Closing the Loophole on Outcry Witnesses

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.

Pleading a Tautology

Yesterday, the Court of Criminal Appeals handed down State v. Rodriguez, a case in which the State appealed the lower court decision setting aside the information (charging document) for failure to plead an offense.

The State charged Roman Rodriguez under section 42.12 of the Texas Penal Code for recklessly discharging a firearm inside city limits. The information alleged that the defendant

recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable.

Upholding the 4th District Court of Appeals (San Antonio), the CCA held that the charge was deficient because it failed to allege that the act was done recklessly. The CCA noted that,

The State’s information alleged that Mr. Rodriguez recklessly discharged a firearm inside [the city limits] “by pulling the trigger on an firearm which contained ammunition and was operable.” Well, of course he did. Everyone who discharges a firearm pulls the trigger, and every firearm that his discharged contains ammunition and is operable if it discharges.

The Court explained that, in essence, the State pled a tautology – “The defendant recklessly discharged a firearm because he discharged a firearm.” The Court further noted that there are many occasions where a person might discharge a firearm inside the city limits by pulling the trigger on an operable firearm containing ammunition, such as: “if a person shoots a robber or a rapist climbing into his bedroom window,” or “if he shoots a rattlesnake lying in the bushes.”

Accordingly, because the State only alleged “how” the defendant discharged the firearm and failed to alleged how he “recklessly” discharged the same, the information was deficient and should be set aside.

Judge Price concurred in the result and writes separately to express his opinion that the statute (section 42.12) is “hopelessly ambiguous” regarding the recklessness requirement.  Presiding Judge Keller joined in Judge Price’s concurrence. Judge Womack also concurs without opinion.

What's in a Name?

Last year I wrote about Byrd v. State, a case out of the 4th District Court of Appeals (San Antonio). In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Wal-Mart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future theft cases, the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Wal-Mart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.

Juvenile Life Without Parole Sentence Affirmed

In 2005, the U.S. Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), holding that the Eighth Amendment prohibition against cruel and unusual punishment forbids the execution of juveniles (i.e. anyone under the age of 18). At that time, the juveniles in Texas that were on death row had their sentences commuted to Life with parole. Also in 2005, the Texas Legislature amended Section 12.31(a) of the Texas Penal Code to require Life Without Parole (LWOP) sentences for capital cases in which the State does not seek the death penalty. This new LWOP provision applied to offenses committed on or after September 1, 2005.

Consequently, because juveniles could no longer be sentenced to death, all juveniles convicted of a capital crime in Texas were automatically sentenced to LWOP. In 2009, however, the legislature again amended section 12.31(a), to provide, in relevant part:

An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the [TDCJ] for life [i.e. with parole], if the individual’s case was transferred to the court under Section 54.02, Family Code.

The new life imprisonment (with parole) ceiling on juvenile capital offenses was not applied retroactively. The legislature specifically provided that the amendment applied only to an offense committed on or after September 1, 2009.

Chris Joshua Meadoux, the subject of a recent Court of Criminal Appeals opinion, was a juvenile capital offender sentenced to LWOP for a double murder that occurred in 2007. Unfortunately for him, his offense was committed during the 4 year window in which LWOP was the required punishment for a juvenile capital offender. He complained on appeal that his sentence violated the Eighth Amendment because the 2009 amendment reducing LWOP to life indicates that LWOP is a cruel and unusual punishment for juveniles. His specific arguments on appeal were:

1. Juveniles were less morally culpable (i.e. blameworthy) for their crimes than are adult offenders;
2. Life imprisonment without the possibility of parole did not serve as a measurable deterrent for juveniles; and
3. The Legislature’s recent amendment of the Texas Penal Code Section 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders signified that the evolving standard of decenecy, at least in Texas, forbade the categorical assessment of LWOP for juvenile capital offenders.

Appellant requested that his case be remanded back to the trial court for a new sentencing hearing in which life imprisonment would be the maximum penalty.

The 4th District Court of Appeals (San Antonio) held that the Eight Amendment did not bar LWOP in Appellant’s case, as his crimes were committed during the time in which LWOP was the required punishment. In its opinion of November 17, 2010, the CCA agreed, holding that:

(1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering the balancing of these four factors, we conclude that Meaduox has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

Judge Meyers penned a dissenting opinion and was joined by Judge Johnson. They would hold that because the Legislature subsequently determined that LWOP is inappropriate for juvenile offenders, the sentence in Appellant’s case is unreasonably harsh.

I won’t make a lot of friends with my opinion of this holding, because I think the court got it right. In fact, I think the Legislature got it wrong in 2009. I believe that LWOP should still be an available punishment for juvenile capital offenders, but as an option, with life as the other alternative. We should let the jury decide whether LWOP or life is appropriate in each case. In this case, Meadoux committed a double murder and then tried to burn the bodies in a house fire to destroy the evidence. He got what he deserved.

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. 

Trial Judge Must Make an Informed Decision

"It is highly unlikely a judge would sentence an unremorseful, fourth-time DWI offender to probation, regardless of any available program or sanction," says Justice Hilbig in his dissenting opinion in Gutierrez v. State.

However, a majority of the 4th District Court of Appeals (San Antonio) reversed and remanded the case for a new sentencing hearing because the trial judge failed to order a presentence investigation report.  

Article 42.12, section 9, of the Texas Code Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or 'if the judge finds there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.'

The trial judge having failed to order a report or explain on the record why a report was unnecessary, the Court found harmful error.  The Court explained that:

because there was no presentence investigation report, the trial judge was not provided with required 'proposed client supervision plan.'  Without a 'proposed client supervision plan' outlining the programs and sanctions available through the community supervision and corrections department to [the defendant], the trial judge did not have before her all the information required by statute for her consideration before imposing sentence.

While, in my opinion, it is doubtful that Gutierrez' new sentencing will be any less than the original sentence of 4 months in jail and a $1,500 fine, he will get his chance.  I think 4 months and $1,500 is pretty light for a 4th DWI.

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.

Reasonable Suspicion Standard Exists in Name Only in San Antonio

Ask any police officer in San Antonio and I'm sure he can tell you that in order to initiate an investigatory detention, he/she must have "Reasonable Suspicion" that a person is, has been, or will soon be engaged in criminal activity.  Great, at least we know that a standard exists.  The problem, however, is the application of the legal standard to the facts of a particular case.  The problem is that "Reasonable Suspicion" is a conclusory title slapped onto any fact scenario law enforcement happens to encounter.  Well, Justice Rebecca Simmons of the 4th District Court of Appeals (San Antonio) has had enough (at least in one case she did)!

Never has this court upheld an investigative stop based on such a paucity of facts.

These the unflinching words of Justice Simmons' dissent to the Court's denial of a request for an en banc consideration in Martinez v. State.  Chief Justice Stone joined the dissent, which explained:

As a matter of law, the totality of the circumstances did not provide reasonable suspicion for the investigative stop of Martinez. ...I also believe the opinion conflicts with this court’s prior opinion in State v. Simmang, 945 S.W.2d 219 (Tex. App.—San Antonio 1997, no pet.).

Well, let's see.  What exactly was it about this reasonable suspicion stop that so ruffled the feathers of these two jurists?  As a starting point, you must remember that to support an investigative detention, the officer must point to "specific articulable facts, which, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaging in criminal activity."  Texas case law requires that these facts amount to "more than a mere hunch or suspicion."

Here's how the officer explained it at trial:

[based on an anonymous tip] dispatch put out a call that a vehicle had stopped and someone supposedly put some bicycles in the back of a pickup truck in a general area of town.  The caller was simply a passerby.  All I got from the dispatch was a vehicle description (blue Ford pickup) and a male driving the vehicle.  Dispatch repeated twice that the pickup was blue.

First of all, is it illegal to put bicycles in the back of a pickup?  Perhaps, but I put my bicycle in the back of my pickup several times a week. For the sake of argument, let's just assume that this activity is evidence of larceny.  Ok - Got it.  A blue Ford pickup, with some bicycles in the back, driven by a male.  But who did the officer stop? 

He stopped the only Ford pickup he could find in that area of town.  He stopped a male driving a GREEN pickup.  Add to that, the pickup didn't even have any bicycles in it!  And what does this investigatory detention (for a possible larceny, mind you) yield...a DWI conviction.  We can expect that the officer believes he had "reasonable suspicion" initiate the stop (an officer always thinks he has reasonable suspicion), but, as the dissent points out:

Surprisingly, this court concludes [the officer] had reasonable suspicion to stop Martinez...

I must have been traveling this winter when this opinion was released by the Court.  Thankfully, these justices highlighted the Court's questionable reasoning for us.  We'll be sure to keep our eye on this case to see what the CCA has to say.  Even our conservative and prosecution-friendly CCA might reverse this one!

Conspiracy to Conspire?

Here’s a quick update on some cases that were released last week. Links to the cases are provided.

Unquestionable Incompetency
Gonzales v. State, (Tex. Crim. App.), June 16, 2010 – Held: A trial judge is not required to conduct a competency hearing on his own initiative after hearing evidence that, due to alcohol or drug abuse, the defendant suffered amnesia with respect to events giving rise to the charged offense.

Cruel, but not Unusual
Davis v. State, (Tex. Crim. App.), June 16, 2010 – Held: Death sentence affirmed. Appellant raises 11 points of error challenging the propriety of the Texas Death Penalty scheme, including the allegation that death by lethal injection is unconstitutional as cruel and unusual punishment. Having considered and rejected these exact claims in previous cases, the CCA overruled all points of error and upheld the death sentence. (I guess in Texas, the death penalty, while arguably cruel, is by no means unusual.)

A Threat to Society From Behind Bars
Estrada v. State, (Tex. Crim. App.), June 16, 2010 – Held: For a non-parole eligible capital defendant, the relevant question to ask the jury, who is called upon to determine whether the death penalty should be levied, remains “whether there is a probability that the defendant would constitute a continuing threat to society whether in or out of prison.” The CCA rejected defendant’s argument that the issue should be restricted to future dangerousness in prison only (since he would be ineligible for parole). Side note – the death penalty was reversed and remanded on a separate issue (the State presented false and misleading testimony during the punishment phase).

Conspiracy to Conspire
Barrera v. State, (4th Dist.—San Antonio), June 16, 2010 – Held: “Conspiracy to commit aggravated kidnapping” and “engaging in organized criminal activity though conspiring to commit aggravated kidnapping” are not the same offense for double jeopardy purposes. (Truly a technical distinction with which I do not agree. Good thing there isn’t another offense on the books for “engaging in organized criminal activity by conspiring to engage in organized criminal activity”!)

Who Let Him in Here?!?

Lots of action from the Texas Court of Criminal Appeals today.  The first case on the list of those designated for publication is a combo case - Trinidad and Adams v. State.  This case dealt with the propriety of allowing an alternate (13th) juror to accompany the other 12 jurors in the deliberation room while they reached a verdict.


You would think that this issue would be long settled - Texas courts have been around for quite a while, as has the requirement of a 12-person (and only 12-person) jury.  However, in 2007, the Texas legislature amended the Code of Criminal Procedure (Article 33.011(b)) to provide that:

an alternatee juror in a criminal case tried in the district court, if not called upon to replace a regular juror, shall no longer be discharged at the time that the jury retires to deliberate, but shall now be discharged after the jury has rendered a verdict.

The problem with this amendment, the CCA notes, is that the legislature was silent regarding whether the alternate juror should be allowed to be present for, and participate in, the jury's deliberations. 


In both Trinidad and Adams, the trial judge allowed the alternate juror to be join the jury during deliberations, and in both cases, the defendant did not object to this practice.  On appeal, however, the 4th District Court of Appeals (San Antonio) reversed the convictions, holding that it was constitutional error for the trial court to allow the alternate juror to be present during deliberations.  The 4th Court further held that the Appellants could not forfeit the right to a 12-person only jury, as that right is a "waiver-only" right.  See Trinidad v. State, 275 S.W. 3d 52 (Tex. App.--San Antonio 2008) and Adams v. State, 275 S.W. 3d 61 (Tex. App.--San Antonio 2008).


"Not so fast, my friend," said the CCA today.  Reversing the judgments of the Court of Appeals in both cases, the CCA held:

In neither of the appellants' cases was the alternate juror allowed to vote on the ultimate verdict in the case, at either stage of trial.  As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were, judged by a jury of more than the constitutionally requisite number.

On the issue of waiver/forfeiture, the CCA also disagreed with the 4th Court.

The appellants had every opportunity to object that the trial court's attempts to comply with the recent amendment to Article 33.011(b) of the Code of Criminal Procedure, would run afoul of Article 36.22, but they did not do so.  Under these circumstances, we sustain the State's assertion that these appellants have procedurally defaulted their statutory arguments on appeal, and we hold accordingly that the court of appeals erred to reach the merits of their statutorily based claims.

So where does this leave us on the alternate-juror-in-the-deliberation-room fiasco.  From reading this opinion (between the lines in some places), it appears to me that, had the appellants objected at trial that by allowing the alternate juror in the deliberation room the trial court would be "allowing an outside influence to be brought to bear on the constitutionally-composed 12-member jury," the CCA would have come down on the other side and affirmed the reversal of their convictions.


Takeaway:  OBJECT at trial (and on appeal) under Article 36.22 of the Texas Code of Criminal Procedure, if any outside person (alternate juror or otherwise) is allowed to enter or remain in the deliberation room with the 12 jurors.  At least you will have preserved error if the trial judge allows this to happen.


Judge Johnson concurred, admonishing that "having the alternate juror remain outside [the deliberation room] would avoid just the situation we address here."

Must the State Prove the Identity of the Victim in a Theft Case?

The 4th District Court of Appeal (San Antonio) delivered a sharply divided en banc opinion yesterday in Byrd v. State.  The issue in the case was whether, in a theft case, that State is required to prove the person named as owner in the charging instrument was the actual owner of the property?  In a 4-3 decision the majority held that because the owner’s name is not a statutory element of the offense of theft, the State need not prove the name of the property owner as charged.

In her dissent, Justice Simmons did not mince words:

Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:

“with the intent to deprive the owner, Mike Morales, of property, . . . did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property . . .

Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict.  This is an astonishing result. T he consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner.  I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material.  The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002).  In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged.  There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof.  But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.

Lawyers Convicted of Theft by Deception in Dramatic Sex Scandal

Many times while reading appellate case law, I find myself searching for that legal wrinkle that makes the case worth reading (or blawging about).  Sometimes, the significance of the appellate decision is more obvious.  Other times (like today), I read a case, the facts of which are just so darn compelling, I don't even pay attention to the legal arguments.  Here's a good one for you:

Wife finds out that husband is cheating on her and that he has been perusing an adult internet site.  Eager to "catch him in the act" she signs up for an online profile and describes herself as a sex-starved housewife, looking for the kind of pleasure that only a strong man can provide.  He never takes the bait, but several other gentlemen (all very prominent, well-to-do, gentlemen) cash-in on her offer (all on separate occasions and without knowledge of the others).  Husband gets wind of her indiscretions and confronts her at an Austin hotel on the very eve of one such encounter.  Rather than fight, or pursue a divorce, they hatch a plan.  (It's somewhat possible that this plan was hatched before she met the 4 gentlemen, but it isn't clear from the record).

Husband, a Texas lawyer, drafts Rule 202 petitions under the Texas Rules of Civil Procedure seeking testimony and evidence relevant to potential claims (bogus claims) against the 4 gentlemen and his wife.  Wife, also an attorney (not sure if she is licensed in TX), helps him by editing his drafts.  She then contacts each of the men, tells them that her husband found out about the affair and would like to speak with them.  Each ultimately agrees to meet with the husband and at the meeting he serves the Rule 202 petitions, along with a not-so-subtle letter "suggesting" that they pay him a large sum of money (checks payable to him or a sham charity).  Husband collects a total of $115,000 from the 4 gentlemen in exchange for letters of non-disclosure.  Husband and Wife magically reconcile their rocky relationship and use the money as a down-payment on a new $625,000 home.

It isn't clear how this ordeal was ultimately discovered, but Husband and Wife are eventually charged with Theft by Deception for the shakedowns.  Not sure of the final outcome of Husband's trial (please fill me in if you know), but Wife is convicted of 5 counts and awarded ten years' confinement for each count, to run concurrently (suspended and placed on 10 years community supervision).

Wow!  That is the stuff of soap operas!  If you want to find out more about this story and see if you know the attorneys involved (forgot to mention, one of the gentlemen callers was also a Texas attorney), see the opinion of the 4th District Court of Appeals (San Antonio) in Roberts v. State, 17 March 2010, HERE.

Officer Falsified Report to Induce Confession: CCA Reverses Conviction

Wilson v. State, NO. PD-0307-09.

In an issue of first impression (so says the majority - dissenters not convinced), the Texas Court of Criminal Appeals considered whether article 38.23 of the Code of Criminal Procedure bars the admissibility of a confession (to murder) if the interrogating officer fabricates documentary evidence in violation of the Texas Penal Code section 37.09 and uses it to persuade a suspect to confess.

In Wilson, a detective “knowingly creat[ed] the false document (a fingerprint test result) with the intention that defendant would consider the document as genuine and confess to shooting the victim.”  Writing for the slim majority (5-4), Judge Cochran reasoned that...

The purpose of section 37.09 is to maintain the honesty, integrity, and reliability of the justice system and prohibiting anyone–including members of the government–from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding. Obstruction-of-justice offenses, such as tampering with evidence or government documents, address “the harm that comes from the [actor’s] disobedience of the law–damage to the authority of the government; a lessening of the public’s confidence in our institutions; public cynicism, fear, and uncertainty; and a social climate that is likely to lead to even greater disobedience."

Accordingly, the Court affirmed the decision of the "San Antonio Court of Appeals, which held that (1) the interrogating officer violated the law by fabricating a forensic report falsely stating that appellant’s fingerprints were found on the magazine clip of the murder weapon; and (2) the trial judge erred in denying appellant’s motion to suppress."

See majority opinion HERE.

The dissenters (Meyers, J., and Keller, P.J., Keasler, J., and Hervery, J.) would have reversed.

Meyers (HERE) would reverse because the officer did not, in his view, violate section 37.09, because the latent fingerprints could have very well been the suspect's (and in hindsight were).

Keasler, Keller, and Hervey would reverse because the appellant did not preserve error (HERE) and because he had no standing to challenge the officer's violation of section 37.09 (HERE).

Are all circumstances "Exigent" these days?

The 4th Amendment and the person rights is secures have a long history.  At the very core [of the 4th amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government instrusion.

Justice Potter Stewart

I just read a case out of the 4th Court of Appeals (San Antonio) - Wisenbaker v. State, No. 04-09-00364-CR.  The sole issue on appeal was whether the trial court erred in denying Wisenbaker's motion to suppress a warrantless search of his residence that led to the seizure of marijuana.  While the holding was not surprising (especially under the abuse of discretion standard), this case reflects the eroding nature of our 4th amendment rights.  It was once said that a man's home is his castle.  Well, I guess today's castles do not have moats and the drawbridge is always down.

Wisenbaker:  Appellant's neighbor called the police to report that appellant and friends were smoking marijuana on the premises.  The neighbor informed the police that the appellant "constantly" smoked marijuana (i.e. that was not an uncommon occurrence).  The officer peered through the neighbor's fence and viewed appellant holding what appeared to be a marijuana pipe.  Upon seeing this, the officer contacted his supervisor about obtaining a warrant and when he was told that it would take "a couple of hours," he decided to conduct a "knock and talk."  Appellant, however, had a sign on his front door directing visitors to "Go around, use other door."  Following that instruction, the officer went around to the door through which he had previously viewed appellant.  Before he had the chance to knock, he locked eyes with appellant, who appeared startled.  The officer then proceeded into the house and found several items of drug paraphernalia along with a usable quantity of marijuana.  The Court upheld the search, reasoning that "exigent circumstances" existed because appellant would have likely destroyed the evidence.

These facts, I'm sure, are pretty common throughout Texas.  No big surprises here.  My main concern is this:  If the neighbor told the police that the appellant "constantly" had people visiting and that they were "always" smoking marijuana, why then could the officer not wait to obtain a warrant before entering the house?  I realize that once appellant saw the officer, he was likely to destroy the evidence (wouldn't you), but why did the officer even need to confront appellant at that time.  The officer created an exigent circumstance where one otherwise did not exist.  It would have been perfectly reasonable for the officer to obtain a warrant and, based on the tip from the neighbor, he would not have been at any risk of being too late.

Many would even say that the 4th amendment died long ago.  I'm not so sure that I don't agree.

Deadly Weapon Enhancement for Homicide Cases is a Joke!

Back in December, I wrote about the Texas Court of Criminal Appeals' decision in Crumpton v. State.  See my post HERE.  In Crumpton, the Court held that a "deadly weapon" finding is implied when a defendant is convicted of criminally negligent homicide.  No longer does the jury have to actually return an affirmative finding in order for the State to "enhance" the punishment range.

The infection in our criminal justice system regarding the deadly weapon finding has already begun, as we see the 4th District Court of Appeals (San Antonio) following the CCA's lead.  In McCallum v. State, the judge implied a deadly weapon finding from the jury's verdict convicting the defendant of the LIO of criminally negligent homicide (by striking a victim with his hand).  On appeal, McCallum argued that the jury is the proper body to make the deadly weapon finding, not the judge.  But, relying on Crumpton the Court held that the deadly weapon finding was implicit.

How did we get here?  This is legislating from the bench if I've ever seen it.  Why did the legislature create a punishment range for homicide offenses, if the State can summarily enhance them.  The definition of "deadly weapon" is "anything that in the manner if its use...is capable of causing death."  That means everything.  There have been cases where the ground was a deadly weapon.

So my questions is...If the victim in every homicide is dead (obviously), and a verdict of guilty for any homicide offense (including LIOs) implies the use of a deadly weapon, has enhancement simply become a matter of course in every homicide case?


Why do we even need a legislature when we have judges?

What if Your Objection Contrasts with Well-established Caselaw?

What should you do if your objection to evidence clearly contrasts with well-established caselaw?  Should you make your objection anyway, knowing full-well that it goes against current precedent?  If so, do you couch your objection in policy or fairness terms, hoping that the court will simply decide to depart from the current state of the law?  Or do you sit back and make no objection at all?

According to the 4th Court of Appeals (San Antonio), you must make any and all objections to the admission of evidence at the trial court (whether the objection follows or contrasts with current precedent).  This is not a novel concept as the general rule is well-established, but it becomes much more interesting when you consider a case like Bishop v. State, 04-08-00693-CR. (Sorry link down, will try to post later).

In Bishop, the defendant did not object at trial to the admission of evidence which was seized from his glove compartment as a search incident to arrest.  At the time of the search, the defendant was in custody in the backseat of a patrol car and could not gain access to his vehicle.  The defendant's counsel did not object at trial because this type of evidence (that seized from a glove compartment as a search incident to arrest) is routinely admitted under the Supreme Court holding in New York v. Belton, 453 U.S. 454 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest) and the Texas Court of Criminal Appeals' holding in State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999).  As a result the defendant was convicted at trial.

Between the time of the conviction and appeal, the Supreme Court issued its opinion in U.S. v. Gant, 129 S.Ct. 1710 (2009).  In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest  to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Based on this new caselaw, the defendant argued (for the first time) on appeal that the seach of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car.

Rather than recognize the blatant unreasonable search, the 4th Court of Appeals simply punted the issued on procedural grounds by holding that the issue cannot be raised for the first time on appeal.  So in essence, what the court is saying is that litigants need to make any and all objections at trial even though they may conflict with well-established caselaw.  I would put in the disclaimer that you probably should not make frivolous objections, but if you have an honest, conscientious objection to evidence, even if only based on policy or fairness, make it!

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.

LWOP Upheld for Juvenile Capital Murder Case

The Fourth Court of Appeals (San Antonio), who, by the way, issues the most aesthetically pleasing opinions, just upheld a Cruel and Unusual Punishment challenge Texas' sentencing scheme (pre-Sept 1, 2009) that imposed a mandatory life without parole (LWOP) punishment on a juvenile capital murder offender.  Meadoux v. State.

Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course).  The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished.  Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.

After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent.  "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights.  Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."

If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here.  Justice Speedlin does an excellent job in her presentation of the law and application of the facts.  Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.

I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders.  I hate that the Court gave such little attention to this issue (4 measly pages).  As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.

I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented."  Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases.  If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.

This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP.  But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.