A Prosecutor’s Comment on a Defendant’s Failure to Testify

If a criminal defendant takes the stand during trial on the merits and denies culpability, but then, after being convicted, chooses not to testify during the punishment phase of the trial, may the prosecutor comment during closing that the defendant has “not taken responsibility for the crime?”

The 1st District Court of Appeals (Houston) says NO. But what about the Texas Court of Criminal Appeals?

In Randolph v. State, No. PD-0404-10 (Tex. Crim. App. 2011), appellant testified during guilt/innocence he was never at the scene of the crime and offered the jury an alibi. After the jury convicted him, he did not take the stand during the punishment phase of the trial. The prosecutor argued during close (in the punishment phase):

You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime.

On appeal, appellant relied upon Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) to argue that the prosecutor improperly commented on his failure to testify during the punishment phase of trial. The 1st COA agreed and held the prosecution violated the precedent set forth in Swallow. The CCA didn’t buy it, however, holding:

[A] punishment-stage remark on the defendant’s failure to accept responsibility may be fair game if the defendant, in his guilt-stage testimony, denied responsibility for his actions or for the crime.

The 1st COA held this closing argument remark was the same as the remark given by the state in Swallow, but the CCA distinguishes:

But in this case the prosecutor said nothing about remorse or lack of remorse. She spoke only of “responsibility of the crime” – responsibility that appellant explicitly denied during his testimony. This Court, in Swallow, inadvertently combined the apples of “remorse” (which is generally expressed only after accepting responsibility) with the oranges of “responsibility.”

The CCA further explained:

The prosecutor may comment on any testimony given by the defendant in the guilt stage, and, if the defendant expressly or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on that denial.

Dissenting, Judge Myers asserts:

By referring to the fact that Appellant did not take responsibility for the crime, the state pointed out that the defendant did not testify during punishment phase of his trial. The majority complicates the matter by analyzing the definitions of the words used by the prosecutor, rather than considering their obvious meaning – thus creating a horrible Hobson’s choice for the defendant, an indiscernible dilemma for the trial judge, and an appellate record that will be difficult to decipher.

Sentencing Range and Community Supervision Period Not Linked

The punishment range for a second-degree felony sexual assault is two-twenty years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. The jury sentenced the defendant to the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.

There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.

The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.

[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.

Accordingly, the CCA reversed the judgment of the court of appeals.

Fort Bend County Loses the "Scent Lineup" Issue Again

Last year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a "scent lineup" to match a suspect's body scent to the scent of certain evidence from the crime scene.  See the post HERE.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler's methodology that the court noted were:

• He carries around his "blind" non-supect scent samples (called foil samples) in ziplock bags;
• His foil samples are old samples, while the scent sample of the suspect is fresh;
• He does not do negative runs where the sample of the suspect is excluded;
• He uses multiple dogs during each test rather than allowing the dogs to work alone; and
• He is mostly self-taught and his methodology is something he created. 

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler's "scent lineup" evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

Trial With Only Five Jurors

Can a defendant waive his constitutional right to trial by six jurors (in County Court)?

The United States Supreme Court has held that a state-law scheme that imposed a jury of fewer than six members upon a defendant, even one accused of only a misdemeanor offense, violates the Sixth Amendment right to a jury trial. Ballew v. State, 435 U.S. 223 (1978). For Texans, Article V, Section 17, of the Texas Constitution provides: “A jury in the County Court shall consist of six persons [.]” Furthermore, Section 62.301 of the Texas Government Code provides, without explicit exception, that a jury in a County Court “is composed of six persons.” Conspicuously, the similar Government Code provision (Section 62.201) requiring a 12-person jury in a District Court contains an exception that allows the parties to dispense with the full complement of jurors.

So what is the rule? Must a County Court jury have six or can it have less? The Supreme Court and the Texas Constitution and statutes call for six jurors. But may the defendant waive this requirement? This issue was recently decided by the Texas Court of Criminal Appeals in Ex Parte Garza.

In Ex Parte Garza, the defendant was set to be tried for misdemeanor DWI when one of the six petit jurors became ill and was hospitalized. The trial court continued the case for a few days in hopes that the ailing juror would recover, but he did not. The trial court then entertained the option of granting a mistrial for manifest necessity. The defense objected to the mistrial, stating that it has the jury that it wanted to hear the case. The defense requested another continuance or, in the alternative, to proceed to trial without the ailing juror. The trial judge denied the continuance and did not address the option of proceeding with fewer than six jurors. The trial court then granted a sua sponte mistrial over the defense objection.

When the case was reset for trial, the defendant filed a pre-trial application for writ of habeas corpus, alleging that because the trial court prematurely terminated the prior proceedings without having considered a less drastic alternative, his right against double jeopardy was violated. The trial court denied relief, but the 1st District Court of Appeals (Houston) reversed. “The Court of Appeals concluded that the trial court erred not to explore the less drastic alternative of conducting the trial without the full complement of six jurors.”

The CCA now affirms the judgment of the 1st Court of Appeals. Writing for the majority, Judge Price explained:

Once a defendant shows he is being tried for the same offense after declaration of a mistrial, to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of the mistrial. The State must demonstrate a “manifest necessity” for a mistrial, which is to say a “high degree” of necessity, and the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. That discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out.

Regarding whether the trial court could have proceeded with only five jurors (as a less drastic alternative the mistrial), the CCA noted that “this Court and its predecessor, the Texas Court of Appeals, have held for more than a century that the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in County Court.” Quoting the Supreme Court in Ballew:

To deny [the accused] his power to [waive his right to a six person jury] is to convert a privilege into an imperative requirement.

Imposing such a requirement on Texas defendants was not something the CCA is willing to do. Citing a long history of cases dating back to the early 1900s, the CCA noted how Texas has consistently allowed a defendant to waive his right to trial by a full complement of jurors. Therefore, the CCA held that by terminating the trial proceedings without considering whether to allow the trial to proceed with five jurors, the trial court abused its discretion. Accordingly, a new trial is jeopardy barred.

Takeaway: Consistent with Texas jurisprudence for the last 120 years, a defendant may waive his right to trial by six jurors in a County Court and proceed with less than the full amount.

Presiding Judge Keller and Judge Conchran dissented without opinion.

No Need For a Proper Instruction. The Jury Probably Got it Right Anyway.

It seems like all I write about anymore is the Court of Criminal Appeals reversing a Court of Appeals case and siding with the State. Well, this post is no different.

In Taylor v. State, the appellant was convicted of aggravated sexual assault and sentenced to 70 years confinement and a $10,000 fine for each offense. Much of the testimony at trial, however, related to acts appellant committed while he was a minor. The evidence showed that appellant began sexually abusing a young girl when he was 13 years old and she was 8. The abuse continued for several years, the final occurrence happening when appellant was 20 years old and the victim was 15.

Texas Penal Code Section 8.07(b) provides that unless a juvenile court waives (or has previously waived) jurisdiction and certifies an individual for criminal prosecution, "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age."  Accordingly, while evidence was admitted at trial regarding appellant’s acts before he turned 17, he can only be convicted of those acts that occurred after he was 17.

The trial court failed to instruct the jury of this requirement and the jury returned a guilty verdict. On appeal, appellant argued that the jury charges were erroneous because they did not limit the jury’s consideration to evidence of acts committed after he turned 17. The 1st Court of Appeals (Houston) held that the Court was required to instruct the jury that appellant could not be convicted of criminal acts committed before he turned 17, and that appellant was denied a fair and impartial trial as a result. The Court of Appeals reversed the case.

The CCA now reverses the Court of Appeals. It agrees with the Court of Appeals that the instruction should have been given to the jury, even if neither party requested the instruction. But the CCA held, nonetheless, that the error did not deprive appellant of a fair and impartial trial. The CCA states:

Here, the error was the omission of an instruction, rather than the presentation to the jury of an erroneous instruction…[T]he jury in this case could have convicted Appellant based upon evidence presented, even if the proper instruction had been given and Appellant’s pre-seventeen acts were disregarded by the jury. The evidence showed an eight-year pattern of escalating sexual abuse of J.G. by Appellant. Appellant turned 17 years old midway through the abusive period, meaning that he is subject to prosecution for his conduct beginning on that birthday…and evidence of molestation that occurred after that date was introduced at trial.

So, basically the CCA is saying – “We don’t know from the face of the record exactly which instances of abuse the jury believed, and we can’t say with 100% certainty that they believed any of the instances after appellant was 17, but we know they definitely believed something happened at some time.”

The CCA ultimately concludes that Appellant was not denied a fair and impartial trial. My question is – “How do we know that?” I realize that appellant said he didn’t commit any of the alleged acts and I also realize that the jury, by their verdict, believed that he did.  But how do we know that the jury didn’t conclude that the appellant was guilty of only those acts that occurred when he was a minor?  We don’t. 

"Actual Innocence" Means More Than You Might Think

In 1987, William R. Wilson pled guilty to felony DWI, enhanced by two prior DWIs that he received in 1986 and 1983.  Finding him guilty of third-degree felony DWI, the court sentenced him to be fined $750 and to four years’ probation (which I think is ridiculously low for a 3rd-time DWI, but that’s beside the point).  Less than one year after he was placed on probation, the State sought to revoke the probation and issued a warrant for Wilson’s arrest.  Somehow, he stayed under the radar, eluding arrest for over 19 years until he was finally arrested.  Curiously, when he was arrested, he had changed his name.

In response to his arrest, Wilson filed an Application for Writ of Habeas Corpus claiming that his prior conviction and sentence was “unlawfully obtained.”  He argued that because one of the DWI convictions that the court used for enhancement was not final, he could not be convicted and sentenced to third-degree felony DWI.  The trial court agreed with Wilson and ordered that his 1986 conviction and sentence for felony DWI be vacated.

The State appealed the decision to the 1^st District Court of Appeals (Houston), contending that evidence that a prior conviction is not final is not “newly discovered evidence,” but merely newly discovered law (on the part of the defendant).  The State further argued that under a contract theory, Wilson received the benefit of the plea bargain and should now be estopped from challenging the contract on appeal.  The Court of Appeals wasn't buying it and affirmed the trial court’s order vacating the conviction and sentence.

On State’s petition for discretionary review to the Texas Court of Criminal Appeals, the State again asserted that this is not a case of “actual innocence,” but rather ignorance of the law.  The CCA, however, explained that:

For the purpose of this case, and other pending cases in which the issue is the offense of which the accused is, in fact, guilty, the sentence assessed, or both, we will interpret a claim of “actual innocence” to mean “guilty only of” a lesser-included offense or “ineligible for” the sentence assessed, or both.

With that, the CCA clarified that the courthouse doors are open for the habeas applications of not only those appellants that claim “actual innocence,” but also those appellants that may have been “ineligible for” the sentence they received (due, in many cases, to the questionable competence of their trial counsel).


Regarding the issue of estoppel, the CCA held:

Regardless of any benefit that may have accrued as a direct result of the plea agreement, when a defendant has been convicted of an offense for which he claims that he is actually innocent, and he proves it, he will be relived form the restraint of the conviction even though he may have pleaded guilty and confessed…Although appellee may have pled guilty to the felony offense pursuant to a plea agreement, the trial court correctly relieved him from the restraint of the conviction.

One is “Ouch,” the Other is “Yuck.”

Last week, in McKithan & Welsh v. State, the Texas Court of Criminal Appeals held that, under the cognate pleadings approach to one-step lesser-included-offenses (see Hall v. State, 225 S.W.3d 525), offensive contact assault IS NOT an LIO of bodily-injury assault.  Writing for the majority (there were no dissenters, but some judges concurred), Judge Hervey penned a 19-page history on the evolution of Texas’ approach to LIOs.  I found the opinion long and not particularly interesting.

Apparently, I was not alone.  Attempting to wade through the mess of the majority opinion, Judge Cochran wrote a concurring opinion (joined by Judge Holcomb), wherein she simplified the issues and holding.  Here’s her view of the case:

I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.  One damages the body, the other damages the mind, emotions, or sense of well-being.  One is the intent to cause a physical injury, the other is the intent to cause a psychic injury.  One is “ouch,” the other is “yuck.”

Takeaway:  Assault by offensive contact is not a lesser-included offense of Assault by bodily injury.  The legislature intended to create completely separate theories of criminal conduct when it drafted sections 22.01(a)(3) and 22.01(a)(1).

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. 

Puberty Matters Not

A novel argument from an appellant in the 1st District Court of Appeals (Houston) case of Eubanks v. State.  Donald Eubanks, who was convicted of two counts of indecency with a child, two counts of sexual performance by a child, two counts of possession of child pornography, and two counts of aggravated sexual assault of a child, was sentenced to life in prison and $80,000 in fines (and quite deservedly so, if you ask me).  He raised several issues on appeal, but the one that caught my attention was his argument that the evidence was legally insufficient to establish the counts of sexual performance by a child and possession of child pornography.

Specifically he argue[d] that the photos that he was alleged to have produced and possessed were of the "girls' undeveloped chests" and "did not depict breasts" for purposes of the sexual performance by a child and possession of child pornography statutes.

The Court overruled this issue, holding that puberty matters not when it comes to charges of sexual performance by a child and possession of child pornography.  The Court stated:

A person commits the offense of sexual performance by a child if knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.

[The law does not] require that the child‘s breasts be developed, and the definition of "sexual conduct" as applies to both offenses specifically contemplates that a "lewd exhibition of... any portion of the female breast below the top of the areola" is sufficient to constitute "sexual conduct" as required for the offenses of sexual performance by a child and possession of child pornography.

Good try Mr. Eubanks, but a child is a child, regardless of how developed (or undeveloped) she may be.

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.

Nothing New in Ineffective Assistance Case

Sorry for the delay in posting.  There have been several published opinions about which I have yet to post, but I've been out of pocket for the last few days.  I'll do my best to catch up.

HERE's a case from the 1st District Court of Appeals (Houston) that was issued on May 20th.  In Gavin v. State, the court considered whether Appellant was provided ineffective assistance of counsel.  As in any ineffective assistance opinion, the Court discussed the Supreme Court standard as articulated in Strickland v. Washington.  I have to say, I'm not so sure why this opinion was designated for publication (Gavin, that is, not Strickland).  Most published opinions offer some new analysis on criminal law issues - not so in this case - old law and nothing really interesting about the facts.  Below is an excerpt from the Court's opinion - I wouldn't waste my time reading any more of this opinion.

     The standard of review for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). To prevail, Gavin must first show that his counsel‘s performance was deficient.  Specifically, appellant must prove, by a preponderance of the evidence, that his counsel‘s representation fell below the objective standard of professional norms.  Second, appellant must show that this deficient performance prejudiced his defense, meaning that Gavin must show a reasonable probability that, but for his counsel‘s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is one sufficient to undermine confidence in the outcome.  Thus, the benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  

     There is a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy.  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  When determining the validity of an ineffective-assistance-of-counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  The record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance-of-counsel claim.  Based on such a record, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  When the record is silent as to trial counsel‘s strategy, we will not conclude that defense counsel‘s assistance was ineffective unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.

BAC Test Results Admissible without Extrapolation Testimony

In 2004, the Texas Court of Criminal Appeals held, in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that an intoxilyzer test taken approximately 80 minutes after the defendant had been driving, was admissible as it "tended to make it more probable that she was intoxicated at the time she drove under [both the per se and impairment] definition[s] of intoxication."  Id. at 96.  The Court so held despite the fact that the State failed to offer retrograde extrapolation testimony to show what the BAC may have been at the time of driving.  And so it was written: BAC results are admissible without extrapolation evidence.  See also State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).  (*Obviously, the court must consider other factors, such as, the time the test was taken and whether the defendant's submission to the test was voluntary, before finding a BAC test results relevant and admissible.)

I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding.  Read majority opinion HERE.   The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:

Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test.  That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.

On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication.  The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed.  See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008).  The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving.   Judge Price dissented.  Read dissent HERE. 

No Mercy for Child Sexual Assault Cases

The First District Court of Appeals (Houston) recently issued an opinion in Atkinson v. State, affirming the conviction and sentence of a child sex offender. Personally, I have nothing but utter disdain for child sex offenders and believe that they deserve to serve every second of the sentence that they receive. Apparently, the 1st District feels the same way.

I will spare you all of the intimate facts of the case, because you can read about them HERE if you like. All you really need to know is that Appellant had sex with a 6 year-old little girl. There was only one sexual encounter between Appellant and the girl, and during the encounter, Appellant "rubbed" the girl between her legs and then proceeded to have sex with her. Appellant was convicted of both: 1) Indecency with a Child by "Touching," and 2) Aggravated Sexual Assault, arising from a sexual encounter with a 6 year-old girl. Having never objected to the charges in the indictment at trial, Appellant argued for the first time on appeal that the convictions of both the greater charge and the lesser charge violated 5th Amendment's prohibition on Double Jeopardy. Specifically, the despicable appellant argued that the indecency charge was subsumed within the aggravated sexual assault charge because the conduct was part of one disgusting transaction.

The Law:  A conviction of both the greater and a lesser-included offense arising out of the same act violates double jeopardy. Hutchins v. State, 992 S.W.2d 629 (Tex.App-Austin 1999, pet. Ref'd, untimely filed). The Texas Court of Criminal Appeals held, in Patterson v. State that "conviction for a sexual offense against a child bars conviction for conduct that, on the facts of case, is demonstrably part of the commission of the greater offense." 152 S.W.3d 88 (Tex. Crim. App 2004). Case over, a victory for the Appellant, right? WRONG!

The Court held that because it is not clear from the record whether Appellant "rubbed" the victim with his finger or penis, then the constitutional error is not "clearly apparent from the face of the record," and therefore he did not preserve his appeal.

I am happy to see the Court resort to nit-picking and semantics in order to uphold this convictions (I'm not being facetious). I hope Mr. Atkinson's 20 years in TDC are miserable. As a practical matter, even if the conviction of the lesser offense had been set aside, he would still be serving 20 years for the greater offense. I hate to say, I think the First District probably got this one wrong - But in a way I can appreciate.

Can a Civil Penalty Trigger Double Jeopardy?

This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.

The 5th Amendment to the United States Constitution provides, in relevant part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."  Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one's driver's license in addition to a subsequent prosecution for DWI.  Do civil penalties violate the double jeopardy clause?

As a general rule, the 5th Amendment's prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa.  State v. Solar, 906 S.W.2d 142 (Tex. App. - Fort Worth 1995, pet. ref'd).  The U.S. Supreme Court provided, "whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction."  Hudson v. U.S., 522 U.S. 93 (1997).  However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the "statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty."  Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).

In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson.  Termed the "Hudson factors," courts should consider:

1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as a punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of punishment-retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
7. whether it appears excessive in relation to the alternative purpose assigned.

Hudson at 99-100.  Moreover (as if a 7-factor test weren't enough), the Court further provided, "these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty."  Id at 100.

As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case.  The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:

• Termination of a person's rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect.  State v. Almendarez, ___ S.W.3d ___ (Tex.App. - Corpus Christie 2009).
• Trial for termination of parental rights is a civil proceeding with a remedial result - protecting abused and neglected children - and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child.  Malone v. State, 864 S.W.2d 156 (Tex.App. - Fort Worth 1993, no pet.).
• An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution.  Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
• Texas' civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture.  Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
• Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings.  Capps v. State, 265 S.W.3d 44 (Tex.App. - Houston [1st Dist.] 2008, pet. ref'd).
• Cancellation of defendant's alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application.  Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. - San Antonio 1998, pet. ref'd).

TAKEAWAY:  Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty.  According to the bulk of caselaw, it seems to be quite a steep road.