Texas Stamp

OSPA Offers Practically Free Traffic-Stop Training for Rural Law Enforcement

Assistant State Prosecuting Attorney John R. Messinger will conduct a 4-hour presentation covering 4th Amendment issues with a focus on traffic stops.  The presentation is accompanied by a paper (distributed in advance) and includes:

∙ Historical perspective
∙ In-depth coverage of controlling law
∙ Discussion of recent cases and pending issues
∙ A quiz!

This service is for small or rural counties that do not have the resources to send officers for training.   Credit can be earned with a department’s approval. 

 

Call ((512) 463-1660) or email (information@spa.texas.gov) John to schedule a training day for this August (August will be the only time the service is offered).   

The department, county, or city will be responsible for John's mileage reimbursement and overnight residency (if needed). 

BOWMAN, RICHARD MARK

PD-0208-16 03/09/2016

  1. "Upon analyzing the applicability of the equitable doctrine of laches, this Court has established a framework for review under the totality of the circumstances. The court of appeals erred when it did not faithfully apply this framework and, instead, diminished the importance of faded memories and wholly failed to consider appellant's reason for delaying more than seven years in bringing his claim."
  2. "The court of appeals granted relief for ineffective assistance of counsel because the trial attorney did not investigate the specific stats regarding the detaining officer's overtime pay for impeachment purposes, which it considered a local defense custom. The court of appeals failed to give proper deference to the trial court by ignoring evidence that investigation of this specific officer was not so pervasive as to be a professional standard, failed to actually consider whether such evidence would be admissible, and overlooked that its argument against prejudice on the State's laches claim should preclude prejudice in appellant's ineffective assistance of counsel claim."

Bowman sought 11.072 habeas relief from his 2005 conviction for DWI after the State alleged it as an enhancement for a subsequent DWI charge. Bowman alleged that his trial counsel rendered ineffective assistance because he failed to impeach the arresting officer with his payroll records showing overtime in excess of his regular pay for appearing in court in DWI cases. In support, Bowman submitted affidavits from defense attorneys stating that they had obtained the records and successfully damaged the officer's credibility by revealing his financial motivations.

The trial court concluded that Bowman's claim was barred by laches because the State would be prejudiced in re-trying a case over ten years later. It also determined that counsel was not ineffective because he elicited testimony about the time-and-a-half overtime pay the officer received for testifying and that he made 476 arrests the previous year. The trial court found that counsel's decision not to "beat up" on the officer and risk angering the jury was a reasonable strategic decision.

The court of appeals held that laches does not apply because the evidence showed that the State would be able to retry Bowman. Though all the officers could not independently remember the case, they were able to recall pertinent facts after refreshing their memories with the video of the stop and arrest and their reports. The court of appeals also disagreed with the trial court's merits ruling. It held that counsel's failure to obtain the payroll records detailing the overtime abuse was not reasonable and Bowman was prejudiced because the State relied heavily on the officer's opinion as to Bowman's intoxication. The officer's credibility was crucial to the conviction.

The State contends that the court of appeals failed to consider whether Bowman's delay should be excused. It claims Bowman did not justify the delay; he made a calculated decision not to appeal after consulting with three attorneys, each of whom believed there were no meritorious grounds. Thus, not all competent attorneys would have known to use the payroll records. Further, Bowman waited until he was charged with DWI for a second time to seek counsel; a defendant should not be permitted to "sleep on his rights" and complain about the first conviction only when he was later subject to enhanced punishment on a second offense. The State also contends it is prejudiced because of the delay. Though the officers could "regurgitate" what they said at the first trial, there were "facts of consequence" that they could not remember, which would permit defense counsel to berate them for lack of knowledge in their testimony.

The State also contends that counsel was not ineffective because he was able to present the financial motivation defense. That other attorneys would have obtained the payroll records does not mean that all would because, as Bowman's delay excuse shows, three other attorneys would not have known to do so. The more aggressive route of presenting the records could have alienated the jury. And, according to the State, no prejudice has been shown because the records would have been inadmissible extrinsic evidence. Further, because events were on video, Bowman was not prejudiced given the degree the primary officer was already impeached.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701

Phone

(512) 463-1660

Fax

(512) 463-5724