recite abstract propositions of law and general principles. See Atunez v. State, 647 S.W.2d 649 (Tex.Criminal App.,1983).

Ask and Ye Shall Receive: Charging on A Defensive Theory

There are numerous defensive instructions that can potentially get submitted to the jury. Entrapment, self-defense, mistake, necessity and defense of third persons are a few of the theories available. When in doubt, ask for the instruction. Remember, if evidence is introduced from any source which raises an issue on a defensive theory, the theory must, upon proper request, be included in the court’s charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Crim.App.1986).
The accused is entitled to an instruction on the defensive theory even if the issue was raised only by the defendant’s testimony alone. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991); Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). And it does not matter the evidence presented is strong, weak, unimpeached, contradicted, or unbelievable. The defendant is entitled to the instruction. Period. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993); Lugo v. State, 667 S.W.2d 144, 146 (Tex.Crim.App.1984). The reason the defendant is entitled to the instruction once it is raised, is because it is not the court’s function to determine the credibility or weight to be given the evidence raising the defensive issue in a jury trial. Gibson v. State, 726 S.W.2d 129, 132-33 (Tex.Crim.App.1987). It is the province of the jury to determine if the evidence is credible and supports the defensive theory. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978). See also Birch v. State 948 S.W.2d 880 (Tex.App.-San Antonio,1997).
Request the defensive instruction if the issue is raised from any source, regardless of who strong the testimony or evidence may be.

Fifth Amendment and the Defendant’s Failure to Testify Instruction

We have all heard since we were eight years old about the Fifth Amendment which states “No person shall be []shall be compelled in any criminal case to be a witness against himself.”
And jury is not permitted to draw adverse inferences from the fact that the Defendant elected not testify at trial on the merits. The defendant shall have the right to have the jury instructed as such. The right to have the jury instructed not to draw adverse inferences from the election to testify carries over to the punishment phase as well. Conversely, if the defendant does elect to at the punishment phase, the jury should be instructed not draw adverse inferences from defendant’s failure to testify at the guilty/innocence stage of trial. See Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App. 1989); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App. 1981); Estell v. Smith, 451 U.S. 454 (1981).

Note: Some jury charges will state something to the effect of : “You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him (emphasis added).” I don’t like when the charges talk about a Defendant’s failure to testify. Failure suggests to me that the Defendant should have done something but did not.
I prefer to see a charge say “Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him.”

Entitlement to Limiting Instructions During Trian Relating to 404b

Texas Rule of Evidence 105(a) states : When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of the such request the court’s action shall not be a ground for complaint on appeal.” In other words, when evidence or testimony is admitted, the Defendant is entitled to a limiting instruction on the evidence.

In Rankin v. State , 974 S.W.2d 707 (Tex.Crim. App-1996) the court held:

“Limiting instructions given for the first time during the jury charge thus do not constitute an efficacious application of Rule 105(a) since it allows for the possibility that evidence will be used improperly in clear contravention to the purpose of the rule. Since limiting instructions operate most effectively when given simultaneously with the relevant evidence, it would not do to grant trial courts “discretion” to deliver those instructions, after they had been properly requested, at a less opportune time.”

The point of Rankin is to ask for the limiting instruction immediately. First, it preserves should the Court refuses the instruction. And secondly, it puts the testimony or evidence into context with the jury immediately. “ The purpose of … midtrial limiting instructions is to insure that the jurors realize the proper use of each bit of evidence as it comes in. Where the jurors have been accumulating their impressions of the evidence over the course of the trial, it is impossible for them to go back at the close of the trial and reassess the evidence in light of the limiting instruction, even if they could appreciate which items of evidence the instruction was supposed to apply to. These difficulties are avoided by instructions at the time of introduction of evidence received for a limited purpose. 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence § 5065. See Rankin at 712.

Objecting to the Jury Charge

CCP 36.14 states “[T]he defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection…The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury. Compliance with this article is all that is necessary to preserve, for review, the exceptions and objections present to the charge…”
First, remember to take your time in reading the charge. You are allowed sufficient time read the charge and formulate your objections.
Regarding objections, in Almanza v. State, the court of criminal appeals wrote : “we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. On the other hand, if no proper objection was made at trial and the accused must claim that the error was “fundamental,” he will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial”-in short “egregious harm.”
In other words: When in doubt, object. It is better to be safe and preserve the error for review under a lower threshold.
Conclusion
The jury charge is fertile ground to present your defensive theories. But just as importantly, it is your opportunity to limit the charges against your client to their proper scope. Request any instructions you believe you client is entitled. Object when you think the charge includes or does not include something that is relevant. Especially any type of comment in the charge that singles out on particular witness. And request limiting instructions when necessary to keep evidence in its relevant context.

San Juan Texas Shooting Over Marijuana Smoking

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , , , , , , , — Johnathan Ball @ 7:50 am

During argument over pot smoking, man shoots neighbor

Comments 7 | Recommend 0

March 18, 2010 5:58 PM
Jared Taylor
The Monitor

UPDATED

 

SAN JUAN — A man was shot in the back after confronting his neighbors about smoking marijuana near his young children, police said.

The 32-year-old man was transported to McAllen Medical Center, where he is expected to recover from non life-threatening injuries.

The pot problem began on Saturday when the man confronted the three men about smoking marijuana in the open on the 900 block of Shufford Street, apparently visible to the man’s young children, San Juan Police Chief Juan Gonzalez said.

That day, one of the suspects apparently flashed a pistol and threatened his neighbor.

The dispute turned violent Thursday afternoon when he confronted them again.

The three men allegedly began punching the man outside their house at 913 Shufford St., the chief said. The neighbor fell to the ground. The three neighbors passed around a small-caliber pistol until one of them shot the prone man in the back.

Police said the three suspects, 22-year-old Michael Arroyo, 17-year-old Noe Sifuentes and a 16-year-old juvenile, remained on the run and are members of a local street gang. Gonzalez said investigators believe the trio is hiding in the Pharr-San Juan area and are armed and dangerous. The trio fled the area by the time police arrived minutes later.

Canine units from McAllen and Palmview searched the area. Officers are searching several other locations in the area where the suspects — believed to be armed and dangerous — may be hiding, Gonzalez said.

Neighbor Joe Pineda, who said he is friends with the victim, was pruning tree branches in his yard when he heard the gunshot.

“I heard my friend say, ‘You shot me!”’ said Pineda, 76.

The neighborhood along Shufford Street normally is quiet and most neighbors amicably greet each other, Pineda said. The shooting victim would regularly have cookouts in his yard with his family, he said.

Pineda said the only recent problem that bothers him and his neighbors is the public marijuana smoking across the street.

“They smoke pot all night in there,” he said. “We have never had these problems.”

 

 >> Anyone with information about the shooting or the suspects is urged to contact San Juan Crime Stoppers at (956) 283-9477.

 

 ___

Jared Taylor covers law enforcement and general assignments for The Monitor. You can reach him at (956) 683-4439.

December 31, 2009

Teacher arrested, accused of zip tying unruly student

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , — Johnathan Ball @ 5:57 pm

Teacher arrested, accused of zip tying unruly student

Comments 19 | Recommend 0

December 31, 2009 1:11 PM

SAN JUAN — A PSJA middle school teacher was charged Thursday with restraining an 11-year-old student with zip ties.

Jose Manuel Martinez, 25, was arrested at his home about noon that day at his home on the 600 block of Bluebonnet Street in Pharr, according to San Juan Police Chief Juan Gonzalez.

Martinez was later charged with unlawful restraint of a minor at an arraignment hearing at the San Juan Municipal Court. He remains incarcerated at the city jail in lieu of a $20,000 bond.

According to a police affidavit in the case, the boy’s mother told staff at Austin Middle School in San Juan that Martinez had tied the student’s hands with zip ties as he sat in a chair during in-school suspension Dec. 11. The victim’s mother told police Martinez tied the child and prevented him from going to the nurse’s office after he complained of having trouble breathing.

A woman who was present during the incident told police the student had used vulgar language and threatened to run out of class, the statement said. The woman also said the boy became violent and began hitting his hands against walls, refusing to do his assigned class work. She told police the child was tied for about five minutes — this was the third time the boy had been restrained in this manner.

A spokesperson with the Pharr-San Juan-Alamo Independent school district did not return messages left Thursday afternoon.

Unlawful restraint of a child is a state jail felony. If Martinez is convicted, he could be incarcerated for up to two years and forced to pay a $10,000 fine.

—

Ana Ley covers law enforcement and general assignments for The Monitor. She can be reached at (956) 683-4428.

Mission Texas police officer suspended after DWI arrest

Filed under: Uncategorized — Tags: , , , , , , , , , , — Johnathan Ball @ 5:53 pm

Mission police officer suspended after DWI arrest

Comments 12 | Recommend 4

June 28, 2008 5:10 PM
Sean Gaffney

SAN JUAN — A Mission police officer has been suspended indefinitely after a Saturday morning arrest for allegedly driving an unmarked police car while drunk, officials said.

This is at least the third arrest on suspicion of driving while intoxicated for Officer Martin Flores Villarreal, 40, of Mission, and at least his second while driving an unmarked Mission police car, according to court records and Trooper Johnny Hernandez, a local spokesman for the Texas Department of Public Safety.

The first two charges, in 2004 and 2006, were both dismissed, court records indicate.

Villarreal is suspended from the department indefinitely and without pay following his latest arrest, said Lt. Martin Garza, a Mission police spokesman. The accused officer has the right to appeal the suspension.

State troopers arrested Villarreal about 2:30 a.m. Saturday along the eastbound frontage road of Expressway 83 near the intersection with Raul Longoria Road, according to Hernandez.

Villarreal apparently was stopped on suspicion of a traffic violation, which Hernandez refused to detail. The Mission police officer failed a field sobriety test and was taken to the Hidalgo County Sheriff’s Office, where a breath test indicated his blood alcohol concentration was twice the legal limit, Hernandez said.

Under Texas law, any driver with a BAC of 0.08 percent or higher is considered intoxicated.

Three other passengers in the car — two women and another Mission police officer — did not appear to be intoxicated and were not detained, Hernandez said.

Villarreal, who was arraigned at the sheriff’s office on a charge of driving while intoxicated, posted the state-mandated $502 bond and was released sometime Saturday morning, according to the sheriff’s office.

Mission police Chief Leo Longoria could not be reached for comment.

This was at least the second time this year an officer with a local law enforcement agency was arrested on suspicion of driving while intoxicated.

Hidalgo County Sheriff’s Deputy Sergio Salaiz De Hoyos, 36, was arrested in mid-February in Donna. He resigned after Sheriff Lupe Treviño suspended him with pay. His case is pending in Hidalgo County Court-at-law No. 4

De Hoyos had at least one prior DWI arrest in 1990. Court records indicate he was convicted and completed a DWI education program.

____

Sean Gaffney covers law enforcement and general assignments for The Monitor. He can be reached at (956) 683-4434.

October 19, 2009

A Primer on the Myth of Latent Print Identification

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 6:56 pm

LATENT FINGERPRINT IDENTIFICATION IS UNRELIABLE AND FAILS TO MEET THE MOST BASIC SCIENTIFIC PRINCIPLES TO ENSURE RELIABILITY

      A latent fingerprint is the reproduction of the friction ridges of the fingers in perspiration or oily matter on an object which has

been touched. See Gary W. Jones, Courtroom Testimony For the Fingerprint Expert. Latent fingerprint examiners make

identifications when they find a certain number of ridge characteristics to be in common, both in terms of type and location.

However, there is no consensus in the latent print expert community as to how many common characteristics should be found

before an identification is proclaimed. See An Analysis of Standards in Fingerprint Identification, FBI L. Enforcement Bull, June

1972.

A.        Fingerprints are not as unique as once thought.

      The long held belief that no to prints are alike has come under intense scrutiny in recent years. During expert testimony in a recent federal case, the government call Steven Karasky, a board certified member of the International Association for Identification (IAI) and a United States Postal Inspector. Mr. Karasky acknowledged during his testimony that no published studies regarding false identification had ever been conducted. He also testified he personally knew of instances where prints from two different people contained as many as ten matching ridge characteristics. See U.S. v. Parks (C.D. Cal. 1999). Following an evidentiary hearing the Court held that fingerprint evidence was not scientific and lacked sufficient indicia of reliability. In fact the Court was incredulous telling one of the experts: “You don’t have any standards, As far as I can tell, you have no standards, its just an ipse dixit.” The testimony was excluded. . See U.S. v. Parks (C.D. Cal. 1999) .  See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. 

      In addition to United States experts recognizing the lack of total uniqueness in latent prints, experts in other countries have discovered the same and published their research. Israeli fingerprint examiners found fingerprints from two different people that contained seven matching ridge characteristics. As the authors of that study acknowledged, “an expert with many years of experience behind him” could make a false identification when comparing two such prints. Unfortunately, no scientific study has been performed that reasonably indicates the probabilities of fingerprints from different people having varying numbers of matching ridge characteristics. See Y. Mark & D. Attias, What Is the Minimum Standard of Characteristics for Fingerprint Identification? 22 Fingerprint Whorld 148, 148. So we are left to ask ourselves, “What is the scientific basis for analysts’ long held position that no to prints are the same?”

B.        Fingerprint identification is not used outside of the courtroom setting.

            Fingerprint analysis is not used outside of the judicial setting. It is exclusively the providence of the courts. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. This ;ack of out-of-court use is one of the Daubert factors adopted by the Texas courts which trial courts should look to in deciding whether to admit or exclude expert testimony.  

C.        There is no uniformity regarding the number of ridge markers required to designate a print as a match.

            Latent fingerprint examiners in the United States are currently operating in the absence of any uniform objective standards. The absence of standards is most glaring with respect to the ultimate question that should be asked of all fingerprint comparisons: what constitutes a sufficient basis to make a positive identification? See Simon Cole, What Counts for Identity? The Historical Origins of the Methodology of Latent Fingerprint Identification, 12 Sci. in Context 139, 147 (1999). See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. As there are no objective industry standards, individual analysts are left to their own, subjective standards in making the determination.

            Though the United States has no uniform identification standard, many other countries have set such standards based on a minimum number of points of comparison. Italy retains the minimum standard of seventeen matching points before a comparison can be made, and both France and Australia require twelve points. Thirty is the minimum number required for a “match” in Argentina and Brazil. See David R. Ashbaugh, Quantitative-Qualitative Friction Ridge Analysis: An Introduction to Basic and Advanced Ridgeology 125 (CRC Press 1999) . See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705.

            The International Association for Identification (IAI) is a private organization/governing body for forensic science. The IAI makes recommendations to the National Academy of Science which in turn makes recommendations to Congress itself. As far back as 1973 the IAI issued a report that indicated the lack of testing in the fingerprint identification field. The IAI formed a standardization committee for the purpose of determining the minimum number of friction ridge characteristics which must be present in two impression in order to establish a positive identification. After three years of examining the issue the IAI was unable to reach a consensus on the minimum number needed. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705.

            Underlying the real reason for not providing a minimum number was “[T]he absence of valid scientific criteria for establishing the minimum number of minutiae has been the main reason that professionals have avoided accepting one.” See David Stoney, The Scientific Basis of Expert Testimony on Fingerprint Identification, Modern Scientific Evidence: the Law and Science of Expert Testimony Section 21-3. The official position of the IAI since 1973 is that no minimum number of corresponding points of identification is required for an identification. Instead, the IAI leaves the determination of a sufficient basis for an identification entirely to the subjective judgment of the particular examiner.

            In other words, there is no general acceptance in the scientific community on latent fingerprint analysis requirements. It is purely subjective to the individual examiner.

D.        In the United States the results of the fingerprint identification are purely the opinion of the analyst.

            David Ashbaugh, a leading forensic scientist stated, that “[i]n some instances we may form an opinion on eight ridge characteristics,” but in other cases, “we may require twelve or more to form the same opinion.” Ashbaugh’s explanation for this sliding scale is that some ridge characteristics are more unique than others. However, fingerprint examiners have never adopted any weighted measures of the different characteristics. Therefore, as Ashbaugh has recognized, the particular examiner’s determination of whether eight or twelve matching characteristics are sufficient in a particular case is entirely subjective. Without objective professional standards, courts are without sufficient basis to judge the validity, admissibility, and worthiness of fingerprint identification testimony. David Ashbaugh, The Key to Fingerprint Identification, 10 Fingerprint Whorld 93 (Apr. 1985). The results are identifications made by examiners using their own ad hoc criteria. Any way you look at it, the positive identification of the Defendant is based solely on the opinion of one person, without any guiding standards.

E.        There is no known error rate in fingerprint analysis

            There have been no controlled studies to determine the error rate in the field of latent print identification. Without known error rates the State will be unable to meet its burden and the admission of the fingerprint analysis will not meet the Daubert test.

            At the very heart of verifiable certainty is a known error rate against which comparisons can be made. In addition to failing to provide a known error rate, the testimony of fingerprint experts also lacks scientific studies upon which predictions of probabilities can be made. Lacking any such probability studies, latent print technicians do not offer opinions of identification in terms of probability. Indeed, the rules of their primary professional association, the IAI, actually prohibit latent print examiners from doing so. Instead of testifying regarding probabilities, latent print examiners make the claim of “absolute certainty” for their identifications. Examiners provide an opinion to the fact finder that the latent print at issue was made by a particular finger to the exclusion of all others in the world! Not even DNA experts make such bold statements. Such assertions of absolute certainty are inherently unscientific. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. See also Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev. 605, (March 2002).

F.        A complete lack of studies exists regarding the reliability of latent fingerprint examinations or any type of peer review.

            In addition to the lack of basic reliability studies, no testing has been conducted to determine the probability of two different people having a number of fingerprint ridge characteristics in common. And to the contrary, the studies and testimony of experts have shown people can have numerous ridge characteristics in common. See paragraph A above.

             This is in sharp contrast to the relatively new field of DNA analysis, where scientific testing has been done to calculate the probability of a

coincidental match. See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev.

605, (March 2002). David Stoney, a leading forensic science scholar, and a trained fingerprint analyst, has written:

            [T]here is no justification [for fingerprint identifications] based on conventional science: no theoretical model, statistics or an empirical validation process. Efforts to assess the individuality of DNA blood typing make an excellent contrast. There has been intense debate over which statistical models are to be applied, and how one should quantify increasingly rare events. To many, the absence of adequate statistical modeling, or the controversy regarding calculations, brings the admissibility of the evidence into question. Woe to fingerprint practice were such criteria applied! Much of the discussion of fingerprint practices in this and preceding sections may lead the critical reader to the question “Is there any scientific basis for an absolute identification?” It is important to realize that an absolute identification is an opinion, rather than a conclusion based on scientific research. The functionally equivalent scientific conclusion (as seen in some DNA evidence) would be based on calculations showing that the probability of two different patterns being indistinguishably alike is so small that it asymptotes with zero . . . . The scientific conclusion, however, must be based on tested probability models. These simply do not exist for fingerprint pattern comparisons”. See David Stoney, Measurements of Fingerprint Individuality, Advances in Fingerprint Technology at 331.

            The United States Department of Justice concurred in Mr. Stoney’s assessment when it began soliciting validation studies regarding fingerprint identification 2000. As the Department of Justice stated in its solicitation, “the theoretical basis for [fingerprint] individuality has had limited study and needs additional work to demonstrate the statistical basis for identifications.” See Solicitation, Nat’l Inst. Of Justice Forensic Friction Ridge (Fingerprint) Examination Validation Studies (March 2000). See also Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev. 605, (March 2002).

G.       Positive identification of fingerprints have led wrongful convictions

            Dr. Simon Cole, an assistant professor of criminology at the University of California-Irvine authored an article entitled More than Zero: Accounting for Error in Latent Fingerprint Identification which was published in the Journal of Criminal Law & Criminology with Northwestern University School of Law. Dr. Cole’s article details eighteen of the most famous instances of false positive identifications of fingerprints. In each of these cases, people were arrested and most spent considerable time in jail. This includes a recent case in 2004 when the FBI arrested an attorney in Oregon as a material witness in the Spain train bombings of that same year. After the FBI finger analysis stated that it was a 100% match, the lawyer, Mr. Mayfield was arrested and held for two weeks. It was ultimately learned that this 100% positive match was completely wrong. Mr. Mayfield was released with an official apology from the FBI.

October 11, 2009

Man confesses to killing wife, burying her in yard

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Uncategorized — Tags: , , , , , , , , , , , — Johnathan Ball @ 6:18 pm
Jeremy Roebuck
The Monitor

ALAMO — Nearly six months after he allegedly killed his wife, Jose Perez walked into the San Juan Police Department, flagged down an officer and confessed.

With no investigators on his trail and no evidence pointing in his direction, the construction worker in his early 50s told police Friday that he strangled his wife in May and buried her in the backyard of their home northeast of Alamo, San Juan Police Chief Juan Gonzalez said.

“He committed a heinous act. He committed murder,” the chief said. “I think it was just laying on his conscience.”

Hidalgo County sheriff’s deputies unearthed the badly decomposed body of Agapita Perez, 48, nearly eight hours later, after her husband led them through the crime scene.

In the months leading up to her slaying, Jose Perez had argued with his wife over his suspicion that she was cheating on him with a man in Reynosa, according to the account he gave police.

The couple called sheriff’s deputies to their home on the 8000 block of Jam Square Road four times from February to May to referee disputes between them. But on May 24, their argument turned fatal, Hidalgo County Sheriff Lupe Treviño said.

Not knowing their mother’s fate, the couple’s children asked sheriff’s deputies to check on their parents four days after she died.

Investigators visited the couple’s home but eventually called off their search when one of the couple’s sons said he had talked to his father on the phone and thought he heard his mother’s voice in the background.

“(Jose Perez) told him that they were in Reynosa and working out their problems,” the sheriff said. “There was no reason to believe they were in any danger.”

But by Friday, something had triggered Jose Perez’s guilt.

He first asked one of his sons to take him to the Donna Police Department just before 8 a.m. For some unknown reason, he changed his mind and asked to be driven to San Juan, said Gonzalez, the city’s police chief.

“He didn’t confess to his son,” he said. “He just told him that he had done something really bad and couldn’t live with it anymore.”

Because the house is outside city limits, the sheriff’s office was called in to take over the case.

Deputies spent much of the afternoon milling around the Perez family property waiting for a search warrant to dig up the earth. With Jose Perez by their side, they entered the backyard just before 2 p.m.

One of the man’s sons — looking on from behind crime scene tape — burst through a gate on an adjacent property to catch a glimpse of what his father would reveal, but family members eventually dragged him back behind police lines.

Investigators hope an autopsy of Agapita Perez’s body will corroborate much of her husband’s story. Without it, little evidence exists beyond his confession to convict him of murder, they said.

As of late Friday night, Jose Perez remained in the Hidalgo County Jail pending an arraignment hearing this afternoon where he is expected to be charged with murder.

Should he be convicted, he could face up to life in prison and a fine of up to $10,000.

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Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.

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October 4, 2009

Survivor mourns sisters’ deaths after expressway rollover

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , — Johnathan Ball @ 8:01 pm

Comments 8 | Recommend 4

October 03, 2009 2:15 PM
Jared Taylor
The Monitor

PHARR — The two vehicles paced each other as they headed north along Expressway 281 just before dusk Monday.

Esther Hernandez rode in the front passenger seat while her twin sister, Mary, was behind the wheel. Their brother, Raul, and their kid sister, April, sat in the back. The family was headed to Esther’s apartment in Edinburg.

But suddenly, Esther told her sister to watch out for the red Chevrolet that crossed into their lane. Mary swerved to the right, then left, then right again before losing control of the white Ford Explorer.

“We just started flipping,” the 20-year-old Esther said Thursday afternoon. “It was just so fast — up and down, up and down — until we landed.”

Raul called out for Esther. And Esther screamed for her twin sister.

“She wouldn’t answer,” Esther said. “There was blood on the street. I saw my baby sister in the middle of the expressway.”

Esther crawled out of the mangled SUV and ran to check on April.

Other motorists stopped to help them. The fifth-grader was able to nod and wiggle her fingers, they told Esther. The little girl seemed OK.

But the driver of the red Chevrolet was nowhere to be seen, Esther said.

Pharr police said Mary died on impact. April was not OK after all and succumbed to her injuries as an ambulance took her to McAllen Medical Center.

“I don’t know what she was doing,” Esther said of the other driver. “She left. She didn’t stop.”

Esther and her 16-year-old brother came out of the crash with relatively minor scrapes and bruises.

The past week has been a bloody one on Hidalgo County roads. In addition to the Hernandez sisters, three others have died in auto wrecks, including a father and daughter killed Friday and a woman who was killed in a head-on collision on Sept. 26.

The worst can happen when drivers are careless on the highway, said Trooper Johnny Hernandez, a local spokesman for the Texas Department of Public Safety.

“It’s people not paying attention,” he said of the driver who left the scene of the crash that killed the two sisters. “They’re not paying attention to their destination. They’re not paying attention to their driving.”

The driver of the red Chevrolet car that presumably caused Monday’s wreck turned herself in at the Pharr Police Department late Tuesday evening, investigators said. Police have withheld her identity and continue to investigate the crash.

“She admitted that she was the (driver of the other) vehicle, because she was there,” Lt. Guadalupe Salinas, a Pharr police spokesman, said last week.

Whether she will face any charges and what they may be remain to be seen.

“I would want at least for the cops to do something,” Esther said. “She caused the accident. Why would she run and not try helping us? It was her fault.”

Authorities regularly cite drivers for reckless driving and other traffic violations that could otherwise result in what occurred along the expressway at the Nolana exit Monday, Hernandez said. Drivers cited for reckless driving typically say they weren’t paying attention.

“We get distracted with our cell phone, with our radio, eating, whatever,” Hernandez said. “It’s something where these distractions need to be avoided.”

On Thursday, the family of the two dead sisters greeted hundreds of mourners who gathered to pay their last respects at an open-casket wake.

Esther described her twin as “always friendly” and “a friend to everyone.” April, their younger sister, was “super strong” and a proficient student.

“She hadn’t even experienced anything,” Esther said.

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Jared Taylor covers law enforcement and general assignments for The Monitor. You can reach him at (956) 683-4439.

September 27, 2009

H.G.N. (Horizantal Gaze Nystagmus) Texas

Filed under: Guide to DWI,McAllen Texas DWI Lawyer — Tags: , , , , , , , , , , , , , , , , , — Johnathan Ball @ 11:45 am

Pharr woman dies in head-on collision

Filed under: Uncategorized — Tags: , , , , , , , , , , , — Johnathan Ball @ 9:32 am
Nick Pipitone
The Monitor

ALTO BONITO — A Pharr woman died in a head-on collision here on Expressway 83 early Saturday morning.

Julia Reyes, 53, and her husband were traveling east about 6:18 a.m. when a Chevrolet pickup traveling on the wrong side of the road collided with them, said Johnny Hernandez, a spokesman for the Texas Department of Public Safety. Reyes’ husband was taken to McAllen Medical Center and treated for multiple injuries. He was listed in stable condition late Saturday.

The driver of the Chevrolet pickup was taken to Rio Grande Regional Hospital in McAllen and treated for abdominal pains. The vehicle’s three passengers sustained only minor cuts.

Police are waiting for the results of a blood test to determine if the truck’s driver, Reynosa resident Miguel Aleman, was intoxicated.

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Nick Pipitone covers McAllen and general assignments for The Monitor. He can be reached at (956) 683-4446.

May 26, 2009

Large Marijuana Bust in Pharr, Texas

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , , , , , — Johnathan Ball @ 2:46 pm

Police bust 1,600 pounds of marijuana at Pharr truck stop

Comments 20 | Recommend 0

May 26, 2009 – 8:38 AM
Jared Taylor
The Monitor

PHARR — Police busted more than 1,600 pounds of marijuana at a truck stop here last weekend.

The bust happened Saturday afternoon at the Silver Spur Truck Stop, 2705 N. Cage Boulevard, after a police canine unit was patrolling the parking area, Pharr police said in a statement.

The dog alerted police of a strong narcotics odor emanating from a black 2001 Freightliner Tractor and a white 1998 Freuhauf trailer parked at the truck stop. The vehicle and trailer were unoccupied, police said.

Officers took the tractor trailer to the Pharr-Reynosa International Bridge port of entry, where it was x-rayed and 96 bundles of marijuana weighing 1,677 pounds were discovered inside.

The drug bust remains under police investigation

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