I'm working on a presentation for NCDA on unusual defenses to murder cases. I've got the well-known ones: the Twinkie Defense, Prozac made me do it, post-traumatic stress syndrome, etc.

But what are the unusual ones you have seen. And, were there any interesting pretrial motions filed in those cases? If you have any of those motions, any interesting photos or video, I would appreciate a copy to use in the training.

In 1998, in the Honorable Julie Gonzales' court, misdemeanor - El Paso, Fernie Chacon (known by all who love him as Fernie the Attorney) defended the run of the mill DWI, with a blow over .10. His contention...

As best I understood it at the time ... His client was a painter (house, not artist) and worked around a high volume of flammable liquids that had an alcohol content. He was a fat man (the client), and breathing in all the paint thinners, etc..., his fat cells stored the alcohol that he breathed in, so the blow was probably the paint thinners, etc.... Basically, I think we called it the spontaneous human combustion defense, and laughed (privately, not in front of the jury) that it was a good thing the officer pulled him over and arrested him before he expoloded.

It really was an amusing defense. He was found guilty.

Here is an interesting defense that came up during a motion to revoke probation case in which the defendant had tested positive for cocain. The defendant claimed that she did not use drugs and that she did not knowingly or intentionally ingest drugs. When asked how the the drugs got into her system, she stated (in more detail than I will post) that she was gay and that the only thing she could think of is that during oral sex with her girlfriend that the drugs may have gotten into her system. According to the defendant, her girlfriend would sometimes put cocain in her vagina. I have not come up with a name for this defense. The defendant was revoked.

I prosecuted a gang murder case in which a gang member was beaten and removed to a car in San Antonio, then driven to Hays County were he was taken out of the car and shot in the back of the head, then left in a ditch. Several fellow gang members testified that the defendant, who was listed in some paperwork we found as the gang's "enforcer"," had told them about how he had gone with the group that took the victim away and then shot the victim with a gun provided by one of the other gang members.

His defense was that he wasn't really even in the gang, he had gotten out and was just hanging with some of his old buddies. Then he had been told to come along with the kidnappers and was forced to watch in horror as they transported the victim to the execution spot, and a gang member who he only knew by a nickname had then shot the victim. He said they told him, "This is what happens to you if you cross us" (or words to that effect.) Then they had taken him to Austin and dropped him off.

I actually presented this story to the jury myself, through a videotaped statement to police, because it proved through the defendant's own words that he was present at the scene of the shooting, which I had no direct evidence of otherwise. Despite his efforts to minimize his involvement and create a doubt, his "defense" actually helped me solidify my proof that he was the actual shooter.

The lesson I might offer your audience from this anecdote is that a defendant may tell an exculatory story, but you can many times pick out admissions that will help you and convince the jury to ignore the obvious lies.

An excellent point, Wes, and one I will add to the presentation. We teach cops to take statements, even if the defendant is telling nothing but lies. You can disprove lies.

Most unusual mitigation defense for why a meth cook couldn't go to the pen... "If I go to the pen there won't be anyone to look after my pet racoons!!" [Insert banjo music here]

Carlos, I've also had the oral sex made me test positive defense. It didn't work here either.

Your raccoon story reminds of another punishment "defense" that I hear all the time. "I can't go to jail, who will care for my family?" As if there is somehow a societal benefit to having these jobless criminals raising children and sponging off their wives/girlfriends (who often have jobs).

(Sorry to get off topic, since this has nothing to do with defenses in murder cases)

Wes, maybe you should be paying some sort of fee for the therapy. But, hey, if it makes you feel better to get it off your chest, we are here to listen.

Defendant, Lady Rancher, ate some not so fresh badger from the road, saving the pelt of course, and it made her very ill. That coupled with the partial fifth of vodka she drank immediately after her cattle trailer straddled the guardrail on the highway at about 11:00am made her extremely intoxicated after the accident but she was not intoxicated before. The drinking of alcohol immediately after the accident was a trick I saw on The Practice so it wasn't very original but the badger story I actually believe to be true.

Years ago, a couple of local defense attorneys presented the "urban survival syndrome" defense. It was a little before my time but I believe the defense was that the defendant reacted to behavior or gestures that would seem innocuous to someone who was not used to living in the violent world of the "inner city" streets.(qoutation marks because Ft. Worth really has no inner city). The person who suffers from this syndrome will launch a preemtive strike against the perceived threat. Maybe an old Tarrant County hand will post and give a more complete discription. The North Carolina Law Review has a good discussion of a number of odd defenses.
74 N.C.L. Rev. 731, March 1996.

I remember, around 97 or 98 reading a headline in the paper about a father shooting a step-daughter to death and receiving probation. This was a Dallas case. Seems the step daugher was 40ish, and a real pain in everyone's back. The family members, the VICTIM'S family members got up and testified about what a pain in the back she was, and I think they all alluded that she deserved it. The old faithful 'she needed killin' Texas defense. The jury found him guilty but probated the sentence of the shot gun killin of the step daughter. It may not be far east Texas enough, but parlay the defense to the tune of bad banjo music.

We have a motion to suppress a confession on Indecency with a child coming soon. The grounds will be an Advil overdose.

I guess this is as good a place as any to post this: this week during a Jackson v Denno hearing, the defense lawyer argued that the confession had to be suppressed because his client was invoking his right not to testify thereby making himself unavailable. If we introduced the statement, the defense would be denied confrontation. (Otherwise the defense was not ineffective) This reading of Crawford is as novel as it gets.

One of our prosecutors is trying a capital murder against a woman who participated with two men in the abduction, robbery, rape, and strangulation murder of a female victim in our county, and the female defendant is trying to put on experts on the Battered Woman's Syndrome (BWS) to explain why her participation is excused by Duress.

I know there is a case from the CCA called Fielder where the Battered Woman's Syndrome (BWS) was used in the context of self-defense, but I have not seen it used before to try to establish Duress. Everything I have seen on the subject suggests it (BWS) does not support a duress defense. We have asked the judge to exclude her experts.

Ben,
I think I ended up inheriting your Mr. Urban Survival Syndrome.
I prosecuted a guy for a bar-room murder in Lubbock in about 1996. He had been no-billed in Tarrant County some years before for a drive-by attempted murder after claiming that his inner city upbringing had caused him to preemptively shoot at the other guy. So apparently your local attorneys had at least some success with that defense. At least enough to, unfortunately, allow my guy to stay on the street long enough to actually succeed in preemptively killing someone.
BTW, the defense didn't work the second time around.

Lisa, it didn't work here either. I have done some homework, though. The court excluded the evidence of the defendant's state of mind because self-defense was not raised. You see, poor Demon had shot the victim as a couple of Demon's hoodlum friends held him. You can read all about it at Daimien Demon Osby v State, 939 sw2d 787 (Fort Worth - 1997).

I thought this was in the nature of an unusual defense:


Mullican v. State

(Tex.App. Dist.2 02/03/2005)
John Cayce Chief Justice
2-04-142-CR

OPINION

Appellant Cliff Neal Mullican appeals his conviction for possession and promotion of child pornography. In a single point, appellant contends that the trial court erred in denying his motion to suppress. Appellant argues that the trial court should have suppressed the pornographic images of children taken from his computer because they were personal writings not subject to seizure with an evidentiary search warrant. We will affirm.

In October 2003, a detective from the New York Police Department's Computer Investigation and Technology Unit notified the Texas Attorney General's Cybercrime Unit that child pornography was being disseminated from an Internet Protocol ("IP") address in Granbury, Texas. The IP address was traced to appellant's roommate. A search warrant authorizing the seizure of computer hardware, software, peripherals, files, and three specific images of child pornography from the residence appellant shared with his roommate was obtained and executed. During the search, law enforcement seized appellant's hard drives and diskettes, which contained approximately one thousand images of child pornography.

Appellant was charged with three counts of promotion of child pornography and seven counts of possession of child pornography. The trial court denied appellant's motion to suppress the pornographic images of children seized under the search warrant. A jury found him guilty of the offenses charged and assessed punishment at twenty years' incarceration for promotion of child pornography and ten years' incarceration for possession of child pornography.

Appellant argues that the trial court should have suppressed the pornographic images of children taken from his computer because they were personal writings not subject to seizure with an evidentiary search warrant issued under article 18.02 of the Texas Code of Criminal Procedure.*fn1 The state argues that pornographic images of children do not constitute personal writings and that, even if they did, the personal writing exception would not apply because the search warrant was not "evidentiary."

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.--Fort Worth 2003, no pet.). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Harrison v. State, 144 S.W.3d 82, 85-86 (Tex. App.--Fort Worth 2004). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Best, 118 S.W.3d at 861-62. However, we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53; Harrison, 144 S.W.3d at 86. Because appellant's point does not turn on the credibility and demeanor of witnesses, we will review the trial court's denial of appellant's motion to suppress de novo.

Article 18.02 of the code of criminal procedure sets forth the rules governing the issuance of search warrants in Texas. See Tex. Code Crim. Proc. Ann. art. 18.02. Search warrants may issue for any of the nine items listed in sections one through nine of article 18.02. Id. Among the items listed is "any property the possession of which is prohibited by law." Id. art. 18.02(8).

A search warrant may also be issued under article 18.02(10) to search for and seize "property or items, except the personal writings of the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." Id. art. 18.02(10). A search warrant issued under this article is referred to as an "evidentiary warrant." See Lindley v. State, 736 S.W.2d 267, 274 (Tex. App.--Fort Worth 1987, pet. ref'd); Scott v. State, 868 S.W.2d 430, 432 (Tex. App.--Waco 1994, pet. ref'd).

The pornographic photographs seized in this case constituted "property the possession of which is prohibited by law," which may be the subject of a warrant issued under article 18.02(8).*fn2 The photographs may also be characterized as "property or items . . . constituting evidence of an offense." Tex. Code Crim. Proc. Ann. art. 18.02(10). They do not, however, constitute "personal writings of the accused." Id. Personal writings refers to writings like diaries, memos, and journals that were not intended by the writer to be published to third parties, Reeves v. State, 969 S.W.2d 471, 486 (Tex. App.--Waco 1998, pet. ref'd), and personal, nonbusiness letters, Nikrasch v. State, 698 S.W.2d 443, 448 (Tex. App.--Dallas 1985, no pet.). These forms of personal written expression do not include pornographic photographs of children.

We hold that the pornographic photographs of children found in appellant's computer were properly seized under article 18.02 of the code of criminal procedure and were not appellant's personal writings. Accordingly, we overrule appellant's sole point and affirm the trial court's judgment.

PUBLISH

Opinion Footnotes

*fn1 See Tex. Code Crim. Proc. Ann. art. 18.02(10) (Vernon Supp. 2004-05). Evidence obtained in violation of article 18.02 is not admissible as evidence against the accused in the trial of any criminal case. Id. art. 38.23.

*fn2 Tex. Code Crim. Proc. Ann. art. 18.02(8). Possession of child pornography is a third-degree felony, and the promotion of child pornography or possession of child pornography with the intent to promote it is a second-degree felony. Tex. Penal Code Ann. ? 43.26(a), (b)(3), (e), (g) (Vernon Supp. 2004-05).

Parkinson's Drug Is Linked to Gambling
July 11, 2005 5:49 PM EDT

CHICAGO - Joe Neglia was a retired government intelligence worker with Parkinson's disease when he suddenly developed what he calls a gambling habit from hell. After losing thousands of dollars playing slot machines near his California home several times a day for nearly two years, Neglia stumbled across an Internet report linking a popular Parkinson's drug he used with compulsive gambling.

"I thought, 'Oh my God, this must be it,'" he said. Three days after stopping the drug, Mirapex, "all desire to gamble just went away completely. I felt like I had my brain back."

I've a case in which the defendant made his girlfriend take him to a church "to be baptized." He convinced a church employee to let him in, but when he came in, followed by his grilfriend and her chihuahua, he was told the dog would have to remain outside. He then took the dog and threw it forcefully into the baptismal font. He was forced to leave, at which point he drove off, nearly striking a workman in the road, who was only saved by a co-worker who pulled him out of the way at the last moment. A short distance away from the church, he drove into a ditch. He was observed by bystanders apparently "helping" his girlfriend out of the car. They soon realized he was actually assaulting her when he began to drag her around and punch her, and the bystanders stepped in until police arrived. Defendant was taken into custody after resisting arrest and injuring one of the officers involved. The dog was found injured in the ditch, and the girlfriend reported that defendant had tried to break the dog's neck by twisting its head.

Here's the defense: Defendant claims he was smoking marijuana laced with formaldehyde and he was delusional at the time and thought that the dog was "Satan" and his girlfriend was "the devil." He states that he voluntarily smoked the weed, but did not know about the other chemicals it had been tainted with.

Assuming his story is true, any thoughts on whether he wins an insanity defense? He is smoking an illegal substance that he knows will intoxicate him, which would normally exclude the insanity defense. Is it no longer voluntary intoxication if the substance is more intoxicating than he assumed it would be? (Setting aside, for the moment, the issue of how one could put something near your face that had been soaked in formaldehyde and not realize it.)

Don't dealers usually charge more for a 'wet' joint? Does he roll his own? Did the preservative fairy come in and dip his blunt while he wasn't looking?