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.