Badass Brett Busby Comes to the Supreme Court of Texas

Governor Greg Abbott appointed Houston Fourteenth Court of Appeals Justice Brett Busby in February 2019, and Busby was confirmed by the Texas Senate in March 2019. He had had about six years of experience on the Houston bench. He is presently the Chair of the State Bar of Texas Appellate Section and was formerly an adjunct professor at the University of Texas Law School, where he taught the U.S. Supreme Court Litigation Clinic.

Justice Busby clerked at the U.S. Supreme Court for Justice John Paul Stevens and also for retired Justice Byron R. White. He argued one case and briefed many others before the U.S. Supremes.. He also handled dozens of  Supreme Court of Texas appeals and the federal and Texas appellate courts while in private practice. He is Board Certified in Civil Appellate Law. He also clerked for Judge Gerald Bard Tjoflat of U.S. Court of Appeals for the Eleventh Circuit.

He grew up in Amarillo and Austin. He graduated with high honors from Duke University and Columbia Law School. 

He has chaired the Texas Access to Justice Commission’s Rules and Legislation Committee and also served on the Texas Supreme Court Advisory Committee. He also has been Chair of the State Bar Committee on Pattern Jury Charges for th Business, Consumer, Insurance, and Employment Volume. He is an elected member of the American Law Institute and writes and speaks frequently at continuing legal education conferences.

A life-long violinist, he is a member of the Houston Symphony Board. He is chair of its Artistic Affairs Committee and he previously chaired the Music Director Selection Committee. He plays in the first violin section of the Houston Civic Symphony and has served on the boards of the Post Oak School and the Foundation for Jones Hall.

Justice Busby is married. His wife is named Erin. He met her while clerking at the U.S. Supreme Court. They have two children.

Whither Warrantless Blood Alcohol Testing after McNeely? Contrasting Views from Houston's 14th

Facts: Douds, apparently intoxicated, drives his wife from a party and hits another car occupied by other people leaving the party. Douds's wife complains of  chest and rib pain and that she cannot move her right arm. She refuses to transportation to the hospital by the EMTs, instead leaving the scene with the driver of the car hit by her husband. A police officer-- Tran-- arrests Douds and seeks a breath test from him. Douds refuses, and Tran takes him to a local medical center for a mandatory-- that is, warrantless-- blood draw. Douds moves to suppress admission of the blood specimen against him and also seeks to have the warrantless specimen law declared unconstitutional. Tran testifies that he required the blood draw based on the totality of the circumstances, because the wife was injured and would need medical attention. On cross-examination, Tran admits that Douds's wife did not promise to go to a hospital, but Tran maintained that he thought that the lady would seek medical care that night.
The trial judge refused the motion to suppress. Douds pleaded guilty to a reduced charge, but appealed the denial of the suppression and the overruling of the constitutional challenge. Justice William J. Boyce, writing for himself and Justice Martha Hill Jamison, held that the trial judge had found that Tran's testimony credible, and that that was the basis of the denial of the motion to suppress.  Because the trial judge had been able to assess Tran in person while the only thing the justices had was a cold record, the justices were loath to second-guess the trial court, and so affirmed on that issue.
As to the constitutional challenge, Schmerber v. California, 384 U.S. 757 (1966) upheld a warrantless blood draw in an intoxicated driving case against a self-incrimination objection and Missouri v. McNeely, ___ U.S. ___, No. 11–1425 (Apr. 17, 2013) sustained suppression of a warrantless blood draw alleged justified because the dissipation of alcohol from the blood took place so quickly that taking the time to get a warrant was never necessary. The majority of the panel held that Douds's was a different case. Texas's law did not, as the objectionable law in Missouri did, just allow all drunk-driving blood draws. Instead, it set up specific, limited circumstances  under which such blood draws will be allowed. Douds, they argued, had not shown why those circumstances did not constitute exigencies that would excuse the lack of  a warrant, and so upheld the law.
Justice J. Brett Busby dissented; a warrant is required for a blood draw anytime, he said, that there was no exigency or emergency making a warrant impractical or impossible, which is what is required to satisfy McNeely.
Busby's view does seem to me to be consistent with the principle that for a search, a warrant is presumed necessary unless there is a legally recognized excuse. As communication technologies improve, there are fewer and fewer excuses for not getting a warrant. Hence the no-refusal weekends of my home Montgomery County Texas.
Kenneth Lee Douds v. State of Texas, ___ S.W.3d ___, No. 14-12-00642-CR (Tex. App.-- Houston [14th Dist.] Oct. 15, 2013, no pet. h.)

Houston's Fourteenth Court of Appeals Overturns Improper Strikes of African Americans

Robert Nathaniel Jones appealed his felony conviction for possessing a controlled substance. He said that the State peremptorily struck an African-American veniremember in violation of Batson v. Kentucky, 476 U.S. 79 (1986). He claimed that the State’s explanation for striking one African-American veniremember applied identically to three non-African-American veniremembers who ultimately served on the jury.

The State said that, after striking less favorable veniremembers, it used its final strikes against veniremembers who rated law enforcement in their community a “seven” on a scale of one to ten. It said its strategy was to “str[ike] everybody who was a six [on law enforcement] and then everyone who was a seven, up until [it] got to the point of . . . [veniremember number] 26 or 27,” where it “ran out of strikes”; it “took seven or lower and just moved up the scale from [veniremember number] one.”

The trial court should not have accepted this explanation because it is against the record. When the State struck veniremember number twenty-four, an African American, it skipped over two non-African-American veniremembers with lower numbers who also gave law enforcement a score of seven. Additionally, the State’s strikes revealed disparate treatment of African-American veniremembers. So Justice J. Brett Busby, writing for a panel including Chief Justice Kem Thompson Frost and Justice Marc W. Brown reversed and remanded the case for retrial.

Trial lawyers, Batson error is very rarely properly preserved, but that’s old news for readers of this blog.

Robert Nathaniel Jones v. State of Texas, ___ S.W.3d ___, No. 14-12-00515-CR (Tex. App.-- Houston [14th Dist.] ) Oct. 1, 2012) (no pet. h.)