Thursday, October 28, 2010

Two Bites at the Apple for Indecency with a Child?

Ex Parter Amador - Tex. Crim. App. (Oct. 13, 2010)

Appellant pled guilty to and was convicted of indecent exposure after he was seen pleasuring himself in a public playground in El Paso.  Apparently not satisfied with the outcome of the first case, the State later attempted to prosecute him a second time for his actions, but this time under the offense of indecency with a child by exposure.  Appellant complained that the second indictment violated Double Jeopardy as he had already been convicted of an LIO for this same conduct.  Although the trial court and 8th District Court of Appeals did not agree with him, the Texas Court of Criminal Appeals came to his rescue.

Writing for the 5-4 majority, Judge Holcomb explained:

[D]ouble jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense…The Supreme Court has clearly stated that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”
The question then became whether the Indecent exposure under Section 21.08 is actually an LIO of Indecency with a child by exposure under Section 21.11(a)(2)(A).  The CCA has previously held, in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979), that it is.  The majority took this opportunity to reaffirm that holding, stating:

Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who “will be offended or alarmed” by the defendant’s act, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not “offended or alarmed” by the defendant’s act.
Judge Cochran joined the majority, but also drafted a short (and particularly humorous) concurring opinion, wherein she emphasized:
A defendant cannot be convicted of indecent exposure for “wagging his weenie” at 9:00 a.m. in the local park and then later be prosecuted for that very same act of “wagging his weenie” by charging him with indecency with a child by exposure.  
She went on to use the phrase “wagging his weenie” two additional times in her opinion.  Perhaps the result of a dare or a lost bet?  Don’t ask me.

In a 21-page dissent, Presiding Judge Keller, joined by Judges Keasler and Hervey would hold that
an indecent –exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims.
Judge Womack also dissented, but did not join Presiding Judge Keller’s opinion.  The majority reminds the dissenters that even thought the State can charge the defendant with the greater and lesser-included offense, the defendant cannot be convicted of and sentenced for both.  Presiding Judge Keller and the band of dissenters want two bites at the apple, even though the U.S. Constitution and the Supreme Court say you only get one.

Takeaway:  The rule, as announced in 1979 in Briceno, remains – Indecent exposure is an LIO of Indecency with a child by exposure under the Texas Penal Code.  A defendant cannot be convicted of and sentenced for both if the underlying conduct is the same.

Tuesday, October 26, 2010

CCA Expands the “Plain View” Doctrine, Erodes 4th Amendment Protection

Sound the alarms!  Fourth Amendment protections in Texas have been diminished by the Court of Criminal Appeals latest opinion in State v. Dobbs.

The “plain view” doctrine, as explained by the U.S. Supreme Court, provides that
A police officer who is lawfully on private premises pursuant to a warrant (or some legitimate exception to the Fourth Amendment requirement of a warrant) may also seize anything he discovers in plain view on those premises if it is ‘immediately apparent’ to him – this is to say, if he has probable cause to believe – that it constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure.
Minnesota v. Dickerson, 508 U.S. 366 (1993).  Expounding on this principle, the CCA, in White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987), held that
when police officers lack probable cause to believe items in plain view are contraband at the very instant they first see them, they must have probable cause to conduct any further investigation specifically designed to develop probable cause to authorize their seizure of those items.
However, as the CCA now holds, White is no longer good law.  In State v. Dobbs the CCA announced a new rule expanding the plain view doctrine to give law enforcement officers time to conduct further investigation into suspicious items that may not be ‘immediately apparent’ as contraband.

In Dobbs, officers were conducting a lawful search of appellee’s home when they discovered two sets of new golf clubs and several golf shirts having the name of a local country club stitched in them.  It was undisputed that the officers lacked probable cause to believe these items were contraband at the time they saw them in plain view (i.e. All parties agreed that the officers could not lawfully seize the items at the time they saw them).  Finding the items suspicious, however (perhaps the suspect did not look like an avid golfer?) the officers made a call to find out whether the country club had recently reported a burglary.  Once it was confirmed that the country club had, in fact, reported a burglary of golf clubs and golf shirts, the officer seized the items as evidence of a crime.

Prior to trial, appellee moved to suppress the items as fruits of an unlawful search, arguing that because the officers did not have probable cause to believe that the golf clubs and shirts were contraband at the instant they saw the items, the seizure of the same was unlawful.  The trial court, relying on the CCA holding in White, agreed and granted the motion to suppress.  The State appealed to the 5th District Court of Appeals (Dallas) which affirmed (again, based on White).  Like a Jack Russell Terrier with a never-say-die attitude, the State appealed again to the CCA, arguing that the Court’s prior holding in White overextended the legitimate scope of the Fourth Amendment. 

The CCA re-examined its holding in White and decided that it had indeed overextended the scope of the Fourth Amendment.  The CCA explained:

We now hold that, so long as probable cause to believe that items found in plain view constitute contraband arises while police are still lawfully on the premises, and any further investigation into the nature of those items does not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items is permissible under the Fourth Amendment.
The CCA further explained that its holding only applies to those cases wherein the officers further investigation does not incrementally impinge upon any protected privacy or possessory interest of the defendant.  For instance, if the officers in this case had seized the golf clubs and shirts and then called to investigate, the plain view exception would not apply.  
The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant.  So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised—but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.
NEW RULE:  Under the plain view doctrine, “immediately apparent” simply means that the viewing officers must have probable cause to believe that an item in plain view is contraband before seizing it.  Gone are the days when the officers must have such a belief at the moment they see the item.

Commentary: I agree with the court’s holding in this case so long as it doesn’t become of small step toward further erosion of the 4th amendment. The court’s reasoning is logical. The potential problem is in drawing the line regarding the length of time an officer may remain on the premises to investigate “suspicious” items that are not immediately apparent as contraband. If courts construe this rule too broadly, we could end up seeing officers just hanging around making calls to establish the plain view exception.

Monday, October 25, 2010

Grand Jury Errors Go to the Charging Decision, Not the Conviction

During the grand jury hearing for would-be defendant Ronnie Duane Mason, two police officers questioned a witness on the record, despite the fact that article 20.04 of the Texas Code of Criminal Procedure provides that only the attorney representing the State or a grand juror may question a witness. Mason was later charged with and convicted of capital murder and sentenced to life imprisonment.

On appeal, Mason argues that by allowing unauthorized persons to question a witness during grand jury proceedings, his substantial rights were violated. See Texas Rule of Appellate Procedure 44.2(b). The 7th District Court of Appeals (Amarillo) reversed the trial court ruling after concluding that the State’s unauthorized questioning caused harmful error. The Court of Criminal Appeals now reverses the 7th Court holding that the error did not affect appellant’s substantial rights.

The primary issue on appeal was whether the court must decide that the error affected the charging decision or the ultimate conviction/sentence. The State was arguing that the violation must affect the conviction and sentence, and conversely, appellant argued that it need only affect the charging decision.  The 7th Court agreed with appellant that a grand jury error must be analyzed for its effect on the charging decision. The CCA, borrowing Justice O’Connor’s reasoning from her concurring opinion in U.S. v. Mechanik, 475 U.S. 66 (1986), followed in line with the 7th Court, holding:
[A]ddressing a grand jury statutory violation, the proper subject of a harm analysis is the product of those proceedings; the charging decision.
The CCA did not concur, however, with the 7th Court harmless error analysis, stating:
We agree with the analytical focus chosen by the court of appeals, but we do not agree with its conclusion that the State’s actions caused harmful error.
Judge Womack concurred and would follow the Supreme Court majority opinion in Mechanik.

Takeway: A defendant/appellant must show that the grand jury error affected the charging decision in order to demonstrate a violation of his/her substantial rights. Great, but how do you do that with the one-sided transcript of a grand jury proceeding? Good luck.

Saturday, October 23, 2010

Stealing From Inside the Museum - Egyptian Artifacts Theft in Long Island Proves the Point

Loss prevention at a museum starts by examining internal practices. When pieces are missing from a museum, the first place to look for a suspect is inside. Fortunately, a museum's risk can be reduced by performing thorough background checks on prospective employees and by creating moderate institutional oversight practices.

While the vast majority of museum employees are honest and trustworthy, there are many unfortunate instances where missing objects turn up in the hands of museum workers. Last week the New York Post reported that a federal court sentenced the director of the Long Island University Hillwood Museum to a year and a day in prison plus a $5000 fine for stealing Egyptian artifacts from his own museum. Barry Stern admitted to exacting revenge on his employer when his contract as museum director was not renewed. He worked 22 years for the university.

The Post describes how Stern stole the artifacts from the museum, brought them to Christie's for auction, and claimed they came from the Barry Stern collection. Records of the objects' existence at the Hillwood Museum were wiped out. The pieces earned Stern $51,500.

(As a side note, one wonders how the auction house failed to conduct enough due diligence regarding the provenance of the objects, particularly where the pieces presumably had accession numbers associated with the objects.)

The International Foundation for Cultural Property Protection helps cultural institutions minimize the risk of theft. Any of our colleagues can assist museums with internal loss prevention.

Read more:

Wednesday, October 20, 2010

CCA Applies Estoppel Theory to Defendant Whose Counsel Helped Draft the Defective Jury Charge

Below are of few of the recently reported slip opinions from the Texas Court of Criminal Appeals that were designated for publication.

Defective Jury Charge on LIO
Woodard v. State - The defendant was indicted for murder but somehow convicted of an unindicted offense of conspiracy to commit aggravated robbery.  On appeal, he claimed that the trial court erred by instructing the jury on the conspiracy offense because, under the Almanza  factors, conspiracy to commit aggravated robbery is not a lesser included offense of murder.  The CCA concluded that if appellant had simply failed to object to the jury charge, he would be entitled to reversal under Almanza, but because the appellant actually helped draft the objectionable jury charge, the CCA applied an estoppel theory.
Our [past cases have] recognized that, if “the record showed that the appellant requested the charge on the [unindicted] lesser offense . . ., he would be estopped from complaining of its inclusion in the charge.” We believe that the record in this case fairly reflects that, at the very least, appellant had some responsibility for the jury instruction on the unindicted conspiracy to commit aggravated robbery offense.  The record reflects that appellant helped prepare the charge, including the instruction related to the unindicted charge of conspiracy to commit aggravated robbery, to which the State unsuccessfully objected.  This is a great deal more than just simply not objecting to the charge or just stating “no objection” to the charge.  Under these circumstances, we decide that appellant may not be heard to complain for the first time on appeal that the trial court erred to instruct the jury on the unindicted conspiracy to commit aggravated robbery offense.
In her concurrence, Presiding Judge Keller would take this case one step further and and adopt the doctrine of beneficial acquiescense, "by which a defendant who fails to object to an instruction on a LIO would be estopped from complaining on appeal." (Emphasis added).

Simply to note how curious she finds this case, Judge Cochran also concurred.

Capital Murder (Accomplice Liability)
Padilla v. State - CCA affirms appellant's conviction for capital murder as legally/factually sufficient under an accomplice theory of liability.

Tuesday, October 19, 2010

If You Want Your Art Back, Be Mindful of the Statute of Limitations

The First Circuit Court of Appeals decided the case of Museum of Fine Arts, Boston v. Seger-Thomschitz on October 14, 2010. Claudia Seger-Thomschitz, the heir of art collector Oskar Reichel, contacted the Museum of Fine Arts to reclaim Two Nudes by Oskar Kokoschka. Seger-Thomschitz argued that the painting left the hands Reichel because of Nazi coercion.

The Museum of Fine Arts spent 18 months researching the issue and concluded that Reichel sold the painting voluntarily. The Boston Globe published criticisms of this view in a May 2008 article. Nevertheless, the MFA sought an order from federal district court declaring that the museum legitimately owned the painting. The lower court ruled that the MFA rightfully owned the painting, and the court of appeals has now affirmed this decision.

The basis of the court of appeal's opinion is threefold. First, the district court's grant of a favorable judgment for the museum was proper on statute of limitations grounds because Seger-Thomschitz did not make a demand on the MFA within the three years statute of limitations under Massachusetts law. Second, the appeals court rejected Seger-Thomschitz's weak claim that the statute of limitations should bend in the wake of the non-profit section of the federal Internal Revenue Code [501(c)(3)]. Third, the court rejected her argument that the Massachusetts statute of limitations conflicted with America's foreign policy as expressed through the Holocaust Victims Redress Act of 1998, the Washington Conference Principles on Nazi-Confiscated Art, the Vilnius Forum Declaration, and the TerezĂ­n Declaration on Holocaust Era Assets and Related Issues. These proclamations are aspirational and not law, the court essentially declared.

The message in this case is clear: Where a party believes that art is improperly in the hands of another, the claimant must be conscious of the statute of limitations clock and perform the necessary due diligence to start a cause of action.

Two Nudes can be seen at

"Holocaust Historians Blast MFA Stance in Legal Dispute," The Boston Globe, May 28, 2008 at

Monday, October 18, 2010

County Attorney’s Conviction for Improper Influence Upheld by CCA

In Isassi v. State, the Kleberg County attorney, who made several phone calls to an assistant district attorney (and others) in an effort to have a criminal case against his aunt dismissed (while failing to disclose that the criminal defendant was his aunt), was convicted by a jury of the misdemeanor offense of “improper influence” (Section 36.04 of the Texas Penal Code). 
Section 36.04 provides that a person commits the offense of improper influence:

If he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on that basis of consideration other than those authorized by law.

On appeal, however, the 13th District Court of Appeals (Corpus Christie) reversed the conviction, holding that the evidence was legally insufficient to show that Appellant’s calls were made with the intent to influence the outcome of the criminal proceeding.  Deferring to the jury’s findings, the CCA reversed the 13th Court.  In doing so, the Court explained,

Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally.  The conduct [of the County Attorney] itself might be lawful, but if it was performed for an improper purpose, it falls within the criminal statute.  As Justice Holmes once noted, ‘Intent may make an otherwise innocent act criminal, if it is a step in a plot.’
In this case, after his aunt had been arrested (for evading arrest) the Appellant (County Attorney) called the assistant district attorney to whom the case had been assigned and informed her that the arresting officer was under investigation and that the State would not proceed with the case against his aunt (but he didn’t explain that she was his aunt).  The district attorney promised to look into it.  Appellant then called an officer with the county pretrial services (where his aunt had been ordered to report) and inquired about whether his aunt need report because the assistant district attorney was not going to pursue the case.  Despite his best efforts to convince all involved that the case shouldn’t proceed, Appellant’s aunt was indicted and convicted (pursuant to a plea agreement).  As a reward for his efforts, Appellant was convicted of 2 counts of improper influence for his interference with his aunt’s case.
On this issue of first impression in Texas, the Court of Criminal Appeals held:
If appellant’s motive and intent when he made these phone calls was to benefit his aunt by short-circuiting her prosecution for evading arrest, that was ‘an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.’ The law does not authorize the dismissal of criminal charges or the avoidance of standard bond conditions based upon the defendant’s familial or personal relationship to another, be it a judge, county attorney, or other official.
Appellant’s intent at the time he made these telephone calls was a matter for the jury to decide as a question of fact, taking into account all of the evidence and the credibility of the witnesses. (Translation: The 13th Court needs to get out of the jury box.)  [T]he jury, in this case, reasonably and rationally concluded, beyond a reasonable doubt, that appellant had the intent to improperly influence the outcome of his aunt’s criminal case on a basis not authorized by law.
With that, a majority of the CCA reversed the case.

Just after the CCA kicked the 13th Court out of the jury box, Presiding Judge Keller, joined by Judges Price and Holcomb, jump right back in.  In her dissent, Presiding Judge Keller writes:
If a defendant tries to get his aunt’s case dismissed because he wants to help his aunt, has he committed a crime? The Court says yes. I disagree. I think it is what the defendant says, not what he thinks, that makes an attempt to influence a public servant improper.
Unfortunately, for the dissenters (and the Appellant) the majority of the Court chose to follow the law and defer to the factfinders on this factfinding issue.

Thursday, October 14, 2010

How Did That Get There?

U.S. v. Gonzalez-Rodriguez - the 5th Circuit (Federal) took a look at what to do when drugs are hidden in a compartment of an indivudal's vehicle.

The Court explained that generally, a jury may infer that a defendant has knowledge of drugs in a vehicle when the defendant exercises control over the vehicle. However, when drugs are hidden in a secret compartment, guilty knowledge may not be inferred solely from the defendant’s control of the vehicle because there is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. In secret compartment cases, this circuit requires additional circumstantial evidence that is suspicious in nature and demonstrates guilty knowledge.

In this case there was sufficient suspicious circumstantial evidence to support the defendant’s conviction. First, a packing house manager testified that it would have been almost impossible for the methamphetamine to be loaded into the defendant’s trailer without detection at the warehouse where the load originated. Second, a witness testified that it would have been extremely difficult to unload the drugs from the trailer at the destination warehouse without detection. Third, there was a suspicious gap in time, from the time the defendant left the original warehouse, until the time he arrived at the Falfurrias immigration checkpoint where the Border Patrol Agents discovered the drugs. Fourth, the defendant had a key to the lock on the trailer and was able to open the trailer at the checkpoint. Finally, the 312.5 pound of methamphetamine that was seized was worth between ten and forty million dollars. A jury could reasonably infer that the defendant would not have been entrusted with such a large amount and high value of methamphetamine unless he knew he was part of the drug trafficking scheme.

Wednesday, October 13, 2010

CCA Upholds Death Sentence for Coble

Billie Wayne Coble was convicted of capital murder in 1990 and sentenced to death.  In 2007, the 5th Circuit Court of Appeals (federal court) granted habeas relief and remanded the case for a new trial on sentencing.  A second jury sentenced Coble to death and now the CCA affirms that sentence.  The opinion is 68 pages long and I'm sure it is chocked full of interesting material, but I don't have time to peruse it now.  For those of you that are interested, you can get the full opinion HERE.  Presiding Judge Keller concurred HERE.

No Free Speech Right to Flash Gang Signs

“Gang hand signs represent an integral part of [a gang’s] illegal activities.” As a tool to help eliminate gang-related public-nuisance activities, a Wichita Falls judge, pursuant to his authority under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code, issued a permanent injunction prohibiting members of a certain local gang from exhibiting gang hand signs (and from wearing “gang-related clothing”) . The injunction applied only to a small area of town (1.2 miles by 1.4 miles).

When one of the gang members that was subject to the injunction was later observed flashing “gang signs” while (surprise, surprise) wearing gang-related clothing, he was charged with violating the injunction. The gang member then challenged the injunction as a violation of his 1st Amendment right to free speech and as being unconstitutionally vague. Martinez v. State (CCA slip opinion of 6 October 2010 designated for publication)

First Amendment
The court’s first task in a free speech case “is to determine whether [the provision] is a content-neutral or a content-based time, place, and manner restriction. “ If the provision is content-based, the court must apply the strict scrutiny standard and the State must then show that the provision was narrowly tailored to serve a compelling state interest. In this case:
The court of appeals held that the gang hand sign restriction was not content-based because it prohibited all gang hand signs, not just those used by the VC street gang, and therefore was not focused on the particular message.
(See 2nd Court's unpublished memorandum opinion HERE).  The Court of Criminal Appeals, however, disagreed with the Fort Worth court's conclusion, stating:
The court of appeals’s reasoning would apply had provision sixteen banned all hand signs. However, the content of the gang hand signs and clothing provided the basis for the restrictions in provision sixteen and the purpose was to ban the message conveyed by such signs and clothing.
Nevertheless, the CCA upheld the injunction, holding that:
[t]he State has a recognizable compelling interest in ensuring the safety of citizens in the VC Safety Zone by preventing crime, and the judge’s order in this case was issued to protect that interest…The making of hand gang signs and the wearing of gang clothing are a primary feature of street gangs. A street gang is identified first and foremost though hand signs and attire; it puts public, and most of all, rival gangs, on notice of its existence and presence. Rivalries exist between street gangs, and the use of gang hand signs and clothing, the identifier, contributed to the onset of violence between gangs.
The CCA further explained that the provision was narrowly tailored by geography, noting that the judge’s order contained well-delineated geographic boundaries outside of which Appellant remained free to engage in making gang hand signs and wearing gang clothing.

"A Law is unconstituionally vague when it fails to define the criminal offense with sufficient definteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement." Rejecting the notion that the injunction was unconstitutionally vague, the CCA concluded that the judge’s order was “sufficiently clear so that [Appellant] could understand that VC gang hand signs and clothing were prohibited conduct. The CCA went on to state:
[Appellant], determined to be an active VC gang member by the district court judge (a fact he has never contested and ultimately admitted when pleading guilty), must have been aware of the gang’s identifying hand signs and clothing and therefore the precise conduct that he was charged with, and convicted of, violating.  Indeed, we note that the arrest report in cause number 39396-F reflects that [Appellant] told the arresting officer that the color of clothing that he was wearing were “his gang colors.” Thus, we find that his vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.
It appears from this holding that the CCA will give great deference to the reasonable requirements imposed by a judge under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code enjoining criminal street gang activity. Perhaps this case will serve as a license for more judges to get creative of dealing with Texas gangs. We’ll see.

Note:  Appellant also challenged the trial judge's authority to issue the injunction on a Separation of Powers theory.  It failed, but was interesting (at least to a nerd like me).

Friday, October 8, 2010

CCA (Plurality) Merges Legal and Factual Sufficiency Standards

Brooks v. State

In a sharply divided plurality opinion released this week, the Texas Court of Criminal Appeals overruled the factual sufficiency standard articulated in Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996), holding that the factual-sufficiency standard is “barely distinguishable” from the Jackson v. Virginia,  443 U.S. 307 (1979), legal sufficiency standard.  Judge Hervey writes:
We now take the next small step in this progression and recognize 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.  We, therefore, overrule Clewis and decide 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.
What is the new merged legal/factual sufficiency standard you ask?  Well, it is simply the standard as laid out in Jackson - "a reviewing court is required to defer to a jury’s credibility and weight determinations."  No longer is there a factual sufficiency standard wherein the appellate court must view the evidence in a neutral light.

Judge Cochran concurred in the result, but expressly agreed that the Clewis factual-sufficiency standard should be overruled:

[T]he Clewis factual-sufficiency review was a well-intentioned but ultimately unworkable effort to incorporate civil standards of review on elements of a crime that must be proven beyond a reasonable doubt.

In an unflinching dissent, Judge Price (joined with Judges Meyers, Johnson, and Holcomb) stated:

By dint of persistence, a plurality of the Court purports to overrule Clewis. The plurality frames the question as a policy choice, asserting that we granted discretionary review in order to determine whether “there is a need to retain” factual sufficiency review.  But as our opinion less than four years ago in Watson, 204 S.W.3d 404 (Tex. Crim. App. 2006), demonstrated, the authority to reverse a conviction on the basis of factual insufficiency has been recognized from the beginning to be inherent in the appellate jurisdiction of first-tier appellate courts in Texas.  We cannot simply decide it need not be “retained” any longer absent a change in the constitutional and statutory provisions that confer that jurisdiction—or else a change in our own long-standing construction of those provisions. 

The dissent further points out that the "barely distinguishable" standard between the Clewis factual-sufficiency standard and the Jackson v. Virginia legal-sufficiency standard is that the former views the evidence in a "neutral" light, while the latter views the evidence in the light most favorable to the verdict.

Factual sufficiency review recognizes that there may be rare cases in which, though some jury might convict, and it would not be irrational for it to do so, most juries would almost certainly harbor a reasonable doubt given the tenuousness of the State’s evidence or the weight and apparent credibility and/or reliability of the exculpatory evidence. Under these circumstances, factual sufficiency review in Texas permits a first-tier appellate court to reverse a conviction and remand for a new trial, in the interest of justice, to grant the defendant a second chance to obtain a jury acquittal.

This plurality opinion, while purporting to clarify the appellate standards and streamline appellate review, is a terrible decision for the appellate defense bar.  Judge Price's dissent says it all.  Give it a read.  It's short and interesting.

Thursday, October 7, 2010

ScotusBlog Features Texas Death Penalty Case

The Supreme Court will hear oral arguments in the Texas death penalty case of Henry "Hank" Skinner on October 13th. Skinner was convicted in 1995 of the triple murder of his girlfriend and her 2 mentally-challenged sons.  ScotusBlog offers a preview HERE.

“Manner and Means to the Grand Jury Unknown”

I've been told that rules are made to be broken.  It seems, the CCA agrees.  Okay, maybe not "broken," but certainly modified.  Yesterday, the Texas Court of Criminal Appeals overruled 17 years of precedent from Hicks v. State, 860 S.W.1 2d 419 (Tex. Cr. App. 1993) in cases involving an indictment (or jury charge) alleging “unknown manner or means" by which a defendant committed an offense.

In Sanchez v. State, the Appellant was convicted of “intentionally and knowingly caus[ing] the death of [the victim] by manner and means to the Grand Jurors unknown.” The court likewise charged the jury on the “unknown” manner and means. The Appellant objected to the “manner and means unknown” theory because, as he argued, the allegation was unsupported by the evidence presented at trial and was thus based on insufficient evidence to convict. The trial court overruled the objection. Appellant was convicted of murder and sentenced to sixty-eight years in prison.

On appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that the manner and means the Appellant employed were not actually unknown as there was testimony at trial regarding possible strangulation and use of a stun gun, and that the jury charge was erroneous in authorizing conviction on an “unknown” theory. The 13th Court bought it.
In determining whether the trial evidence was sufficient to warrant a charge on the “unknown” theories, the [Appellate] Court relied on the rule stated in Hicks v. State that when an unknown allegation is made in an indictment, the burden falls to the State either to present a prima facie case at trial that the manner and means were actually unknown, or to prove (usually by testimony) that the grand jury used due diligence to ascertain the manner and means of death.
The CCA, however, was no so persuaded. Identifying the thrust of the Hicks decision as “notice to the defendant,” the CCA explained that the rule “seems to have lost it intent and focus.” Devising a new rule in “unknown manner and means” cases, the CCA held:
we overrule the two-pronged rule in Hicks and announce a new standard for indictments with “unknown” allegations to the grand jury that are subsequently used as the jury charge at trial:
Where the State has alleged “unknown” manner and means in the indictment and/or jury charge, the defendant may challenge the propriety of the “unknown” allegation before trial and (if the evidence at trial has made a second inquiry necessary) at the conclusion of evidence, but before the charge is submitted to the jury.
Addressing the “notice” concern of the Hicks litany, the CCA provided:
The first question (whether raised before or during the trial) is whether the defendant was given proper notice so that he could properly prepare for trial. The pre-trial hearing will ensure that the “unknown” allegation was truly unknown to the grand jury and is not being used to surprise or manipulate the defendant at trial. This hearing replaces the Hicks test, but does not require proof of “unknownness” at trial. Instead, it permits hearings that will, at the very least, elicit all evidence that is now known so that the “unknown” aspect of the case can be minimized or eliminated by amendment of the indictment or the presentation of a superseding indictment.
The CCA reversed the 13th Court and affirmed Appellant’s conviction.

Wednesday, October 6, 2010

Pay No Attention to the Meth Lab Behind the Curtain

Woolverton v. State - The police searched a home with the express consent of the owner.  There was disputed testimony as to whether Appellant (a co-tenant) objected to the search.  As warrantless searches tend to go, the police then found a meth lab in the home.  Appellant was convicted of possession and manufacture of methamphetamine and sentenced to 10 and 40 years (to run concurrently). (Note: A conviction for both possession and manufacture violates Double Jeopardy as recently held by the CCA.  See my previous post HERE).

Predictably, Appellant asserted on appeal that the warrantless search of the home violated the 4th Amendment.  Citing Supreme Court precedent from Georgia v. Randolph, 547 U.S. 103 (2006), the 6th District Court of Appeals (Texarkana) recognized:
The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.  A third party may give consent to search property over which they have joint access or control.  Where cotenants or joint occupants live at a residence, either tenant may give the law enforcement officer consent to search the premises so long as that tenant has control over and authority to use the premises.
The court also noted, however, that a co-tenant's unambiguous refusal of consent effectively overrules the previous consent of the other co-tenant.  In this case, Appellant testified that she objected to the search and made her objection known to the police officers, while the officer testified that she made no objection at all.  In denying the motion to suppress, the trial court found:
In this case, it comes down to a credibility determination and the Court finds that the testimony of the defendant in this case is not credible and the Court finds that the testimony of the officers is credible, that she did not object, that she was cooperative, that she did not even inform them that she resided there, although I think there was some testimony by one of the officers that he knew that. But she never objected to the search.
The appellate court agreed that the trial court correctly applied the law of search and seizure to the facts of the case, and affirmed the trial court's ruling.
Because the findings of the trial court are based on an evaluation of credibility and demeanor of the witnesses, we defer to those findings as they are supported by the record.

Tuesday, October 5, 2010

The GANT Exception

Last year the Supreme Court dealt law enforcement a great blow with its holding in Arizona v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Court eliminated the automatic search of a vehicle incident to arrest, holding:
A search incident to arrest is unreasonable if it occurs after the person who is arrested has been secured and cannot access the interior of the vehicle.  
The Court, however, did not foreclose all possible searches of a vehicle incident to arrest in those instances when the arrestee is no longer within reach of the vehicle.  The Court provided an exception for "those situations when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle."  It was this exception on which the 11th District Court of Appeals (Eastland) relied to uphold the search of a passenger's purse in Daves v. State.

In Daves, the driver of a vehicle in which Appellant was a passenger was pulled over for running a stop sign.  The police officer noticed the smell of alcohol on his breath and directed that the driver perform a field sobriety test.  Confident in his abilities, the driver made a foolish mistake.
During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands.  As Large was attempting to perform that task, various items began to fall from his pockets.  One of those items was a purple marihuana pipe.
Upon seeing the pipe, the driver was handcuffed and arrested for possession of drug paraphernalia.  After the police officer placed the driver in the back of the squad car, he proceeded to search the vehicle for additional evidence of drug paraphernalia.  The Gant exception!  The officer searched the driver side, the passenger side, including compartments therein, and then searched the passenger's (appellant) purse.  In Appellant's purse, the officer found a small baggie of marijuana.  He also found a baggie of cocaine between the seats.  Appellant (who was the actual owner of the vehicle) was later convicted of possession with intent to distribute 1 gram of cocaine.

In her appeal, Appellant argued that the search violated the 4th Amendment.  Citing, you guessed it, the Gant exception, the 11th Court held that the search of the vehicle, including Appellant's purse, was permissible.

Monday, October 4, 2010

Heading to Houston...

for the Advanced Criminal Law Course (video).  I'll be there for the remainder of the week and not sure if I'll get to do much blogging.  Who knows, maybe with this time away from work I'll get to do more blogging.  We'll see.  If you're going to the course, shoot me an email and we can catch up during a break.

Sunday, October 3, 2010

Statute of Limitatons to Recover Stolen Culture Lengthened in California

Governor Arnold Schwarzenegger signed into law California Assembly Bill 2765. This law allows an owner of a stolen or fraudulently taken cultural object to file a lawsuit to recover the piece within six years of finding the object. This new law is significant for three reasons.

First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress

Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.

Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.

Read the law at

Saturday, October 2, 2010

CPAC public sessions on Colombia and Greece cultural property agreements coming soon

The Cultural Property Advisory Committee will be holding public sessions on October 12 and October 14, 2010 to consider renewing the cultural property protection agreement with Colombia and to consider a new agreement with Greece.

More information can be found by reading the Federal Register at

Friday, October 1, 2010

Property Owners Testimony Alone May Satisfy Loss Element of Criminal Mischief Offense

An overdue apology to our readers out there.  As the tempo of my day job increases, my posting of Texas criminal law news and cases decreases.  Although I doubt there is anyone waiting by their computer for me to post about breaking Texas cases, I apologize for my apathy nonetheless.  However, today is not the day that I resume substantive and continuous posting. 

Here's a blurb (a cut and paste, actually) about a recent CCA opinion regarding the evidence required to prove penuciary loss element of a criminal mischief offense.

Holz v. State
A person commits the offense of criminal mischief when she intentionally or knowingly damages or destroys tangible property without the effective consent of the owner.  The amount of pecuniary loss suffered by the owner determines the degree of the offense.  If the property is damaged (as opposed to destroyed) the amount of pecuniary loss is determined by “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.”
The question presented was whether, in order to prove the pecuniary loss element of a criminal mischief offense, a non-expert property owner's testimony about the cost of repairing or restoring his damaged property can be sufficient without further evidence?

Reversing the judgment of the 6th District Court of Appeals and clairfying the it prior holding in Elomary v. State, 796 S.W.2d 191 (Tex. Cr. App. 1990), the CCA held that expert testimony is not required to prove the pecuniary loss element and that a non-expert property owner's testimony may be sufficient, even standing alone.