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Fort Worth is Dead Wrong

This topic can be found at:
http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/355109892

September 10, 2004, 14:16
JB
Fort Worth is Dead Wrong
OK, now I'm really mad. The Fort Worth Court of Appeals has held that passengers in a car can't be asked for their true name. And, if you discover they have an open warrant, you can't execute it. What the heck???

But, that's what they said. Read the opinion so you too can get mad.

Is anyone in the appellate division in Fort Worth mad, too? Will we soon be seeing a PDR?
September 10, 2004, 14:59
BLeonard
That was a Hood County case, John, but I can tell you I pretty much stay mad at them.
September 10, 2004, 15:44
Stuart Neal
John,

This is my case. I have already filed a motion for en banc rehearing. I am sure it will be summarily denied and then I will file a PDR. This case is just wrong on the law and it aggrivates me to no end.
September 10, 2004, 16:39
Robert McGlohon
Amazing opinion. I had to read it twice. The court uses four Tex.Crim.App. cases that *upheld* passenger searches to *reverse* a passenger search.
September 10, 2004, 17:00
P.D. Ray
Stuart, after reading the opinion, I don't believe I could remain calm enough to explain to those *EDITED* that they have, in fact, completely lost their *EDITED*.

Good luck.
September 10, 2004, 19:30
Martin Peterson
It seems obvious that the asking of questions and use of the words spoken in response (if any) is neither a search nor a seizure. If the responses lead to probable cause to arrest there is no violation of the Fourth involved. I am not so mad as puzzled. How could three seasoned judges arrive at a different conclusion?
September 10, 2004, 23:22
Merrit
Stuart, keep in mind that a motion for reconsideration en banc will not extend your deadline to file a PDR. See Ex parte Sierra
122 S.W.3d 202 (Tex.Crim.App. 2003) (Johnson J., concurring in dismissal of PDR).
September 11, 2004, 07:15
JB
Would it help to have amicus motions for rehearing? Heck, you almost want to keep losing so you get a chance to go the the US Supremes for a very official Fort Worth Court of Appeals spanking.
September 13, 2004, 09:10
<Markus Kypreos>
"Because the balance of convenience and danger is no different for passengers in stopped cars, the Court's logic necessarily encompasses the passenger. This is true even though the passenger has committed no traffic offense. If the rule were limited to situations in which individualized inquiry identified a basis for concern in particular cases, then the character of the violation might justify different treatment of the driver and the passenger. But when the justification rests on nothing more than an assumption about the danger associated with every stop--no matter how trivial the offense--the new rule must apply to the passenger as well as to the driver."

Pennsylvania v. Mimms, 434 U.S. 106

Maryland v. Wilson, 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997) (extending Mimms rule to approve similar orders given to passengers of stopped vehicles).

You can order a passenger out of a vehicle, but you can't ask him questions before, during, or after?

Good luck, Stuart. Some very exciting stuff going on in Grandbury.
September 13, 2004, 16:31
J. Cleveland
The opinion addresses whether the passenger is arrested or detained. For passengers on traffic stops we file under (3) "requested information from a person that the peace officer has good cause to believe is a witness to a criminal offence." A traffic violation is a criminal offense. Then you can argue to the trial court that the George opinion is dicta and to be narrowly construed to situation in George.
September 14, 2004, 16:28
Stuart Neal
So I filed a motion for en banc rehearing in this case, still no word from the court on that motion. I am also working on the PDR so that if the rehearing is overruled I can file the PDR very quickly.

As I read the rules of appellate procedure i have 30 days from the date the court rules on the rehearing...is that correct?
September 14, 2004, 16:43
JB
As mentioned in the thread above, a motion for rehearing en banc does not stop the clock ticking on the period for filing a PDR.

If you file a motion for rehearing directed at the panel only, that does stop the clock. We often file a combined motion asking for rehearing from the panel and, in the alternative, en banc.

The safest thing to do is file the PDR. Sometimes the panel or court as a whole will see the error of their ways and correct it themselves rather than wait for a published CCA opinion saying they were DEAD WRONG.
September 14, 2004, 18:24
Merrit
You can ask the Court of Criminal Appeals for an extension of time to file your PDR. I have never heard of them not giving at least 30 days, given your situation you might get 45.

[This message was edited by Merrit on 09-14-04 at .]
September 17, 2004, 08:42
Stuart Neal
Yesterday I sent a darft of my PDR in this case to Betty Marshall in the State Prosecuting Attorney's Office. SHe is going to help me edit it and get it ready for filing with the Court of Crims to help ensure a thorough FW Ct of Appeals butt whippin
September 21, 2004, 14:54
TDohoney
John, up in the appealing world of Fort Worth, we're not "mad," nor are we angry and, sadly, nor are we surprised!

I need to ck this site more often -- how do ya'll have time? Yes, I was sipping Starbucks and reading though the week's opinions at my office on the Saturday morning of Labor Day weekend when I read the George opinion and promptly choked on my latte! Angry over the loss of enjoyment re my only vice, I promptly shot off an email to Matthew Paul describing how the George opinion had chucked holdings from at least 3 SCT cases (Maryland v Wilson, Michigan v. Long and, Hiibel) out the window and misread two CCA cases. Of course, Matthew replied after the long weekend and promised that either the SPA or Hood Co would file a PDR. Go Hood County! Mad
October 20, 2004, 10:57
JB
Today's decision in a similar case, certainly suggests the Fort Worth Court of Appeals is wrong. Read the CCA's opinion in Kothe v. State.
October 22, 2004, 16:43
Stuart Neal
I just got word that the Court of Appeals granted my Motion for en banc Rehearing. I guess they want to avoid an appeal to the CCA.

Oral argument is set for November 18 in Ft Worth.
October 22, 2004, 17:17
david curl
That's great. A truly rare and notable achievement. What does that do to your PDR? I guess if they withdraw their opinion within 30 days of your PDR being filed they won't lose jurisdiction under Rule 50.
October 22, 2004, 17:40
P.D. Ray
Get 'em, Stuart!
May 25, 2006, 11:59
david curl
New opinion in George came out today. Conviction reversed again on suppression issue in a 4-3 vote.