Trial Judge Influences (But Does not Compel) a Defendant to Testify

The 5th Amendment to the United States Constitution: “[N]o person…shall be compelled in any criminal case to be a witness against himself.”

On January 25, 2012, the Texas Court of Criminal Appeals issued its opinion in the case of Johnson v. State.  This case specifically dealt with a situation that occurred during the sentencing phase of a trial involving defendant Charles Michael Johnson.  Johnson was arrested in 1991 and subsequently indicted for Possession of a Controlled Substance with intent to deliver.  He was released on bond and failed to appear for any further hearings.  Eighteen years later, Johnson was arrested in Florida and returned to Texas to face the charges.  He was convicted by a jury at trial and then elected to have the court assess punishment. 

After the State rested it’s punishment case, the defense had the court take judicial notice of the pre-sentence investigation and then rested.  At that point, the judge asked the Defense if its client wanted to testify.  The Defense stated that he would not.  The judge’s response was, “In all candor, I would kind of like to know what he’s been doing for the last 18 years.” The Defendant then went to the witness stand and testified.  At the end of the hearing, the judge stated, “ Okay. Well, this is obviously a very difficult case in that it’s apparent to me that he has stayed out of trouble, essentially at least, in any realistic way.  I mean, driving with a license suspended is no big deal in the context of things, but on the other hand, I don’t want to reward somebody for running, and I do believe that the defendant lied under oath, sir. I’m sorry. That’s what I think.” The judge then sentenced him to ten years’ confinement.

On appeal, Johnson argued that the trial court had compelled him to testify against himself in violation of his Fifth Amendment right to silence.  The CCA relied on previous precedent establishing the general rule that the privilege to avoid self-incrimination is ordinarily not self-executing.  Minnesota v. Murphy, 465 U.S. 420.  By “not self-executing,” the CCA noted that a defendant can voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the stand and make incriminating statements even if not done knowingly or intelligently.  The CCA stated that the issue was not whether Johnson make a knowing, intelligent and voluntary waiver of his privilege to remain silent, but whether he voluntarily testified or was “coerced” to testify against his will.  The CCA indicated that this question hinged on whether Johnson feared that the trial court would penalize him for remaining silent (which the Court also called the “classic penalty situation”).  The Court found that there was no direct evidence that it would.  Additionally, the CCA found that neither Johnson nor his counsel made any comment indicating that they believed if he remained silent a greater punishment would be assessed.

Finding that Johnson was not confronted with the “classic penalty situation,” the CCA held that he had forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense, despite the trial courts comments before he did so.

CCA Recognizes "Grooming" as a Legitimate Subject of Expert Testimony

Today, in Morris v. State, a 6-3 opinion authored by Presiding Judge Keller, the Texas Court of Criminal Appeals held (by taking judicial notice) that "'grooming' of children for sexual molestation is a legitimate subject of expert testimony."  The opinion, which reads like a law review article at times, goes into great detail about the state and federal courts that have long recognized "grooming" as an appropriate (and helpful) area for expert testimony. (If you don't know what "grooming" is, HERE is the Wikipedia definition.)

Judge Price's dissent is highly critical:

After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all.

Believing the trial record too bare for the Court to take judicial notice of the reliability of grooming-based testimony, Judge Price dissents.  Judges Meyers and Womack joined the dissent.

Judge Meyers also dissented, stating:

Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think [the expert in this case] was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior.

Judges Womack and Price joined the dissent.

Judge Cochran concurred in the judgment and would hold that grooming is an experiential field rather than a "soft science":

This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.” It is just “horse sense” expertise developed over many years of personal experience and observation.

While they all seem to agree that "grooming" is an appropriate area for expert testimony, the lingering question (at least for me) is - What does it take to qualify someone to be an expert witness on child grooming?  A question for a later day I suppose.

A Harmful “Synergistic Effect” Instruction

You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone.

That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction.  It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications).  The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs.  See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004).

Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas).  In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test.  However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle.  Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury.  In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted.

On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone.  The 5th COA further held that the erred was harmful.  On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless).

The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol.  The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains:

should follow the guidelines of Almanza, assaying the degree of harm ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’

The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory.

Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information.  The theory must be supported by the evidence, rather than a mere hunch.

Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case.  She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette.

Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis.

Judge Keasler also dissent, but without a written opinion.

If a Tree Falls in the Forest…

Much like the existential question about the tree falling in the forest, if something occurs during a session of court and there’s no court reporter around to hear it (or transcribe it), did it really occur? More importantly, if the losing party wishes to appeal a ruling that took place during the time when the court reporter was not around, can that party prevail? The simple answer, according to the Texas Court of Criminal Appeals, is NO.

In Davis v. State, the appellant challenged a certain ruling (the granting of a continuance over defense objection), but there was no record of the session of court in which the ruling was made. Accordingly, the appellate court could not determine whether the trial court erred in granting the State’s motion. The appellant asserted that the trial court had a duty to make a record of the hearing and that any deficiency in the record must work against the State as the party that made the motion. Not so, held the CCA, overruling the 5th District Court of Appeals (Dallas).

The CCA explained:

Our case law…imposes an additional, independent burden on the appealing party to make a record demonstrating that [a certain] error occurred in the trial court. This includes a burden to object when the official court reporter is not present, as he is required to be under Rule 13.1, in order to preserve and error that may occur for appeal.

Even though the State had that burden at trial, the appellant, as the appealing party, had an obligation to present a record in the court of appeals that demonstrates he in entitled to appellate relief.

And with that, the CCA overturned the 5th District Court of Appeals, and affirmed appellant's conviction.

Moral of the story for criminal defense lawyers: Always request (under section 52.046 of the Government Code) that a court reporter be present for open sessions of court. You never know what you might want to appeal later. And if for some reason the court reporter isn’t present and you get an adverse ruling, make a later record of it. Give the appellate court something to go on, or else you will certainly lose.  As the CCA put it, "it is the appellant who must bear the consequences of such a definicency in the record."

Note: The CCA mentioned in footnote 19 that it has yet to weigh in on the question discussed in Polasek v. State, 16 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2000, pet. Ref’d) regarding whether Tex. R. App. P. 13.1 requires a court reporter at all sessions or whether section 52.046(a)(1) trumps. Section 52.046(a)(1) requires the court reporter only when one of the parties makes a request.

Judge Johnson concurred HERE, but it is not clear (to me) why.

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Deadly Weapon (A Vehicle), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car,
• Slamming the victim’s head again the car frame,
• Rigging the car’s gas tank to explode,
• Placing the car in neutral and allowing it to run into the victim or a building,
• Suffocating the victim in the trunk, or
• Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

I apologize for the lack of analysis, but this case is really only interesting for nerds like me. I just found the CCA’s list of ways to use a vehicle for assault comical.

You can read the unanimous CCA opinion (Rice v. State) HERE.

Perpetuating the Fiction of the Consensual Police Encounter

In a case released yesterday from the Texas Court of Criminal Appeals (State v. Castleberry), the CCA went to great lengths to defend and perpetuate the fiction of the “consensual police encounter.”

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a “consensual police encounter.” Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.

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

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

The “plain view” doctrine, as explained by the U.S. Supreme Court, provides that

A police officer who is lawfully on private premises pursuant to a warrant (or some legitimate exception to the Fourth Amendment requirement of a warrant) may also seize anything he discovers in plain view on those premises if it is ‘immediately apparent’ to him – this is to say, if he has probable cause to believe – that it constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure.

Minnesota v. Dickerson, 508 U.S. 366 (1993).  Expounding on this principle, the CCA, in White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987), held that

when police officers lack probable cause to believe items in plain view are contraband at the very instant they first see them, they must have probable cause to conduct any further investigation specifically designed to develop probable cause to authorize their seizure of those items.

However, as the CCA now holds, White is no longer good law.  In State v. Dobbs the CCA announced a new rule expanding the plain view doctrine to give law enforcement officers time to conduct further investigation into suspicious items that may not be ‘immediately apparent’ as contraband.

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

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

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

We now hold that, so long as probable cause to believe that items found in plain view constitute contraband arises while police are still lawfully on the premises, and any further investigation into the nature of those items does not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items is permissible under the Fourth Amendment.

The CCA further explained that its holding only applies to those cases wherein the officers further investigation does not incrementally impinge upon any protected privacy or possessory interest of the defendant.  For instance, if the officers in this case had seized the golf clubs and shirts and then called to investigate, the plain view exception would not apply.  

The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant.  So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised—but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

NEW RULE:  Under the plain view doctrine, “immediately apparent” simply means that the viewing officers must have probable cause to believe that an item in plain view is contraband before seizing it.  Gone are the days when the officers must have such a belief at the moment they see the item.

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

Fencing the Confrontation Clause

As the Court of Criminal Appeals aptly recognized, "the constitutional right of confrontation includes the right to cross-examine the witnesses and the opportunity to show that a witness is biased or that his testimony is exaggerated or unbelievable."  In the 1974 Supreme Court case Davis v. Alaska, the Court held that evidence that a witness with a juvenile record might be testifying because of a need to "curry favor" with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontation Clause.  However, rather than view this holding as one of inclusion, the CCA decided last week, in Irby v. State, that rather it was one of exclusion.  This recent holding by the CCA stands to significantly hamper the right to confrontation in Texas.

Regarding the right to confrontation of a witness with a prior juvenile record, the CCA held:

the confrontation clause may require the admission of such evidence if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify.  But the mere fact that a juvenile had been placed on probation or had some other vulnerable relationship with the State is not enough to establish bias or prejudice; the cross-examiner must show some causal connection between the witness’s vulnerable relationship and the witness’s testimony.

 Recognizing the potential implications of such a holding, Judge Holcomb dissented (joined by Judges Womack and Hervey), stating:

I believe that we cast a dark shadow on the constitutional right of confrontation by requiring a defendant to establish the kind of “logical relationship” the majority requires before allowing cross examination of a juvenile witness on his pending probationary record to show his possible bias or motive in testifying for the same prosecutorial authority which also supervises his probation. The majority, in my view, misapplies Davis v. Alaska, which clearly held that the constitutional right to question a juvenile witness regarding his pending probationary status trumps any State interest in protecting such juvenile offenders. Denying the defendant any opportunity to cross-examine a critical juvenile witness regarding his possible bias stemming from his probationary relationship with the State constitutes a denial of the right to effective cross-examination.

Trial Court has No Duty to Sua Sponte Instruct on Lesser-Included Offenses

Yesterday the Texas Court of Criminal Appeals released it opinion in Tolbert v. State (majority opinion HERE).  In Tolbert, the Court considered "whether the trial court was required to sua sponte instruct the jury on the lesser-included offense of murder in appellant's capital murder prosecution." It held that no such instruction is required.

At trial, the government proceeded under a felony-murder theory, alleging that Appellant committed the murder in the course of a robbery.  However, some evidence was presented that Appellant did not decide to rob the victim until after she killed him, which would make it murder and not capital murder.  Accordingly, the State requested a jury instruction on the LIO of murder, a request which the trial judge denied.  When asked, Appellant stated "no objection" to charging the jury on capital murder only - otherwise known as the "all-or-nothing" tactic.  The jury found Appellant guilty of capital murder and she was sentenced to life. (State did not seek the death penalty).

On appeal to the 5th District Court of Appeals, Appellant apparently changed her mind regarding whether the trial judge should have charged the jury on the LIO of murder.  Irrespective of the State's request for the LIO instruction, the 5th Court held that by not sua sponte instructing the jury on the LIO, Appellant was "egregiously harmed" under the Almanza (686 S.W.2d 157) factors and reversed (5th Ct. opinion HERE).  


REVERSING the 5th Court's decision, the CCA stated:

Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party’s request. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.

We, therefore, decide that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of murder and that a jury instruction on this lesser-included offense was not 'applicable to the case' absent a request by the defense for its inclusion in the jury charge.

Judges Johnson and Holcomb dissented, believing that the instruction on the LIO was not an issue that must be requested by the defense, but was part of the "law applicable to the case" which would require a corresponding jury instruction.  Judge Price dissented without opinion.


My thoughts:  Our trial judges are supposed to instruct the jury on the "law applicable to the case." With this decision, the Court departs from years of precedent and would require the defense to specifically request instructions on a LIO.  So now, this is a "defensive issue."  There are definite tactical advantages that can be gained by using the "all-or-nothing" technique of not requesting an LIO instruction, namely the fact that you force a jury of average citizens to make a tough decision on whether to convict for the greater offense rather than letting them essentially "split the baby" with an LIO.  In this case, it simply didn't work and the CCA was not going to correct Appellant's "tactical error" after it proved unwise. (I say "tactical error" simply because it didn't work in this case, not because it should never be done).

Can a Defendant "Un-waive" his Jury Waiver?

If a defendant submits a written waiver of his right to a jury trial in accordance with Article 1.13 of the Texas Code of Criminal Procedure, can he later reassert that right?  And if so, how does he do it?

In a recent published opinion, the Texas Court of Criminal Appeals considered this issue.  See Hobbs v. State.  Justice Cochran delivered the opinion of the court, wherein he stated:

"once the defendant validly waives his right to a jury trial, he does not have an unfettered right to reassert that right."

However, the CCA noted, that if the defendant can show an "absence of adverse consequences," the trial court may, in his discretion, allow the defendant to reassert his right to a jury trial.


What exactly is the burden on the defendant to show an "absence of adverse consequences?"  Per the CCA:

"He must establish, on the record, that his request to withdraw his jury waiver has been made sufficiently in advance of trial such that granting his request will not:  (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the state.  If the defendant's claims are rebutted by that State, trial court, or the record itself, the trial judge does not abuse his discretion in refusing to allow the withdrawal of the waiver."

Whether a defendant is allowed to reassert his right to a jury trial after making a written waiver is very much dependent upon the facts of the particular case.  In Hobbs, the court denied the defendant's request to continue the start of the case and reassert his right to a jury trial because to do so could have allowed the defendant to continue his efforts at witness tampering, which could result in prejudice to the State.  The trial court's denial, according to the 5th Court of Appeals and the CCA, was not an abuse of discretion.

TAKEAWAY:  Do not submit a written jury waiver unless and until you are sure that it is the right move.

Can an Affirmative "Deadly Weapon" Finding be Implied?

According to the CCA, in Crumpton v. State, it can.

In a 5-4 opinion with 2 separate dissents, the CCA disregarded its prior holdings in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985) and LaFleur v. State, 106 S.W.3d 91 (Tex.Cr.App. 2003), concluding that a jury verdict of guilty to criminally negligent homicide (as a lesser-included offense of manslaughter) implies an affirmative "deadly weapon" finding regardless of whether the jury has seen a deadly weapon clause associated with the LIO.

In reaching this decision, the Court relied on Blount v. State, 257 S.W.3d 712 (Tex.Cr.App. 2008) wherein it held that the indictment itself was adequate notice that there would be an issue of use of a deadly weapon. As the dissent points out, however, the thrust of Blount regarded whether the defendant was on "notice," an issue that was not raised in Crumpton.  The appellant in Crumpton argued that the jury was not charged and did not make an express deadly weapon finding when it returned its verdict - the court simply entered a deadly weapon finding as a logical (although not express) result of a guilty verdict to the LIO of criminally negligent homicide (because a homicide necessarily includes use of a deadly weapon or else no one would be dead).

In this case the CCA seems to have checked its reasoning and precedent at the door in order to uphold a conviction at all costs. By examining past CCA caselaw and distinguishing between the issues of "notice" and "express findings," Justice Meyers' dissent should have been the majority opinion.