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Lujan v. State, No. PD-0303-10, 2011 WL 93025 (Tex. Crim. App. Jan. 12, 2011).

On petition for discretionary review, the Texas Court of Criminal Appeals approved the use of K-9 units at a stationary traffic checkpoint implemented with the stated purpose of merely identifying unlicensed and uninsured drivers.

Lujan was traveling through El Paso with a passenger, when he came upon a stationary traffic checkpoint set up by local police.  Lujan did not have a driver’s license.  He was asked to pull over and was questioned about his activities that night.  The officers discovered that Lujan’s passenger had outstanding warrants, and the passenger was removed from the vehicle.

Deputy Hernandez, who was assigned to the checkpoint, testified that the checkpoint’s purpose was to detect unlicensed and uninsured drivers.  Hernandez’s police unit included a K-9 handler, who was also present at the checkpoint.  According to one of the officers, Lujan began acting extremely nervous.  A pat-down search revealed over $1,000 in Lujan’s pockets.  The officers obtained permission to search the vehicle, and the K-9 unit immediately alerted to the presence of drugs.  Drugs were then discovered hidden in the car’s door panel.  On cross-examination, Deputy Hernandez testified that his unit is not merely a traffic unit but is a criminal interdiction unit that handled “multiple tasks including racing, DWI, traffic enforcement, and narcotics.”  Another officer testified that the unit would investigate any violations they uncovered, not just unlicensed or uninsured motorists.

The trial court denied Lujan’s motion to suppress, and the El Paso Court of Appeals reversed.  The El Paso court cited the well-established rule that a traffic checkpoint may be used to detect unlicensed or uninsured motorists, but a checkpoint whose primary purpose is to detect general criminal wrongdoing is impermissible under the Fourth Amendment.  The court determined that the use of K-9 units and the testimony that any violations uncovered would be investigated rendered this traffic checkpoint unconstitutional.

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Publisher's Note:  The following is Brandy Wingate's first post on this blog.  Please join me in welcoming Brandy to the blogosphere!

In a splintered decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), which provided for review of a jury verdict in a criminal case for factual sufficiency of the evidence.  Judge Hervey wrote the plurality opinion announcing the judgment of the Court, joined by Presiding Judge Keller and Judges Keasler and Cochran.  Despite joining the plurality, Judge Cochran also filed a concurring opinion, in which Judge Womack joined.  Judge Price filed a dissenting opinion, joined by Judges Meyers, Johnson, and Holcomb.

Judge Hervey’s opinion begins by stating that the Court was called consider whether “there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia and a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both standards.”  Judge Hervey concluded that “these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both.”  Thus, the plurality would overrule Clewis and hold that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”

Judge Hervey wrote that the distinction between these two standards was supposed to be that in a legal sufficiency review, the court views the evidence in the light most favorable to the verdict, while in a factual sufficiency review, the court views the evidence in a “neutral light.”  Judge Hervey noted that Clewis, however, required reviewing courts to afford “’appropriate deference’ to the jury's credibility and weight determinations.”  Judge Hervey concluded that, by requiring “appropriate deference” to a jury’s credibility and weight determinations while also requiring a neutral review of the facts, Clewis’s factual-sufficiency standard was contradictory and “barely distinguishable” from the Jackson legal-sufficiency standard.

Judge Cochran’s concurrence expressed the view that adopting Clewis in the first place was a misguided attempt to apply civil standards of evidentiary sufficiency to criminal cases, which require proof beyond a reasonable doubt.  “The evidence in this case is either sufficient to support appellant's conviction under the constitutionally-mandated Jackson standard or it is not.  It cannot be ‘semi-sufficient.’”  Thus, Judge Cochran and Judge Womack agreed that “it is time to consign the civil-law concept of factual sufficiency review in criminal cases to the dustbin of history.”  The result:  five members of the court agreed that Clewis has no place in Texas jurisprudence, and factual sufficiency review is dead.

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