Coaching a Child Victim

Texas courts have routinely held that an expert witness, such as a child psychologist, may not offer an opinion about the truth of a certain child victim's specific allegations or about the truth of child victim allegations in general. But they haven't shut that door completely.

A couple of weeks ago, the 7th District Court of Appeals (Amarillo) reaffirmed the legal principle that:

Expert testimony that a child did not exhibit indications of coaching or manipulation [does] not to constitute an opinion on the child's truthfulness. 

In Cantu v. State, one of the defense theories was that the child victim had been coached by her mother to make false allegations against Appellant. To counter this theory, the State brought an experienced child interviewer from the Advocacy Center to testify that in her expert opinion, the child victim in this case did not exhibit any "red flags" that would indicate that she had been coached or manipulated. The State was careful not to elicit testimony that the victim was being truthful and thus, the conviction was affirmed on appeal.

To me, this is still an area ripe for objections at trial and a special inclusion in the jury charge. You may get a judge that will exclude it. Okay, probably not, but it's worth a shot. While most lawyers can see the technical difference between an opinion on truthfulness and an opinion on coaching, many jurors will not. 

You can read the opinion here.

"Use Caution When Calling Someone Ineffective"

Last week, Justice Quinn of the 7th District Court of Appeals (Amarillo) very thinly masked his disgust in a three-page opinion (designated for publication) aimed at an appellant and his attorney who claimed that the trial defense counsel had been ineffectice.  A shot across the bow to other would-be appellate attorneys who might be considering an ineffective assistance challenge, Justice Quinn warns "It ain't a game folks; it's real lives we are dealing with."

The opinion (HERE) is short enough to read in about two minutes so I won't reprint much of it, but here is, IMO, the best paragraph:

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done. Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact. Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective. Those before us today should heed that admonishment when next they think about invoking the theory. Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are dealing with.

Custodial Interrogation or Friendly Chat

As I wait on more slip opinions from the Court of Criminal Appeals, I’ve been randomly sifting through Courts of Appeals opinions. Today, the 7th District Court of Appeals (Amarillo) released a rather concise opinion in an aggravated sexual assault case. It’s worth an equally concise post.

In McGee v. State, appellant complained, inter alia, that his confession should have been suppressed because he was not given Miranda warning prior to issuing his confession to the police. Unconvinced, the Court of Appeals noted that appellant signed a written document containing Miranda warnings before he began speaking with police officers. The Court went on to state that “even if the warnings afforded appellant were somehow deficient, the record contained sufficient factual basis upon which the trial court could have reasonably found that appellant was not in custody at the time.”

Here are the facts to the Court highlighted to demonstrate that appellant was not “in custody” when he gave his confession:

1) Appellant transported himself to the police station to undergo a polygraph examination and questioning;
2) Questioning occurred in a rather large 15’ by 15’ room;
3) He was never told he was under arrest;
4) He was told he was free to go at any time;
5) No one threatened him;
6) No one restrained him;
7) Those asking the questions and administering the polygraph would have stopped if appellant indicated that he wanted to leave;
8) Appellant was at the station for approximately 2.5 hours before confessing;
9) He had no marks on him to indicate that he underwent any kind of physical abuse;
10) He not only was asked if he wanted to take a break or use the bathroom but also was told that he did not have to be there before the examination began;
11) He left that station after the interview; and
12) Nothing indicates that appellant ever attempted to leave, stop the questioning, take a break, or the like.

It seems to me like the Court if stretching a bit with some of those justifications. With an apparent affinity toward list-making, the Court went on to outline scenarios that would lead them to believe a person was in “custody:”

1) If appellant was physically deprived of his freedom in any significant way;
2) If someone told him he could not leave;
3) If the officers created an environment that would lead a reasonable person to believe his freedom of movement was significantly restricted; or
4) If there existed probable cause to arrest appellant and the officers told him he was not free to leave.

The Court explained, “[h]ad any of those four scenarios arose then appellant would have been in custody, but the evidence before us allowed the trial court of legitimately conclude otherwise.”

Seems simple enough. The problem is with the trial court interpretation of those four maxims.

Do You Consent? Do You Consent? Do You Consent?

Today, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver's side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the "totality of the circumstances" and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.

Compliance by Taser

The Texas Court of Criminal Appeals recently heard a case involving excessive force by police.

In, Hereford v. State the ultimate issue presented to the CCA was whether forced used by officers to recover drugs from a defendant was excessive and unreasonable. The court held that it was.

The appellant in Hereford pulled into a parking lot and got out of his car. An officer observed him and recognized him as someone he had dealt with in the past. The officer knew Hereford had outstanding warrants. The officer conducted a pat down search and arrested him for the warrants. After appellant was arrested, the officer searched his vehicle. When the officer did not find any narcotics, he called a K9 unit whose dog alerted on the car.  Despite the alert, officers again failed to find any narcotics. When the officer returned to his patrol unit, appellant had his head down and was chewing on something. The officer commanded appellant to spit it out but he refused. The officer and two others then removed appellant from the patrol unit and tased him on the leg. The officer who made initial contact with appellant then grabbed him around the throat and tried to force him to spit out the substance. The officers then ceased trying to force the appellant to spit out the substance. After discussing their options for fifteen to twenty minutes, the officers decided to take the appellant to the hospital.

At the hospital, the officers appellant over to another officer working off-duty at the hospital. Appellant still had the substance in his mouth.  The hospital tried to get him to release it by using ammonia capsules. This did not work. The off-duty officer then took appellant into an examining room and began to tase him repeatedly – three times in the upper inner thigh (the groin) and once in the right forearm. When he was being tased, appellant's mouth would open involuntarily.  While appellant's mouth was open (during the tasing of his groin) the officer was able to get the substance out of his mouth.  It turned out to be a plastic baggie of crack cocaine.

The issue presented for the CCA was whether, under the Fourth Amendment, the manner in which the evidence that was seized was reasonable. The court used the factors found in Winston v. Lee, 470 U.S. 753 (1985) to balance the intrusion to the appellant’s personal interests, the societal need for effective law enforcement, and the state’s need for evidence. Those factors include whether the police conduct:

1) threatened the suspect’s health or safety;
2) conformed to accepted medical practices;
3) was performed by a trained professional;
4) arose from the existence of probable cause to believe the suspect had evidence of a crime;
5) unduly intruded upon the suspect’s dignity interests in personal privacy; and
6) was a commonplace procedure to which individuals are often subjected.

Balancing those interests, the court found that the off-duty officer’s actions were unreasonable and violated appellant's Fourth Amendment prohibition against unreasonable searches and seizures.

The CA, however, made it a point to highlight that this ruling was not to be construed to imply that the use of a Taser in these types of instances is per se unreasonable. The Court highlighted Ellis v. Columbus City Police Dep’t, No. 1:07CV123-A-A, 2009 U.S. Dist. LEXIS 95821 (N.D.Miss. September 15, 2009), where almost the same set of circumstances happened.  In that case though, the suspect had lunged at officers and was openly chewing a plastic bag of cocaine. The Court differentiated that case from this one by explaining that in Ellis, the officers stopped after tasing appellant several times and the tasing occurred during the arrest (not long after and by another officer).

Presiding Judge Keller dissented without opinion.

Courts Should Not Apply Strict Rules of Grammar and Syntax When Reviewing Search Warrant Affidavits

“On Sunday, he advised me that he had been in Russia” is not the same as “He advised me that he had been in Russia on Sunday.”

The Court of Criminal Appeals considered a similar ambiguity in an Affidavit for a search warrant in State v. McClain. The Affiant stated in the affidavit, “In the past 72 hours, a confidential informant advised” the defendant had been seen in possession of Meth. Without more, this purports to state that the informant provided the information in the past 72 hours and DOES NOT state when the informant actually observed the behavior – a critical piece of information, indeed.

The trial court found the affidavit deficient and suppressed the evidence that was seized during the search. The 7th District Court of Appeals (Amarillo) affirmed. The CCA now reversed the Court of Appeals, holding that the search warrant based on this affidavit was proper.

The CCA cautions trial courts not to view such affidavits in a “hypertechnical” manner.

Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrant, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches. One incentive is a less-strict standard for reviewing the propriety of a search conducted pursuant to a warrant. In this situation, courts must give great deference to the magistrate’s probable-cause determination.

The CCA, with the exception of Judge Johnson who dissented, held that the lower courts violated the prohibition on hypertechnical review of warrant affidavits when it strictly applied rules of grammar and syntax in its analysis. The CCA further held:

Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Grand Jury Errors Go to the Charging Decision, Not the Conviction

During the grand jury hearing for would-be defendant Ronnie Duane Mason, two police officers questioned a witness on the record, despite the fact that article 20.04 of the Texas Code of Criminal Procedure provides that only the attorney representing the State or a grand juror may question a witness. Mason was later charged with and convicted of capital murder and sentenced to life imprisonment.

On appeal, Mason argues that by allowing unauthorized persons to question a witness during grand jury proceedings, his substantial rights were violated. See Texas Rule of Appellate Procedure 44.2(b). The 7th District Court of Appeals (Amarillo) reversed the trial court ruling after concluding that the State’s unauthorized questioning caused harmful error. The Court of Criminal Appeals now reverses the 7th Court holding that the error did not affect appellant’s substantial rights.

The primary issue on appeal was whether the court must decide that the error affected the charging decision or the ultimate conviction/sentence. The State was arguing that the violation must affect the conviction and sentence, and conversely, appellant argued that it need only affect the charging decision.  The 7th Court agreed with appellant that a grand jury error must be analyzed for its effect on the charging decision. The CCA, borrowing Justice O’Connor’s reasoning from her concurring opinion in U.S. v. Mechanik, 475 U.S. 66 (1986), followed in line with the 7th Court, holding:

[A]ddressing a grand jury statutory violation, the proper subject of a harm analysis is the product of those proceedings; the charging decision.

The CCA did not concur, however, with the 7th Court harmless error analysis, stating:

We agree with the analytical focus chosen by the court of appeals, but we do not agree with its conclusion that the State’s actions caused harmful error.

Judge Womack concurred and would follow the Supreme Court majority opinion in Mechanik.

Takeway: A defendant/appellant must show that the grand jury error affected the charging decision in order to demonstrate a violation of his/her substantial rights. Great, but how do you do that with the one-sided transcript of a grand jury proceeding? Good luck.

Prison Mailbox Rule

I can hear the conversation now:

Inmate talking to prison guard: Okay, here is my motion for a new trial.  It is due to the court in two days.  I am representing myself and I think I have a good argument that will help me get out of here.  Please make sure that this envelope gets put in the outgoing mail today.  Thanks Bob.

Prison Guard to Inmate:  (Sarcastically) Sure James, I'll bet you have a great argument.  Are gonna say that the cocaine fairy came down from her white powdery cloud and hid her excess product under your pillow?  I'll get this envelope over to the outgoing mail right away.  I'll consider it my most important task of the day.

Of course, the motion does not make it to the court on time and the prisoner's motion is denied as untimely filed.  It wasn't his fault.  What more could he have done?  This scenario begs the question:

Does the "mailbox rule" apply to pro se prisoners such that a document is deemed timely filed when placed in the hands of prison authorities? The Texas Court of Criminal Appeals says... 
IT DOES NOW!

In order to appeal a criminal conviction in Texas a person must file a notice of appeal with the court within 30 days from the day on which the sentenced is imposed or within 90 days from the day on which the sentence is imposed, if he/she files a timely (within 30 days) motion for new trial.  See Tex. R. App. P. 26.2(a).  To file a motion for new trial or notice of appeal by mail, the Texas mailbox rule requires that the motion/notice arrive within 10 days after the filing deadline and have been deposited in the mail the last day before the filing.  How does this rule apply to prisoners that represent themselves on appeal?

In Campbell v. State, the Texas Court of Criminal Appeals considered this as an issue of first impression.  In Campbell, the appellant argued:

that pro se prisoners occupy a distinct niche in the appellate universe when it comes to the crucial act of timely filing a document.  He notes that such a litigant cannot select by which method he chooses to accomplish filing.  He argues that the pro se litigant is condemned to place his trust in prison authorities to deliver pleadings to the proper filing agency and secure the necessary stamp of receipt.

Following the U.S. Supreme Court and Texas Supreme Court cases that have recognized a prison mailbox rule, the CCA held that

Like our sister courts, we decline to penalize a pro se inmate who timely delivers a document to the prison mailbox.

Borrowing its reasoning from the Supreme Court opinion in Houston v. Lack, 487 U.S. 266 (1988), the court recognized:

Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped 'filed' or to establish the date on which the court recieved the notice...Unskilled in law, unaided by counsel, and unable to leave the prison, [the pro se prisoner's] control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access - the prison authorities.  We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.

Attention TX Drivers: Your Front License Plate Must Be Displayed...

"...at the foremost area of your car, most commonly the front bumper."

The Texas Court of Criminal Appeals seized the opportunity in Spence v. State to settle a split between the Texas Courts of Appeals regarding the proper placement of the front license plate.  The Amarillo Court of Appeals (7th), in Spence, had previously determined that the license plate was required to be displayed on the front bumper (the foremost area of the vehicle).  However, the Austin Court of Appeals (3rd), in State v. Losoya, 128 S.W. 3d 413 (Tex. App.--Austin 2004, pet. ref'd), held that Texas Transportation Code did not require the license plate on the font bumper.

Well, now it is settled.  The high court has spoken.  For those Nascar fans out there, go take down your Dale Earnhardt or you confederate flag decorative plate before you get a ticket! 

Attention Texas Drivers:  Your front license plate MUST be displayed on the foremost part of your vehicle, (i.e. Your front bumper).

Judge Meyers dissented, pointing out that the CCA is applying the Code inconsistently by requiring the front license plate to be displayed on the front bumper, but allowing the rear license plate to be displayed on the truck or back hatch of the vehicle and not on the rear bumper.  She "would construe the front and rear to mean any surface facing that direction."

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

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

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

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

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

"Come Over Here and Talk to Me"

Crain v. State - (Tex. Crim. App.) June 30, 2010.

Police officer drives up next to a "suspicious-looking" pedestrian and says "Come over here and talk to me."  At trial, of course, the officer testifies that:

had the [suspect] refused to talk to him, he would have let the [suspect] go, as he had not observed the [suspect] do anything that could be construed as criminal activity.

When the suspect "voluntarily" spoke with the officers, they smelled an odor of recently-smoked marijuana on the him.  Believing the suspect to be in possession of marijuana, the officer placed the suspect's hands behind his back and patted him down.  Note:  The suspect was not under arrest yet.  During the pat-down search, the officers discovered a firearm tucked into the suspect's belt, but no drugs or other contraband.

At trial, the defendant moved to suppress the firearm, arguing that the interaction with the police officers was an unlawful investigative detention for which the officer did not have reasonable suspicion.  The trial court found the interaction to be a consensual encounter that did not require any level of suspicion and denied the suppression motion.  Appellant was convicted of unlawful possession of a firearm.

The 7th District Court of Appeals (Amarillo), affirmed, holding that the officer's conduct would not have communicated to a reasonable person that the appellant was not free to decline the officer's request and terminate the encounter.  Chief Justice Quinn dissented, concluding that, under the circumstances, the stop was a detention rather than a mere encounter.

In a 6-3 opinion, the CCA reversed the 7th Court.  Citing the dissent from the lower court, the CCA Judge Price emphasized:

As stated in Justice Quinn’s dissent, “[m]issing from the phrase ‘come over here and talk to me’ are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]”

Judge Cochran submitted a concurring opinion, in which she observed:

Officer Griffin testified that the exact words he used in calling to appellant were, “Come over here and talk to me.” That is a command. It is an imperative sentence.

Judges Keller and Keasler each filed dissenting opinions.  Both would have classified the interaction as a consensual encounter rather than an investigative detention.

A few months ago I posted about consensual police encounters HERE.  This case reinforces my prior opinion that "there is no such thing as a consensual police encounter."

Cutting Out the Middle Man - Manufacture and Possession Combined

Pursuant to a State's petition for discretionary review of the holding of the 7th District Court of Appeals (Amarillo) in Weinn v. State, the Texas Court of Criminal Appeals was presented the following issues:

1. Can a defendant be convicted and punished for both Manufacture and the subsequent Possession with Intent to Deliver of the same quantity of controlled substances? and
2. Are the offenses of Manufacturing a Controlled Substance and Possession with Intent to Deliver a Controlled Substance the same for double jeopardy purposes, even though the separate offenses are meant to punish separate dangers?

In a shocking 6-3 decision, the CCA held:

the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense.  Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy.

Presiding Judge Keller and Judge Keasler filed dissenting opinions and were joined by Judge Hervey.  Presiding Judge Keller wrote:

the big problem with the [majority's holding] is that it means that a person who manufactures a
controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.

Perhaps Judge Keller failed to read the entire majority opinion, which clearly explained on the final page that

our holding [does] not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment.

This appears to be a well-reasoned holding by the CCA.  If you really think about it, a person that manufactures drugs is obviously going to, at the same time, possess those drugs, and most likely will also have the intent to sell the drugs.  So long as the State is free to charge to subsequent delivery as a separate and distinct offense, I don't really see that the State loses anything (other than a stacked charge sheet) from this holding.  It should actually make the entire process simpler, as the State will be able to charge one or the other (manufacture or possession with intent to deliver), but not both.

Keeping a Promise

I'm up to my ears in published cases from the various Texas Courts of Appeals.  Maybe I never should have promised to post about every published case.  Or maybe I shouldn't have taken such a long break when baby #2 came along last month.  Regardless, I promised and now I need to do a bit of housecleaning in order to keep pace with all of the recent published opinions.  Here are a few from last week:

Wilson v. State, Tex. Crim. App. (Delivered  June 9, 2010) - CCA upheld Court of Appeals decision even though the Court of Appeals based its holding on a Penal Code section under which Appellant did not preserve error, but was closely related to the section for which he did preserve error.  To remand the case and end up with the same result, would have been an exercise in futility, so it appears the Court based its ruling more on judicial economy than law.

Rivera v. State, 7th Dist - Amarillo (Delivered June 8, 2010) - Explaining that Appellant had the burden to prove his counsel was ineffective, the Court held that trial defense counsel is not required to make arrangements for the defendant to view and/or listen to electronically recorded evidence prior to his guilty plea.  A good quote from this Per Curiam opinion:

Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

Griffith v. State, 11th Dist - Eastland (Delivered June 10, 2010) - Court affirmed manslaughter conviction.  Appellant acted recklessly when he drove his vehicle while intoxicated.  A defendant need not be aware of the specific risk of another's death to be guilty of manslaughter.

Steadman v. State, 11th Dist - Eastland (Delivered June 10, 2010) - The Court upheld the ruling of the trial court allowing a police officer to testify that the defendant "neither admitted nor denied" that he committed the offense during pre-arrest/pre-interrogation interview with police.  The Court had to stretch for this opinion, but here's what it came up with:

We hold...that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Steadman‟s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant‟s post-arrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues.

Okay, there's a few cases.  I may have to do a couple more posts like this one to catch up.  Please bear with me.

Retaliation and Assault

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

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


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


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


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

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

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

No Immunity for Child Protection Vigilantes

In classic western movies, we praise the vigilante who takes the law into his own hands.  While this may be true for the big screen - not so for Texas defendants Larry Scroggs and Alana Gariepy.

After realizing that a bottle of Oxycontin had been taken from their home, Scroggs and Gariepy broke into the home of Monique Graves as they believed she had stolen it.  Graves was pregnant and nearing the end of her term.  While Scroggs stood by the door, Gariepy pushed Graves onto the bed, grabbed her by the hair, and began slapping her.  Gariepy then escorted Graves outside, grabbed her by the throat and forced her into the backseat of Scroggs' car.  Scroggs then pointed a gun toward the backseat where Graves was seated.

In their subsequent joint prosecution for, inter alia, aggravated kidnapping and burglary of a habitation, Scroggs and Gariepy raised a creative defense:

[They] argue that Graves was “endangering and abusing or neglecting her unborn child” by consuming Oxycontin while pregnant. Rather than immediately report this belief to CPS or to a law enforcement agency, they decided to compel a blood test of Graves and then decide whether to report abuse or neglect. According to appellants, Texas Family Code § 261.1066 grants them immunity from the conduct giving rise to the indicted offenses because they were reporting and assisting in the investigation of a report of alleged child abuse or neglect.

While the Court may have granted style points for this argument, it held that "Appellants' contentions are without merit."  The Court further stated:

     Appellants’ assertions of immunity are defeated by the plain language of the statutes to which they refer.8 Reports of suspected child abuse or neglect under subchapter B of chapter 261 of the Family Code are made to law enforcement or other designated state agencies. See Tex. Fam. Code Ann. § 261.101(a) (Vernon 2008) (requiring immediate report “as provided by this subchapter”); § 261.103 (with exceptions not relevant here, “a report shall be made to” listed agencies).  Investigations of such reports, under subchapter D of chapter 261, are conducted by designated state agencies. See Tex. Fam. Code Ann. § 261.301(a) (Vernon 2008) (requiring investigation of reports by agency with assistance from law enforcement).  

     Scroggs asserts a “report” was made when another person, apparently Gariepy, related facts to him creating in his mind a suspicion of abuse or neglect. Thus appellants’ subsequent conduct toward Graves was an “investigation” of the report of Gariepy. But, as noted, a report under chapter 261 is made to an agency designated by § 261.103, not to a private individual. The investigation of a report under chapter 261 follows the report, it does not precede the report. And reports are investigated under chapter 261 by agencies, not private individuals.

Good try folks.  Some fancy "lawyering" no doubt, but the Court is not on board (nor is the law).

See the full opinion in Scroggs/Gariepy v. State, HERE.

Who Says Plea Negotiations Aren't Admissible?

Bowley v. State (CCA Opinion HERE)

It was a DWI case (enhanced to felony-level by 2 previous DWI convictions).  The defendant took the stand and explained to the jury that he pled guilty to the 2 previous cases, because he was actually guilty.  Then, on cross-examination, this was the exchange between the defendant and the prosecutor:

Q:  Okay. [Defense counsel] said that you pled guilty to all those up there because you were; is that right?
A: Yes, sir, that is correct.
Q:  You're not pleading guilty here today because you're not guilty; is that right?
A:  Right. That is correct.
Q:  Could it be that it's because we couldn't agree on a plea agreement that you preferred?

Hmm...I seem to remember a certain rule of evidence...ah, yes, Rule 410, which prohibits the admission of pleas negotiations.  The underlying rationale behind Rule 410 is to promote "free and frank" plea negotiations.  Additionally, if we face the facts, not all defendants that plead guilty are actually guilty.  Sometimes it's just easier to plead than to risk being convicted of a greater crime or awarded a stiffer sentence.

Thankfully, the Defense counsel sprung to action:

DC: Judge, I guess I will have to object on that.  That's-
Court: Sustained.
DC:  Judge, as well, let me go ahead and ask that this Court instruct the jury not to consider that in any type of deliberation, this it's simply just not a proper area for a trial, Judge.
Court:  No instruction will be given.
DC:  Judge, I guess to finish that and perfect my objection, I will ask for a mistrial.
Court:  Denied.

The defendant was later convicted of felony DWI and was sentenced to 30 years confinement as a habitual felony offender.

On direct appeal, the 7th District Court of Appeals (Amarillo) concluded that the judge erred by not giving the instruction to disregard the prosecutor's question about the plea negotiations and reversed the conviction.  The 7th Court's reasoning was that under Rule 403, the question was "higly misleading and prejudicial" and that there was a "grave risk" that the jury would make the "common sense" inference that because the defendant has negotiated for a plea, he had committed the crime.

Yesterday, however, the Court of Criminal Appeals (in a sharply divided 5-4 decision) reversed the 7th Court's decision, stating

We hold that no instruction was required because [the defendant's] testimony opened the door to the prosecutor's question.  A party who opens the door to inadmissible evidence risks the adverse consequences of having it admitted.  It was admissible for the prosecutor to cross-examine [the defendant] by questioning the circumstances surrounding his plea in this case to establish an alternatie motive for pleading not guilty - that it was the result of failed plea negotiations.

The holding is simply shocking - especially when the trial court excluded the evidence!  Although it was not clear on the appellate record whether the trial court excluded the evidence under a Rule 403 or Rule 410 analysis, if either is within the so-called "zone of reasonable disagreement" the appellate court should have upheld the trial court's ruling excluding the evidence and required a curative instruction for the jury to disregard the question.

Perhaps Judge Price, in one of the dissenting opinions got it right:

But even if the majority were right with respect to the Rule 403 issue, it grievously errs simply to affirm the judgment of the trial court without further ado. If the court of appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was within its discretion. Because the court of appeals has never resolved this issue, the correct disposition at this juncture would be to remand the cause to the court of appeals so that it may do so. I must therefore dissent on the additional basis that the Court does not remand the cause for further proceedings in the court of appeals.  Ultimately, I rue that we ever, in our capacity as a discretionary review court, should have allowed ourselves to get embroiled in a case like this in the first place.

At least for now, the takeway from this case, is don't introduce prior guilty pleas of your client in the hope that the jury might infer that because he isn't pleading guilty to the current charge, he is actually not guilty. Wow, a lot of double negative in that sentence, but you understand what I mean.

Two other dissenting opinions were also submitted by Judges Johnson and Holcomb.

"Got Anything Under that Pantleg?" Defendant Required to Show Identifying Tattoos to Jury

Since 1960, the Texas Court of Criminal Appeals has repeatedly explained that a defendant may be compelled to diclose identifying markers about himself to the jury, such as eye color, hair color, and the sound of his voice. See Whitlock v. State, 170 Tex. Crim. 153 (1960). Moreover, it has been repeatedly held that the display of the defendant’s tattoos to the jury is likewise not a violation of the right against self-incrimination.

Unfortunately for criminal law practicioners, the Court has provided little or no explanation on the issue.  See Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003).  Most recently, in Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007), the Court stated,

"the tattoos were admissible to prove the 'criminal street gang' element of the offense and their probative value was not outweighed by the danger of unfair prejudice. Also, requiring the appellant to display the tattoos did not violate the Fifth Amendment."

Again, no real analysis or explanation - just a conclusion (one paragraph in a 17-page opinion).

Following the Court's precedent that a defendant may be compelled to disclose his tatoos to the jury, the 7th District Court of Appeals (Amarillo) recently reaffirmed the issue in Saucedo v. State. Kudos to Justice Quinn, however, because, unlike prior Texas appellate court jurists who have considered the issue, he at least provides a nugget of analysis on the issue:

Body art consisting of dragons, skulls, symbols, flowers, or the like are also communicative in nature. They too convey a message of some idea, belief, or expression selected by the person wearing it. But, in each case the message is pre-existing and unlikely to incriminate in the same sense as compelling a confession. And, until the right against self-incrimination is said to insulate a defendant from showing the color of his eyes, providing a writing sample, or even displaying tattoos in general, it did not prevent the trial court from requiring appellant to raise a pant leg to show the jury the name stenciled on his leg. Simply put, the trial court did not abuse its discretion.

Confrontation of Child Victim-Witnesses - A Constitutional Alternative?

So we all know that the 6th Amendment guarantees the accused, in every criminal prosecution, the right to be "confronted with the witnesses against him," and to have "meaningful and effective cross-examination."  Building on this principle, the Supreme Court more recently emphasized in Crawford that "testimonial statements" of a witness who did not appear at trial should NOT be admitted unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination.  541 U.S. 36 (2004).

But do the prohibitions of Crawford apply equally to the testimony of child victims in Texas?  Well, it's hard to say.  The short answer is Yes, but there are exceptions provided for in Article 38.071 of the Texas Code of Criminal Procedure.  These exceptions are an effort to balance the defendant's right to constitutionally-required confrontation with the State's policy of protecting child witnesses in sexual assault cases (for instance) from further potential trauma that could be wrought by testifying in open court and coming face to face with the defendant.

In summary, Art. 38.071, which was drafted prior to Crawford, provides child victims (in certain cases) two alternatives to courtroom testimony (if the court makes a finding that they are "unavailable") by allowing them to testify:

• Pursuant to Section 2(b) - to a "neutral" third party (usually a child psychologist or social worker) outside the presence of a courtroom, the defendant, or the attorneys involved, so long as the testimony is videotaped.  The defendant is then allowed to submit interrogatories to be asked the child victim in the same manner as the previously recorded testimony.  Neither the defendant nor his attorney is allowed to be present when the questions are asked.  

     OR

• Pursuant to Section 3(a) - in a room other than the courtroom (outside the presence of the defendant) through the use of a closed-circuit television.

While the Supreme Court has recognized that the constitution does not guarantee the absolute right to face-to-face confrontation (see Maryland v. Craig, 497 U.S. 836 (1990)), I have to wonder if this "interrogatory"  alternative (Section 2(b) above) to cross-examination is what the Supreme Court meant by "meaningful and effective cross-examination."  While it is a way of recording testimony, it isn't really cross-examination at all.

The Texas Court of Criminal Appeals has not yet considered this issue.  The 2nd District Court of Appeals (Fort Worth) considered the issue in Rangel v. State, 22 S.W.3d 523, wherein it held that (1) a child victim's videotaped statement was "testimonial" and therefore governed by Crawford, and (2) by providing a defendant with the opportunity to submit written questions, section 2(b) of article 38.071 (i.e. the interrogatory section) serves as a constitutionally sufficient alternative to face-to-face confrontation of witnesses.  The CCA initially granted discretionary review to consider the constitutionality of Article 38.071, section 2(b), but later dismissed as improvidently granted.

The 7th District Court of Appeals (Amarillo) released an opinion last week consistent with the 2nd Court's holding in Rangel upholding the constitutionality of article 38.071, section 2(b).  See Coronado v. State HERE.  Maybe this will give the CCA occasion to consider this issue?

State Doesn't Follow the Rules - Juvenile Case Reversed and Remanded

Last month I wrote How Does a Juvenile Get Tried as an Adult in Texas, outlining the requirements under the Texas Family Code whereby a juvenile is transferred to district court to be tried as an adult.

The requirements to transfer a juvenile case to district court are specific and the State must follow them.  See what happens the State doesn't follow those requirements HERE.

Reasonable Suspicion Standard is Alive and Well in the 7th Court of Appeals - Whew!

The 7th District Court of Appeals just reversed and remanded the case of Gonzalez-Gilando v. State, NO. 07-09-0290-CR, because the officers lacked reasonable suspicion to make the stop (wherein the drugs were discovered) and it is easy to see why.

The troopers testified that they grew suspicious because:

1. The vehicle was clean (lacked road grime);
2. The young occupants did not "fit" the year and model of the vehicle ('99 Lumina);
3. The occupants should have been in a sportier car;
4. Both occupants looked away as the vehicles met and passed;
5. The occupants turned their hats around after the cars passed;
6. The car slowed to almost a complete stop at a blinking caution light adjacent to an intersection;
7. The driver drove within the speed limit.

Can you believe that!  That was the best "reasonable suspicion" that they could come up with!  You would think that with time to prepare, they could have come up with something better than that!

The Court summed it up best:

It is not a crime in this State to drive a clean car, look away from passing police officers, drive a vehicle of one's choice, obey traffic warnings, and abide by posted speed limits.