CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

See the CCA's full opinion HERE.

Pre-Arrest, Pre-Miranda Right to Remain Silent

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

Reasonable Suspicion for Traveling Below the Speed Limit?

Delafuente v. State (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling 13 miles an hour below the posted speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle “may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code § 545.363(a). “Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded.” Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer’s report which contains a conclusory statement that appellant was “impeding traffic,” but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant’s motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court’s ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were “impeding traffic” such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney’s Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was “impeding traffic” based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court’s ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was “impeding traffic,” you should then ask the officer, “In what observable way was the defendant impeding traffic?” Were cars having to constantly go around him? Were they honking? Still, a trial court’s ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

Abuse of Discretion to Exclude Defense Expert on Eyewitness ID Pitfalls

Usually, I write about CCA cases and Scott Henson over at Grits for Breakfast provides a link to my post (if it is worth reading).  Today the roles are reversed.  He has written an accurate and insightful post on a recent CCA case (State v. Tillman) wherein the trial judge refused to allow a defense expert to testify regarding the inherent problems in eyewitness identification.  The CCA held that the trial judge abused his discretion.

As Grits puts it,

the opinion, authored by Judge Barbara Hervey, cited the host of false convictions based on faulty eyewitness identifications discovered through DNA exonerations, as well as a well-developed body of scientific research critiquing over-reliance on eyewitness identification errors.

I encourage you to check out his post HERE.

“What Did He Say?” – Defendant Entitled To Transcript of a Prior Mistrial

What follows is an excerpt from Blackshear v. State, a case out of the 14th District Court of Appeals (Houston). In Blackshear, the jury convicted appellant of possession of a controlled substance, but could not agree on an appropriate sentence. The judge declared a mistrial for the sentencing portion of the case. The State, which did not put on any evidence during the initial sentencing phase, decided to recall some of the trial witnesses during the new sentencing hearing to give the new jurors a better taste of the evidence. Accordingly, the appellant requested a continuance so that he could obtain a transcript of the prior trial in order to prepare a proper defense during the new sentencing hearing. The trial court, however, was more interested in a speedy disposition and denied the request for a continuance, empanelled a new jury the very same day, and conducted the sentencing hearing the following day. On appeal, the 14th COA held that it was error for the trial court to deny the continuance. The appellant had a presumptive right to the transcript that the State did not rebut. Here’s how the court explained it:

The State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal when those tools are available for a price to other prisoners. Among these basic tools is a transcript of prior proceedings when needed for an effective defense or appeal. In determining whether a defendant needs a transcript, the Britt court took two factors into account: (1) the value of the transcript to an effective defense, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

 In considering the first factor, the Britt court noted that “our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” Ordinarily, the court concluded, a transcript of a prior mistrial is valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. The Court of Criminal Appeals has expressly presumed a defendant’s need for a transcript and has imposed upon the State the burden to rebut the presumption.

An easy decision for the 14th COA in Blackshear. “Blackshear’s counsel should have been able to use the transcript from the first trial in his cross-examination in the second.” The trial court denied the request. No transcript = remand for new sentencing hearing.

Talking On a Cell Phone While Driving Not Enough to Constitute Criminal Negligence

Distracted cell phone drivers… we all hate them. Heck, sometimes we are them, but we hate them nonetheless. In Houston, back in 2008, the State decided to do something about it when a distracted cell phone driver was involved in an accident that killed another motorist.

In Montgomery v. State, a case released today by the 14th District Court of Appeals (Houston), the court reviewed appellant’s conviction for criminally negligent homicide stemming from a car accident that killed one person. The State alleged in the indictment that she failed to keep a proper lookout and made an illegal lane changed which posed a substantial risk and grossly deviated from the standard of care.

On appeal to the 14th District Court of Appeals, appellant challenged the sufficiency of the evidence to establish the culpable mental state of criminal negligence. As the Court explained,

in order to convict appellant of criminal negligence, the State was required to prove not merely that she did something a person of ordinary prudence would not have done, but that her failure to perceive that a substantial risk of death would result from her conduct grossly deviated from an ordinary standard of care.

The Court further emphasized that

criminal negligence entails a more culpable mental state than mere civil negligence. The distinction lies in the degree of deviation from an ordinary standard of care: “conduct that constitutes criminal negligence involves a greater risk of harm to others…than does simple negligence.”

Talking on a cell phone and making an unsafe lane change, without more, does not reach the level of criminal negligence normally required by Texas courts (e.g. cases wherein criminal negligence was found typically involve speeding, racing, and/or intoxication as contributing factors).

In a footnote, the Court cautioned the State as follows,

[i]n his closing, the prosecutor encouraged the jury to “set a precedent” regarding cell phone usage while driving. Arguments that cell phone usage while driving should be made illegal in Texas are properly directed to the legislature and not this court of the jury below.

In holding that the evidence was legally insufficient to maintain appellant’s conviction, the Court cited the complete lack of competent evidence establishing that cell phone usage while driving increases the risk of fatal accidents. The Court reversed the conviction and rendered a judgment of acquittal.

Just before concluding the opinion (and riding off into the sunset), the Court stated:

Supported by additional scientific research and increased public awareness, Texas may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident.

A Proper Voir Dire Question

When conducting voir dire of prospective jurors (the venire panel), Texas law says that a lawyer cannot ask a “commitment question.” The Texas Court of Criminal Appeals defines a “commitment question” as

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: "What factors are important in assessing the sentence in a [name your offense] case."

Presiding Judge Keller was the lone dissenter.  She deems the question an improper commitment question.

Let the Record Reflect...

I cringe when I hear an attorney say "Let the record reflect."  Of course the record will reflect!  If you're saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.  Use it if you want, but you won't ever hear me say it.  I apologize for the rant.  That is not what this post is about.

Below are a couple of recent cases from the Texas Court of Criminal Appeals.

Newman v. State (on appeal from the 14th District Court of Appeals - Houston) - Appellant filed an unsworn motion in the trial court, challenging the eight-year delay from indictment to trial as a violation of his constitutional right to a speedy trial.  The trial court denied the motion and indicated that it did so after a hearing.  The appellate record, however, did not contain a reporter's record of this hearing.  Noting that the record was "sparse" and cautioning "practitioners regarding the importance of developing a record," the court of appeals, nonetheless, overturned the trial court's ruling and held that Appellant's right to a speedy trial had indeed been violated.  The CCA reversed the court of appeals, holding that Appellant has "failed to present a record demonstrating that the trial court's decision should be overturned."  The CCA noted that "an unsworn motion does not, by itself, present evidence upon which relief can be granted" and held that "the court of appeals would have erred to consider the factual assertions in Appellant's unsworn speedy-trial motion."  Simply put, the record did not reflect.

Ex Parte Chamberlain (on appeal from the 2nd District Court of Appeals - Fort Worth) - In this case, Appellant alleged that the lifetime sex-offender registration requirement violates his substantive due process rights because there is no mechanism to permit any future risk reassessment concerning the probability or likelihood of recidivism.  The lower court rejected the claim because under the Texas Code of Criminal Procedure Articles 62.401 through 62.408, there is a statutory mechanism that allows a person subject to lifetime registration requirement to seek early termination.  After the lower court's ruling but before the CCA's decision, the Council on Sex Offender Treatment (CSOT) published a new list regarding the classes of sex offenders which may apply for deregistration.  Accordingly, because the court of appeals did not consider this new list, the CCA remanded the case back to the court for another proceeding.  The CSOT's new list is available HERE.

Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

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.

My Witness or Yours?

During trial you should generally expect your opponent to call witnesses who will provide testimony damaging to your case.  That's their job.  But what you do not expect is that one of the witnesses you decide to call will be the most damaging of all.  That was the experience of Jose Armando Deleon's trial defense counsel during the sentencing portion of his trial for child sexual assault.

In Deleon's case, the defense counsel called a local probation officer as a defense witness during sentencing.  It appears from the appellate opinion that the defense counsel, pursuing a probation sentence, called this witness to testify primarily that

when sex offenders are placed on probation, they receive treatment to learn to control their behavior, including 'on how to push away any type of temptations or desires' and 'to remove themselves from high-risk situations.'

Okay.  That seems like reasonable testimony that one might want to elicit in hopes of gaining a probation sentence.  However, the wily prosecutor turned the defense tactic against them.  On cross-examination of the probation officer the prosecutor asked:

Q. Now rehabilitation of sex offenders: Are they ever rehabilitated to the point where the risk is gone?

A. No.  Absolutely not.  The risk will always be there. It may be minimized or lessened, but the risk will always remain because we don't know—I don't know what anybody here is thinking.  We can never assume that we know what a sex offender is thinking.  The risk is this: they were sex offenders before they committed the offense.  So we don't know what he is thinking, what they're planning.  We can give them treatment, we can do all the things that are required by law; but we can't see up here,so we can never truly predict what is going to happen from day one to day two.  You have got to assume all the risk because you have heard story after story, 'I never thought he would do this; I never thought my grandfather would do this; I never thought my dad would do this.'  So you never, ever push out the risk.  You always assume the risk is great.  As long as you assume the risk is great, then hopefully that is going to create enough protection to prevent other children from being impacted one way or the other. You just don't know.  I can have guys that do everything perfectly, but up here they're still having sexual fantasies of molesting two-year-old girls or two-year-old boys.  Just because you succeed well in probation does not remove the risk.

Not much chance the jury is going to award probation after hearing that!  And that's exactly what happened; the jury awarded Deleon 14 years confinement.  After such a blunder, naturally, Deleon argued on appeal that his counsel was ineffective for calling the probation officer and for failling to object during the prosecutor's cross-examination.  The 14th District Court of Appeals (Houston) agreed, holding

appellant's trial counsel was deficient in failing to object to the highly inflammatory testimony and for calling [the probation officer] to the stand in the first place. See Mares v. State, 52 S.W.3d 886, 892-93 (Tex. App.—San Antonio 2001, pet. ref'd) (holding counsel was deficient where counsel called probation officer as witness and then failed to object when she opined that a person in the defendant's situation would not make a good candidate for probation).  Counsel should have known how Russ was going to testify on these matters. There could have been no strategic reason for producing and permitting such damning testimony.

Case remanded for a new punishment proceeding.  Perhaps the defense counsel should have spent a little more time in the ole woodshed with his witness prior to calling him to the stand.

Justice Christopher dissented, and would conclude that there were legitimate and professionally sound reasons for counsel's conduct in calling Russ as a witness.  As the dissent points out,

A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

I'm with the dissent on this one.  You never know what it going to happen at trial and you have to expect the unexpected.  Of course, it appears the defense counsel could have prepared better for this witness, but he had a certain trial tactic and he employed it.  It just so happened in this case that the State was better prepared.  That's trial!  It's never perfect and the appellate courts should be extremely hesitant to second guess the tactical decisions by the participants.

Pay Up! Indigent Defendant Relieved of the Trial Court Judgment to Pay Court-Appointed Attorney's Fees

Pay Up
Sikalasinh v. State, 7th District Court of Appeals (Amarillo)

Appellant, an indigent defendant (who, incidentally, also qualified as an indigent appellant), was ordered by the trial court to pay court-appointed attorney's fees and non-resident witness travel fees as "court costs" under Articles 26.05 and 102.002 of the Texas Code of Criminal Procedure, respectively.  To be liable for court-appointed attorney's fees, there must be a finding that the Appellant had the financial resources to "be able to pay."  In this case, the trial court made no such finding, simply ordering the reimbursement on a bare record.  Accordingly, the State condeed the issue and the 7th Court reversed the part of the judgment pertaining to attorney's fees.  Regarding the issue of non-resident witness fees, the 7th Court analyzed the statutory framework, including the recent repeal of subsection (a) on Article 102.002 and determined that the legislature did not intend for a defendant to pay non-resident witness fees as "costs of court."  Conviction affirmed, but judgment modified.

No Plans to Move
Green v. State, 14th District Court of Appeals (Houston)

Appellant's conviction for failing to comply with sex offender registration requirement was reversed.  The sex-offender registration laws require that all sex offenders notify the State within 7 days of their "intent to move."  While Appellant did in fact move without providing 7-days notice as required, the evidence was insufficient to prove that Appellant "intended" to move.  Conviction reversed.

Better Study Your Algebra!

Here are a couple more interesting issues that came up recently in Texas published cases:

Better Study Your Algebra
Davis v. State, (14th Ct - Houston) June 29, 2010 - Appellant argued that the trial court abused its discretion by allowing the State to introduce evidence during sentencing of the poor grades he received in school.  Overuling this issue, the Court held:

     Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to sentencing,‖ and the evidence is not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried.  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a).
     Although it is questionable that appellant‘s poor grades were relevant to determining an appropriate punishment for appellant, any asserted error in admitting evidence of appellant‘s grades was not harmful.

Even the State Needs Permission Sometimes
Witkovsky v. State, (2nd Ct - Fort Worth) June 24, 2010 - Where there is no showing that the terms or conditions of community supervision were modified, a person’s community supervision cannot be revoked for failure to meet the modified terms.  Because the defendant's community supervision was modified unilaterally, without court authorization, the trial court abused its discretion by revoking the defendant's community supervision on the basis of his failure to successfully complete a particular sex offender treatment program.

"The Best Part of Waking Up..."
Garcia v. State, (4th Ct - San Antonio) July 7, 2010 - Appellant argues that by placing his bare hand in the coffee can to search for marijuana, the police officer destroyed consumable property in violation of the Takings Clause of the Fifth Amendment to the Constitution.  However, the Court held, when property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not "takings" for which the owner is entitled to compensation.  The same rule applies even if the property is seized as evidence in a criminal investigation or as the suspected instrumentality of a crime, but is ultimately returned to the owner either because the government does not pursue forfeiture proceedings or because the owner prevails in a forfeiture action.

Some Various Holdings

While I'm focused elsewhere, here's a quick look at some published holdings from around the state:

Confession Valid Despite Illegal Arrest
Monge v. State, (Tex. Crim. App.) June 30, 2010 - Providing suspect with co-defendant's confession implicating him in the crime attenuated the taint of the illegal arrest such that the suspect's later confession was not subject to exclusion.

"I'm Incompetent, I Just Can't Prove It!"
Galvan v. State, (11th Ct.--Eastland), June 17, 2010 - The defendant, who is presumed competent to stand trial, must prove by a preponderance of the evidence that he is incompetent, and a jury finding that the defendant is compentent will not ordinarily by overturned.

Skeletons in the Closet
State v. Krizan-Wilson, (14th Ct.--Houston), June 22, 2010 - A 23-year prosecutorial delay in seeking an indictment for murder did not violate the defendant's due process rights because the delay was not an intentional device used to gain a tactical advantage over the accused or for other bad faith purposes.

Mineola Swingers Cases "Rife with Error"

Last week the 14th District Court of Appeals (Houston) released three opinions in the "Mineola Swingers" cases.  These cases involved three co-defendants who were convicted of child sexual abuse and organized crime for teaching children how to engage in sexual conduct and then taking the children to perform sexual acts publicly in front of a Swingers club.  Sick, I know.  So thought the trial court, because, as the 14th Court points out:

the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding [the defendant's] ability to defend himself.

Of the three cases released last week, Mayo v. State was modified and affirmed, while Kelly v. State and Pittman v. State were reversed and remanded.  Some of the pertinent reasons for each decision are contained below.

Mayo v. State -- Appellate decision hinged not on the evidence adduced at trial or the State's method of proving the case, but rather on a jury instruction and the a cumulation of sentences issue.  In giving a venue instruction regarding the sufficiency of proof, the trial court relied on previaling Texas caselaw rather than statute.  The CCA, however, held in 2003 that "Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis."  Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).  The appellate court found this error to be harmless.  What the appellate court did not find harmless, however, was the trial court's ordering of appellant's convictions for child sexual abuse and organized crime to run consecutively.  Noting that "Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively" and "organized crime is not one of the enumerated offenses,"  the appellate court modified the judgment to reflect "that appellant's life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child."

Kelly v. State -- To summarize this case in a few lines, the appellate court stated:

Although the evidence is legally sufficient to support appellat's conviction, the record is rife with error.  Many of these errors did affect appellant's substantial rights.  Therefore we reverse and remand for a new trial.

Of appellant's 43 issues presented on appeal, here are some of the highlights for which the Court reversed the case:

• The trial court denied the defendant the opportunity to present a meaningful defense by preventing him from pursuing the trial theory that the child victims' foster parents, who had recently been accused of child sexual abuse in CA, coached the victims to lie against the defendant in order to shift the blame from the foster parents.
• The trial court improperly allowed the State to introduce evidence that the 2 co-defendants were convicted and sentenced to life in prison for their involvement in the sex sting.
• The trial court allowed a mountain of hearsay statements of the outcry witness through an investigator who recounted the statements as fact even though he was not present for any of the statements.
• The State's witness on "child grooming" was not an expert and should not have been allowed to testify as such.

These errors (and more) contributed to the Court's reversing and remanding the case for a new trial.  Perhaps next time around the trial court will simply conduct the trial within the confines of acceptable trial practice and evidentiary rules, because, as the Court noticed, "the evidence [was] legally sufficient to support appellant's conviction."  I'm sure the Court could have engaged in some mental gymnastics to uphold this conviction, but it decided to require a cleaner record from the trial court.  Either way, this decision signals small shift toward maintaining a legal and respectable justice system in Texas.

Pittman v. State -- The Court reversed and remanded due to the trial court's abuse of discretion in allowing the State to introduce numerous extraneous offenses (drug use, sexual acts with other children, etc.) which were highly prejudicial when appellant was charged with sexual abuse of only one child.  In reversing the conviction, the Court stated:

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children.

It appears the State has some work left to do in these cases.

The Links Test for Narcotics Possession (a.k.a. Roommate Convictions)

What can happen if your rommate, be it husband, wife, boyfriend, girlfriend, son, daughter, or simply acquaintance, possesses or deals drugs from your jointly shared residence?  Can you be convicted even if you have nothing to do with it?  You bet your glass pipe you can!

A couple of cases from the 1st and 14th District Courts of  Appeals (Houston) were published last week regarding the Links Test, defining what factors a trial court considers to determine whether there is enough evidence to "link" you to the narcotics possession/distribution.  Links (weblinks, that is) to the cases are below.  Briefly, here's what the Courts explained:

When...the accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must link the accused to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.  The evidence must demonstrate that the link between the accused and the contraband generates a reasonable inference that the accused knew of the contraband‘s existence and exercised control over it.  In other words, the State must establish that the accused‘s connection with the narcotics was more than just fortuitous.  The Texas Court of Criminal Appeals has explained that the purpose of the links rule is to protect the innocent bystander from conviction based solely upon [her] fortuitous proximity to someone else‘s [narcotics].  The links rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.

Texas courts have identified many non-exhaustive factors that may demonstrate a link to contraband.  The factors include whether the narcotics were (1) in plain view; (2) conveniently accessible to the accused; (3) in a place owned, rented, possessed or controlled by the accused; (4) in a car driven by the accused; (5) in close proximity to the accused; or (6) found in an enclosed space; and whether (7) the odor of narcotics was present; (8) drug paraphernalia was in view of or found on the accused; (9) the accused was present; (10) the accused‘s conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements); (11) the accused had a special relationship to the drug; (12) the accused possessed other contraband or narcotics when arrested; (13) the accused was under the influence of narcotics when arrested; (14) the accused made affirmative statements connecting her to the contraband; and (15) the accused was found with a large amount of cash.  These factors constitute a shorthand way of expressing what must be proven to establish that [narcotics] were possessed knowingly.  The number of linking factors present is not as important as the logical force‖ they create to prove that an offense was committed.  The absence of various links does not constitute evidence of innocence to be weighed against the links present (citations omitted).

In both of the published cases below, the links test worked to the advantage of the State despite several weak links in the chain.  I guess in Texas a narcotics conviction is as strong as its strongest link.

Satchell v. State, 1st Dist. - Houston, June 10, 2010.
Roberts v. State, 14th Dist. - Houston, June 10, 2010.

Retaliation and Assault

Below are a couple of published cases from the 7th (Amarillo) and 14th (Houston) Courts of Appeals regarding the sufficiency of an indictment and a jury charge, respectively.

Defect in Retaliation Indictment - Cada v. State, 7th District Court of Appeals (May 24, 2010)


In Cada, the appellant was indicted for and convicted of retaliation against a "witness" under Texas Penal Code Section 36.06.  Under prior Texas caselaw, the definition of "witness," as used in connection with the retaliation statute, means "one who had testified in an official proceeding."  In this case, however, the "witness" against whom the appellant was alleged to have retaliated, never testified in an official proceeding, but rather simply made a complaint to the police which resulted in appellant's wife being arrested.  The complainant, said the Court, was actually a "prospective witness," rather than an actual "witness" under the statute.  This variance in the indictment, the Court held, was not material.  Accordingly, the Court upheld the conviction for retaliation against a witness.


Defect in Jury Charge - Trejo v. State, 14th District Court of Appeals (May 20, 2010)


In Trejo, appellant was charged with aggravated sexual assault, but was convicted of aggravated assault as an LIO.  The Texas Court of Criminal Appeals, however, held that aggravated assault was not an LIO of aggravated sexual assault in this case and remanded the case back to the 14th Court.  The Court was tasked to determine whether appellant suffered "egregious harm" based on the trial court's error in charging the jury on aggravated assault even though it was not an LIO of the indicted offense.

Egregious harm deprives appellant of a fair and impartial trial. Egregious harm occurs when the error affects the very basis of the case,‘ deprives the defendant of a valuable right,‘ or vitally affect[s] a defensive theory.  In the egregious-harm analysis, we consider (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel; and, (4) any other relevant information revealed by the trial record as a whole.

Applying the four Almanza factors above and using the common sense observation that Appellant was convicted of the very offense that was improperly charged to the jury, the Court held that Appellant did indeed suffer egregious harm and reversed his conviction.  

Search of Woman's Bra Exceeds Scope of 4th Amendment

Yesterday, the 14th District Court of Appeals (Houston) designated for publication an interesting 4th Amendment case regarding the scope of a pat-down search for weapons during a Terry stop. 

In State v. Williams, an Angleton police officer executed a traffic stop of the car in which the defendant was a passenger.  During the officer's valid investigative detention, the driver of the vehicle told the officer that the defendant was in possession of a knife and that she was trying to stab the other passengers.

Texas courts have stated that "a valid investigative detention can give a police officer the ability to pat-down or frisk the suspect for weapons."  Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009).  Courts, however, have not allowed an overly broad or unlimited pat-down in these instances, and have instructed that "officer may conduct a limited search for weapons of the suspect's outer clothing" when an officer "reasonably believes that the suspect is armed and dangerous."  Balentine v. State. 71 S.W.3d 763 (Tex. Crim. App. 2002).

In this case, however, the officer did not feel comfortable patting down the suspect, due to her busty build.  As the officer testified during trial, the defendant was well-endowed - "more than average."  Therefore, rather than conducting a limited pat-down search of the defendant, the officer simply asked her to

"kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit...and manuever it."

Although she did not initially agree to this, she ultimately complied and as she wiggled and jiggled, numerous pills fell out her bra.  At her subsequent trial, she moved to suppress the illegal drugs as being fruits of an unlawful search.  The trial court granted the motion.  The14th District Court of Appeals affirmed the trial court's ruling suppressing the evidence, stating:

The permissible scope of a protective search for weapons is extremely narrow.  [The officer's] reluctance to perform a pat-down search on a female provides insufficient justification for broadening the scope of the search.  We are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any.  If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either [the officer] or the female officer could have attempted to extract the item or could have conducted a more intrusive search.  And the 'more than average' size of [the defendant's] bust, as [the officer] described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.

Justice Yates concurs (HERE).

Why Prosecutors Should Not Serve as Witnesses

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."  See Model Rules of Prof'l Conduct R. 3.8 cmt. 1.  Courts have over time consistently expressed serious concerns about prosecutors as witnesses.  Generally, when the practice has been allowed, it has been only for compelling reasons in extraordinary purposes.  What follows are 3 reasons (according to Justice Sullivan of the 14th District Court of Appeals - Houston) why prosecutors should NOT serve in the dual role of advocate and witness:

1.  Confusion of the Trier of Fact - First, the tasks are inherently inconsistent because the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.  Thus, serving in both roles in the same case could confuse the trier of fact as to whether (and when) the prosecutor is acting in the capacity of advocate, as opposed to witness.

2.  Lack of Objectivity - Second, a prosecutor may be unable to participate as a fully objective witness to the extent his interests are aligned with only one of the parties - the State.  An experienced prosecutor with an interest in the outcome would be both poised and motivated to wreak maximum strategic damage to the opposition, if permitted to testify. This concern is magnified not only by the serious liberty interests at stake, but also the widely-held perception that a prosecutor, not unlike other law-enforcement officials, may have enhanced credibility with the public.

3.  Appearance of Impropriety - Third, the prospect of a prosecutor testifying against the accused raises the appearance of impropriety. It also places a prosecutor in the presumably very uncomfortable – and optically questionable – role of advocating her own credibility or that of a colleague.

* He also lists a fourth reason (on the practical side) - It is difficult for appellate courts to gauge the full impact  of the sudden transformation of a prosecutor from advocate into witness.

This post was taken from Justice Sullivan's concurring opinion in Dreyer v. State (HERE).  See also the majority opinion here.

Any prosecutors out there disagree with Justice Sullivan's analysis?

(Sorry, no original thoughts on my part - it's been a long Easter weekend)

"But He Started It!" - Self-Defense Instruction Doesn't Always Apply

"The dog ate my homework."

"I only had two beers."

"I did not have sexual relations with that woman."

"Okay, even if I did, it was consensual."

"But he started it!" - Self-defense is one of the most commonly used defenses in criminal law.  Many times, this defense has merit, but sometimes (especially in homicide cases) it is a lame attempt to shift the attention of the jury from the acts of the obviously culpable defendant to the victim (who is usually a questionable character himself).  Can any defendant claim self-defense?  Sure, if the issue is raised by the evidence.  Are there limits to a defendant's right to a self-defense jury instruction?  You bet.

One of those limitations is found in section 9.31(b)(5) of the Texas Penal Code, which provides:

The use of force against another is not justified if the actor sought an explanation from or a discussion with the other person concerning the actor's differences with the other person while the actor was... [unlawfully] carrying a weapon.

What exactly does "concerning the actor's differences with the other person" mean in the legal sense?  This issue was recently addressed by the 14th District Court of Appeals (Houston) in Hernandez v. State, in which the court dusted off the ole' Webster's dictionary and explained:

The term "differences" is not defined in the statute. Under the canons of statutory construction, we are to construe a statute according to its plain language. Edwards v. State, 273 S.W.3d 919, 921 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In determining the plain meaning of the language of a statute, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). The plain meaning of "differences" is a "disagreement of opinion," or "an instance of disagreement or a point upon which there is disagreement." Webster’s Third Int’l Dictionary 629 (1993) (third definition of "difference").

In Hernandez, because the defendant, while unlawfully carrying a weapon, sought out the victim to discuss a contentious matter ("differences"), the defendant was not entitled to a jury instruction on self-defense when he was later charged with the murder of the victim.  Murder conviction and life sentence affirmed.