Texas Court of Criminal Appeals Case Updates – Sufficiency of Evidence

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

“Operating” a Vehicle in the DWI Context

Under Section 49.04(a) of the Texas Penal Code, a person commits the offense of DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Emphasis added.  The Penal Code, however, does not define the term “operating.” When words are left undefined by statute, the Texas Government Code Section 311.011 tells us that those words are to be “construed according to the rules of grammar and common usage,” unless the word or phrase has some “technical or particular meaning,” in which case, the word or phrase “shall be construed accordingly.” What about the word “operating?” Is it common or technical?

In the trial of State v. Kirsch out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road.  As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated.  Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:

to exert personal effort to cause the vehicle to function.

To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions).  Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant indeed operated it.  But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make).  Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.

The 6th District Court of Appeals (Texarkana) affirmed the conviction.

The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:

Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.

The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free," the CCA held, "to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.

There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.

Consummation Optional for Credit/Debit Card Abuse

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Debit Card Abuse if that person “presents or uses” a debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a debit card? Can someone “present” a debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for "use."

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.

The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal signifigance apart from use.

Voluntary Deportation as a Condition of Probation?

On May 12, 2004, when Maricela Rodriguez Gutierrez was placed on community supervision, she agreed her community supervision status would subject her to twenty-nine supervisory conditions.  Fifteen of those conditions were general conditions, seven were financial, two were drug-related, two were education-related, and three were immigration-related.

One of the immigration-related requirements of her community supervision (i.e. probation) was that she obtain legal immigration status by the end of twelve months, and if she did not obtain legal status, to leave the country and reside in a location where she does have a legally authorized status.  As you can imagine, she failed to do this (if she had satisfied the condition, then I probably wouldn't be writing about it).  Accordingly, the trial court revoked the community supervision. 

Appellant now argues that the term requiring that she leave the United States was void and, thus, cannot support her revocation.  The 6th District Court of Appeals (Texarkana) agreed.  The Court held that upon revocation of community supervision, the violated term—that the defendant leave the U.S.—was void and the revocation could not stand.  The Court explained that immigration matters are within the exclusive jurisdiction of the federal government therefore a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.

See the Court's full opinion in Gutierrez v. State HERE.

One Need Not Be Present to Be Robbed

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the "robber" stole the clerk’s wallet and some money that was behind the counter. The "robber" never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course committing theft…and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas: Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

'knowingly' does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State HERE.

A "Shocking" Ruling

In Texas, there are certain types of offenses for which a trial judge may not order community supervision (i.e. Probation). See Tex. Code Crim. Proc. 42.12 § 3g. A jury, on the other hand, in those same cases, may recommend to the judge that community supervision be ordered and the law provides that the judge shall so order it.

Section 6 of Article 42.12 also provides the judge with another probation option – Shock Probation. Shock Probation allows a defendant to be released early from a confinement sentence and placed back on regular probation if:

(1) the defendant is otherwise eligible for community supervision under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.

BUT…does section (1) mean that the defendant is eligible for Shock Probation if he is eligible for ANY community supervision under 42.12, including jury recommended (i.e. when the judge cannot do it himself) or must be eligible for the more restrictive JUDGE-ORDERED community supervision?

I’ll admit that I was confused when I saw this question posed in the recent CCA case – State v. Posey. In Posey, the State was appealing a decision of the 6th District Court of Appeals (Texarkana) holding that the trial judge can impose Shock Probation in any case in which the defendant is eligible for ANY type of probation under Article 42.12. The State was of the mind that the defendant must have initially been eligible for Judge-Ordered community supervision to later be eligible for Shock Probation.

Posey was convicted of two criminally negligent homicides. Because the jury made a deadly-weapon finding, the judge was unable to order community supervision without a jury recommendation for such. The jury recommended community supervision and the judge ordered it. Later, Posey violated the terms of his community supervision and the State moved to revoke his probation. After Posey had begun serving his resulting confinement sentence, he filed a Motion to Impose Community Supervision and the judge granted Shock Probation. Posey was released from jail and placed back on probation.

The State appealed the issue to the CCA.  Noting an ambiguity in Article 42.12, the Court of Criminal Appeals donned their legislative hats and signed a new bill into law. Here’s the new rule with regard to Shock Probation under section 6 of 42.12:

A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

In so holding, the CCA cleaned up a gap in the law and, in my opinion, interpreted section 6 consistently with section 3. If a trial judge cannot order community supervision without a jury recommendation, then he should not also be able to order shock probation. Good holding, but, of course, you would always prefer that a legislature be the body handing down the law.

Judge Keasler concurred and is of the opinion that the deadly weapon finding precluded the Defendant from being placed on Shock Probation.

No Such Thing as "Implied Bias"

Without fanfare, the Court today announces that there is no such thing as the Sixth Amendment doctrine of implied bias.

The 6th Amendment to the U.S. Constitution guarantees every criminal defendant the right to an impartial jury. The Texas Court of Criminal Appeals’ recent decision in Uranga v. State, however, threatens an essential aspect of this fundamental right by rejecting the notion of implied bias. Put simply, “implied bias” exists when it appears that a juror has, for whatever reason, a personal interest in the outcome of the case. When implied bias exists, the biased juror should normally be stricken from the panel.

In the Uranga case, the defendant was convicted of possession of methamphetamine. During the sentencing portion of the trial, the State presented extraneous offense evidence that the defendant had, on one occasion, attempted to evade police in his vehicle, and in the process, driven onto someone’s lawn. This event had been captured by the pursuing police officer’s in-car camera. After the jury watched the video, one of the jurors realized that it was his lawn on which the defendant had driven. Apparently, the juror never knew what happened to his lawn until the moment when he saw the video. Accordingly, the juror brought this to the attention of the court.

The judge then questioned the juror, outside the presence of the other jurors, about whether, after seeing this video and realizing that the defendant had damaged his lawn, he could continue to be fair and impartial in his role as a juror. Of course, the juror answered yes – he could be fair. After all, nobody wants to say that they cannot be fair. Nonetheless, the defense moved for a mistrial and the judge denied the motion. The juror remained on the case and the defendant was sentenced to life in prison.

On appeal, the appellant complained that he was denied a fair and impartial jury when the judge allowed the particular juror to remain on the case for sentencing. The 6th District Court of Appeals (Texarkana) held that the doctrine of implied bias should not be applied in this case and affirmed the conviction. The CCA now affirms, holding that in such a case as this, appellant must show actual bias in order to obtain relief. In so holding, the CCA all but extinguishes the doctrine of implied juror bias.

Judge Price, however, believes that the doctrine of implied bias is alive and well in American courts. Here’s a little of what he had to say in his dissent (joined by Judge Holcomb):

Without fanfare, the Court today announces that there is no such thing as the Sixth Amendment doctrine of implied bias.  The whole thing is apparently a figment of Justice O'Connor's imagination.  I am here to attest that the implied bias doctrine does exist.  I know it does; I have seen it...
[T]he Fifth Circuit regards the doctrine as so entrenched that it has seen fit to reverse a capital murder conviction on the basis of implied juror bias...

Regarding the CCA's requirement to show actual bias, Judge Price writes:

Determining actual bias of a juror's part is problematice to begin with, 'partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.'  At a certain point the potential for bias may reach such a level that judges cannot depend of the time-honored tools for gauging credibility, such as tone of voice and demeanor, to ascertain the trustworthiness of the juror's claims of impartiality.

Even in Texas, this case surprised me.  I thought that the Court would have reversed and ordered a new sentencing hearing.  As the dissent points out, there can be "few more compelling reasons to impose punishment on an improper basis than the motive to avenge some wrong."  If for not other reason, the CCA should have reversed this case to avoid the appearance of impropriety in Texas courts.  Our prosecutors preach "justice" and "justice" should certainly include fairness.  The defendant may have still been sentenced to life with a new jury, but at least, we would know that he wasn't denied a fundamental constiutional right in the process.  He would be able to spend the rest of his life in prison knowing he got a fair shake.

Pay No Attention to the Meth Lab Behind the Curtain

Woolverton v. State - The police searched a home with the express consent of the owner.  There was disputed testimony as to whether Appellant (a co-tenant) objected to the search.  As warrantless searches tend to go, the police then found a meth lab in the home.  Appellant was convicted of possession and manufacture of methamphetamine and sentenced to 10 and 40 years (to run concurrently). (Note: A conviction for both possession and manufacture violates Double Jeopardy as recently held by the CCA.  See my previous post HERE).

Predictably, Appellant asserted on appeal that the warrantless search of the home violated the 4th Amendment.  Citing Supreme Court precedent from Georgia v. Randolph, 547 U.S. 103 (2006), the 6th District Court of Appeals (Texarkana) recognized:

The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.  A third party may give consent to search property over which they have joint access or control.  Where cotenants or joint occupants live at a residence, either tenant may give the law enforcement officer consent to search the premises so long as that tenant has control over and authority to use the premises.

The court also noted, however, that a co-tenant's unambiguous refusal of consent effectively overrules the previous consent of the other co-tenant.  In this case, Appellant testified that she objected to the search and made her objection known to the police officers, while the officer testified that she made no objection at all.  In denying the motion to suppress, the trial court found:

In this case, it comes down to a credibility determination and the Court finds that the testimony of the defendant in this case is not credible and the Court finds that the testimony of the officers is credible, that she did not object, that she was cooperative, that she did not even inform them that she resided there, although I think there was some testimony by one of the officers that he knew that. But she never objected to the search.

The appellate court agreed that the trial court correctly applied the law of search and seizure to the facts of the case, and affirmed the trial court's ruling.

Because the findings of the trial court are based on an evaluation of credibility and demeanor of the witnesses, we defer to those findings as they are supported by the record.

Property Owners Testimony Alone May Satisfy Loss Element of Criminal Mischief Offense

An overdue apology to our readers out there.  As the tempo of my day job increases, my posting of Texas criminal law news and cases decreases.  Although I doubt there is anyone waiting by their computer for me to post about breaking Texas cases, I apologize for my apathy nonetheless.  However, today is not the day that I resume substantive and continuous posting. 

Here's a blurb (a cut and paste, actually) about a recent CCA opinion regarding the evidence required to prove penuciary loss element of a criminal mischief offense.

Holz v. State: 

A person commits the offense of criminal mischief when she intentionally or knowingly damages or destroys tangible property without the effective consent of the owner.  The amount of pecuniary loss suffered by the owner determines the degree of the offense.  If the property is damaged (as opposed to destroyed) the amount of pecuniary loss is determined by “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.”

The question presented was whether, in order to prove the pecuniary loss element of a criminal mischief offense, a non-expert property owner's testimony about the cost of repairing or restoring his damaged property can be sufficient without further evidence?

Reversing the judgment of the 6th District Court of Appeals and clairfying the it prior holding in Elomary v. State, 796 S.W.2d 191 (Tex. Cr. App. 1990), the CCA held that expert testimony is not required to prove the pecuniary loss element and that a non-expert property owner's testimony may be sufficient, even standing alone.

Going Beyond Relevance

Capital Murder Conviction Reversed for Improper “Bad Acts” Evidence Offered by the State.

The State had a solid Capital Murder case against Desmond Dewayne Jackson. Here’s some of the evidence the State introduced to show that Jackson robbed the victim, shot him, and then fled:

• Jackson admitted to a friend that he committed the murder.
• Jackson admitted that before he attempted the robbery (which resulted in the murder) he studied the victim’s routine of going into the bank and returning with money for his store.
• Jackson stated that he killed the man with “a .45.”
• The victim died of gunshot wounds from a .45 caliber pistol.
• Jackson stated that he stole approximately $8,000 and fled through the woods.
• The victim had just received $8,884 from the bank.
• Nearby witnesses saw a man fitting Jackson's description flee into the woods near the time of the murder.
• Expended shells seized during a search of Jackson’s house had similar bunting markings as the shells found at the scene of the murder.
• Jackson flew from Dallas to Atlanta the day after the crime.
• Jackson’s wife had some poorly explained absences from work on the day of the crime.
• Jackson lied to the police on several occasions concerning his whereabouts on the day of the crime.

Despite what the 6th District Court of Appeals characterized in its opinion as “substantial evidence of guilt,” the State apparently did not feel that it had enough. Perhaps that was why, at the conclusion of the defense case-in-chief, the State spent another 2 and ½ days introducing “rebuttal” evidence that Jackson also committed an armed robbery of a Kroger grocery store using a .45 caliber pistol. The State did not contend (at trial or on appeal) that the crimes were related nor did it allege that the two crimes demonstrated a modus operandi (common scheme) by the perpetrator. Rather, the State offered the extraneous offense evidence “to prove identity, to prove intent, and/or to rebut a defensive theory.”

The general rule is that extraneous offense (other bad acts) evidence is not admissible to prove the character of a person in order to show that he acted in conformity with that character on the day in question. It may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In this case, the State chose “identity” and “intent” as the exceptions de jure in its attempt to offer this unrelated offense to the jury.

Identity
Regarding the identity exception, the Texas Court of Criminal Appeals has explained that

When the extraneous offense is introduced to prove identity, the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005). As an illustration of this principle, think about the movie Home Alone, in which the burglars always left the water on in the home they burglarized in an attempts to be known as “The Wet Bandits.” In this case, however, as the court points out,

the only similarities between the pawn shop murder and the Kroger robbery are that both offenses were armed robberies committed with a .45 caliber pistol. We see no similarities that indicate a distinctive and idiosyncratic manner of committing criminal acts.

Intent
The State argued that the Kroger robbery, in which no one resisted or was injured, shows that Jackson intended to kill the victim in the pawn shop robbery because he resisted. Jackson argued, however, that he did not contest the issue of intent. Citing the CCA case of Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996)(op. on reh’g), the Court explained:

When the State’s evidence on intent is uncontradicted by the defendant or not undermined by cross-examination of the State’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy. Because Jackson never contested intent, the extraneous-offense evidence was inadmissible under Rule 404.

Harm
In holding that the trial court abused its discretion by allowing the State to introduce the Kroger robbery, the Court next had to consider whether the error resulted in harm. While noting the “substantial evidence of guilt” in the case, the Court stressed that there are other factors it must consider when determining harm, including “the character of the alleged error and how it might be considered in connection with other evidence in the case.” The Court further stated:

Extraneous-offense evidence is inherently prejudicial, tends to confuse the issues, and forces the accused to defend himseld against charge not part of the present case against him. By its very nature, an improperly admitted extraneous offense tends to be harmful.

Holding that the evidence of the Kroger robbery may have had a profound effect on the jury’s decision, the Court concluded that it was reversible error.

Capital murder conviction and LWOP sentence reversed and remanded.  Read the opinion HERE.

Spread 'Em!

Anonymous informant calls Houston County police officer with a tip that the suspect is traveling toward Houston County with drugs concealed in his anus.  Suspect is located and arrested, albeit on child support warrants.  Now that he is under arrest, may he be subjected to a visual body cavity search for drugs?

The Supreme Court has instructed that a "search incident to arrest authorizes the police to conduct 'a full search of the person.'"  U.S. v. Robinson, 414 U.S. 218 (1973).  However, the Texas Court of Criminal Appeals has noted that visual body cavity searches are among the most intrusive of searches and the Supreme Court did not hold that all searches incident to arret are per se reasonable.  What to do?  Ah, yes, bring in the balancing test.  The CCA has provided, based in its interpretation of Supreme Court precedent, that the following four factors are to be considered in determining the reasonableness of a search:

1. The scope of the particular intrusion;
2. The manner in which it is conducted;
3. The justification for initiating it; and
4. The place in which it is conducted.

McGee v. State, 105 S.W.3d 609.  But really, the entire balancing test hinges on #3, the justification for the search.  In our anonymous tip case, the police needed more than just the tip in order to conduct a visual body cavity search.  Incidentally, they had more because this particular suspect was already on their radar for drug distribution.  That, coupled with the anonymous tip, concluded the 6th District Court of Appeals (Texarkana), was enough to justify the intrusive search. 

I left a lot of good stuff out, but you can read more about this case HERE. 

"Community Caretaker" Makes Unlawful DWI Arrest

In Cherokee County, Texas, a small white pickup truck "was not seen violating any traffic law or exhibiting any signs that the driver was intoxicated or otherwise in distress, when [a police officer] saw, followed, and ultimately stopped it."  According to the officer, he stopped the vehicle "to check his current state, his welfare, [and] to make sure he is okay."  After all, he had recently received a call reporting an elderly driver passed out behind the wheel of a similar vehicle in a neighboring part of town.  In checking the driver's welfare, wouldn't you know it, the officer observed signs of intoxication and arrested the driver.

At the driver's subsequent trial for DWI, he moved to suppress the evidence obtained at the stop, complaining that the officer lacked probable cause or reasonable suspicion.  As the 6th District Court of Appeals (Texarkana) explained, however, probable cause may not have been required if the officer was exercising a "community caretaker" function.

In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed.  As part of an officer’s duty to serve and protect, an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  This exception to the warrant requirement has narrow applicability.  The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement.

The problem in this case, as the Court points out, was that the driver did not objectively appear to be in distress, nor did he objectively appear to pose a danger to himself or others.  Accordingly, the Court held that the narrow community caretaker exception did not justify the officer's stop and thus, the driver's Fourth Amendment rights were violated.

See Travis v. State

Who Let the Dogs Out?

Contrary to the ruling of a trial judge in Fannin County, Section 822.005(a)(1) of the Texas Health and Safety Code, which makes it a crime to fail to secure your dog, is not unconstitutionally vague, says the 6th District Court of Appeals (Texarkana).

In State v. Taylor, the defendant (dog owner) moved to quash the indictment against him, which alleged that he was criminally negligent in failing to secure his dog when it attacked a woman, arguing that the statute was unconstitutional for failing to require a culpable mental state.  Not so says the appellate court.  Beginning its analysis with the plain reading of the statute, the court pointed out that the law clearly requires the dog owner to act with "criminal negligence" as defined by Section 6.03 of the Texas Penal Code. 

Section 822.005(a) requires a dog owner to secure its dog under certain circumstances.  This duty also exists in the common law, as a consequence of the general duty of a dog owner to exercise reasonable care to avoid foreseeable injury to others.  However, it is only when a dog owner acts with criminal negligence in failing to secure his or her dog, and the dog causes serious bodily injury to another (while not on the owner’s property) can the owner be called to account under Section 822.005(a) of the Texas Health & Safety Code.

Moreover, the Court emphasized, the duty to act does not apply to "every living person in the universe" (like Seinfeld's Good Samaritan Law);  it only applies to the dog owner.  Accordingly, the Court reversed the order quashing the indictment and remanded the case to the trial court.

Please Drive Safely While Evading Arrest

Section 12.35 of the Texas Penal Code allows a defendant to be punished for a 3rd degree felony if, while in the commission of a state jail felony, he/she uses or exhibits a deadly weapon.

But what if the deadly weapon is part of the underlying offense?  For instance, what if a person evades arrest by fleeing in a vehicle?  Evading arrest is a crime under Section 38.04 of the Texas Penal Code and when someone uses a vehicle to evade arrest, it is a state jail felony.  Can that crime then be punishable as a 3rd degree felony under the Section 12.35 enhancement provision simply because the actor uses a deadly weapon (a vehicle)?

While it may seem illogical to permit a deadly weapon enhancement where the use of the instrumentality characterized as a deadly weapon is an essential element of the underlying offense, Texas allows it.  I know...I couldn't believe it when I read it either.  Did the legislature truly intend that the offense of evading arrest by using a vehicle be enhanced further for proof that the actor used a vehicle?  I would hope not.  Although, the Texas Court of Criminal Appeals has not yet weighed-in on this issue, the 2nd District Court of Appeals (Fort Worth) and, most recently, the 6th District Court of Appeals (Texarkana), have explained:

Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced.

State v. Brown, ___ S.W.3d ___ (Tex. App.--Texarkana 2010).

This holding, to me, was a bit discouraging.  It essentially means that any offense wherein use of a motor vehicle is a necessary element (e.g. DWI) may be enhanced because the actor used a "vehicle."  I could understand enhancing the punishment if the actor used a different weapon, such as a gun or a knife to evade arrest, but a vehicle? C'mon!  Thankfully, Justice Carter's concurring opinion clarified the issue and tempered the majority opinion with some logical reasoning.  He stated:

The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. TEX. PENAL CODE ANN. § 38.04(a), (b)(1).  Theoretically a motor vehicle may be used in many ways—even if it is driven in a safe, uneventful manner, the offense would be a state jail felony.  The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof.  Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury.  TEX. PENAL CODE ANN. § 1.07(17) (Vernon Supp. 2009).  As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref‘d).

At least we know that enhancement isn't automatic - although I still don't think the hurdle is too high for the State to jump in cases such as these.  Is speeding enough?  What about swerving?  Hopefully the CCA will take this up soon and provide some clarity.  Until then, remember,

If you are going to evade arrest in a vehicle, drive carefully, within the speed limit, and obey all traffic regulations.