Soliciting a Criminal Defense Case

Let it be known, I would like to defend THIS GUY, if he is indicted (which I doubt will happen in Texas).

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.

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Closing the Loophole on Outcry Witnesses

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

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

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

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

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

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

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.

CCA Finds Constitutional Ex Post Facto Violation That Was Completely Missed at the Trial Level

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

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

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

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

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

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

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

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

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

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

Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

80 Percent of Child Victims Recant Sexual Assault If Unsupported By Mother

Chavez v. State

In this case, a child (12 year-old girl) and her mother initially reported (and testified at a preliminary hearing or in a recorded interview) that Appellant sexually assaulted the child on numerous occasions.  Appellant also admitted to the assault during an interview with an investigator, which was admitted at trial.  During the trial, however, the mother recanted her previous testimony, stating that she was simply trying to get back at her husband for cheating on her.  The child victim followed her mother's lead and also recanted, stating that she and her mother made it all up.  The State then brought an expert of child victims (the Program Director for the Children's Advocacy Center in Midland) who testified over defense objection that:

if a child who has made an outcry of sexual abuse has an unsupportive moter, there is about an eighty percent chance that the child will recant that outcry.

Using the prior recorded statements of the Appellant, the mother, and the child victim, the jury convicted Appellant and sentenced him to 14 years confinement and a $7,000 fine.  The 11th Court affirmed the case on appeal, holding that:

[The expert] did not offer a direct opinion that L.C. was truthful in her initial outcry of sexual abuse or that L.C. belonged to a class of persons that was truthful or worthy of belief.  Nor did [the expert] offer testimony that L.C. was not truthful in her trial testimony. Instead, [the expert] testified about the behavioral characteristics of children whose mothers do not support their outcries of sexual abuse. Maria did not support L.C.’s outcry of sexual abuse. [The expert] said that, in such cases, there is about an eighty percent chance that a child complainant will recant. [The expert]’s testimony was admissible to assist the jury in assessing L.C.’s testimony. The trial court did not abuse its discretion in denying appellant’s motion for mistrial.

My Witness or Yours?

During trial you should generally expect your opponent to call witnesses who will provide testimony damaging to your case.  That's their job.  But what you do not expect is that one of the witnesses you decide to call will be the most damaging of all.  That was the experience of Jose Armando Deleon's trial defense counsel during the sentencing portion of his trial for child sexual assault.

In Deleon's case, the defense counsel called a local probation officer as a defense witness during sentencing.  It appears from the appellate opinion that the defense counsel, pursuing a probation sentence, called this witness to testify primarily that

when sex offenders are placed on probation, they receive treatment to learn to control their behavior, including 'on how to push away any type of temptations or desires' and 'to remove themselves from high-risk situations.'

Okay.  That seems like reasonable testimony that one might want to elicit in hopes of gaining a probation sentence.  However, the wily prosecutor turned the defense tactic against them.  On cross-examination of the probation officer the prosecutor asked:

Q. Now rehabilitation of sex offenders: Are they ever rehabilitated to the point where the risk is gone?

A. No.  Absolutely not.  The risk will always be there. It may be minimized or lessened, but the risk will always remain because we don't know—I don't know what anybody here is thinking.  We can never assume that we know what a sex offender is thinking.  The risk is this: they were sex offenders before they committed the offense.  So we don't know what he is thinking, what they're planning.  We can give them treatment, we can do all the things that are required by law; but we can't see up here,so we can never truly predict what is going to happen from day one to day two.  You have got to assume all the risk because you have heard story after story, 'I never thought he would do this; I never thought my grandfather would do this; I never thought my dad would do this.'  So you never, ever push out the risk.  You always assume the risk is great.  As long as you assume the risk is great, then hopefully that is going to create enough protection to prevent other children from being impacted one way or the other. You just don't know.  I can have guys that do everything perfectly, but up here they're still having sexual fantasies of molesting two-year-old girls or two-year-old boys.  Just because you succeed well in probation does not remove the risk.

Not much chance the jury is going to award probation after hearing that!  And that's exactly what happened; the jury awarded Deleon 14 years confinement.  After such a blunder, naturally, Deleon argued on appeal that his counsel was ineffective for calling the probation officer and for failling to object during the prosecutor's cross-examination.  The 14th District Court of Appeals (Houston) agreed, holding

appellant's trial counsel was deficient in failing to object to the highly inflammatory testimony and for calling [the probation officer] to the stand in the first place. See Mares v. State, 52 S.W.3d 886, 892-93 (Tex. App.—San Antonio 2001, pet. ref'd) (holding counsel was deficient where counsel called probation officer as witness and then failed to object when she opined that a person in the defendant's situation would not make a good candidate for probation).  Counsel should have known how Russ was going to testify on these matters. There could have been no strategic reason for producing and permitting such damning testimony.

Case remanded for a new punishment proceeding.  Perhaps the defense counsel should have spent a little more time in the ole woodshed with his witness prior to calling him to the stand.

Justice Christopher dissented, and would conclude that there were legitimate and professionally sound reasons for counsel's conduct in calling Russ as a witness.  As the dissent points out,

A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

I'm with the dissent on this one.  You never know what it going to happen at trial and you have to expect the unexpected.  Of course, it appears the defense counsel could have prepared better for this witness, but he had a certain trial tactic and he employed it.  It just so happened in this case that the State was better prepared.  That's trial!  It's never perfect and the appellate courts should be extremely hesitant to second guess the tactical decisions by the participants.

Texas Pick 'Em; No Jury Unanimity In Continuing Child Sexual Abuse Cases

The issue of jury unanimity in Texas felony cases is a complicated area of the law.  TDCAA published a good article on the subject a couple of years ago.  Simply speaking, Texas criminal law generally requires a unanimous jury verdict wherein the all members of the jury agree on the elements of the offense.  A bit of a wrench is thrown into this system when we consider the offense of "continuous sexual abuse of a young child or children" under section 21.02 of the Texas Penal Code.

Under section 21.02, a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.  Specifically, subsection (d) of 21.01 provides:

If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Arguably, allowing jurors to simply pick and choose which instances (2 or more) of abuse they believe the State proved beyond a reasonable doubt without requiring that they all agree on the specific instances "undermines the weight or effect of [Texas's] rules for the mere purposes of returning a verdict."  This was the argument of Richard Michael Reckart in his appeal of his conviction to the 13th District Court of Appeals.

With a wave of the hand, the 13th Court dismissed Reckart's claim, holding:

Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.–Dallas June 30, 2010, pet. filed) (not designated for publication).

I guess I should know as well as anyone that there is no Constitutional right to a unanimous jury verdict, because we in the military justice system do not require such in any case except those involving the death penalty case (sentencing phase).  It just seems to me that if we, as a State, are going to require a unanimous jury verdict, that the requirement should be consistent as applied the the underlying offenses in a continuous abuse case.  If the jurors cannot agree on which acts were committed, isn't that called "reasonable doubt?"

Puberty Matters Not

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

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

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

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

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

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

Mineola Swingers Cases "Rife with Error"

Last week the 14th District Court of Appeals (Houston) released three opinions in the "Mineola Swingers" cases.  These cases involved three co-defendants who were convicted of child sexual abuse and organized crime for teaching children how to engage in sexual conduct and then taking the children to perform sexual acts publicly in front of a Swingers club.  Sick, I know.  So thought the trial court, because, as the 14th Court points out:

the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding [the defendant's] ability to defend himself.

Of the three cases released last week, Mayo v. State was modified and affirmed, while Kelly v. State and Pittman v. State were reversed and remanded.  Some of the pertinent reasons for each decision are contained below.

Mayo v. State -- Appellate decision hinged not on the evidence adduced at trial or the State's method of proving the case, but rather on a jury instruction and the a cumulation of sentences issue.  In giving a venue instruction regarding the sufficiency of proof, the trial court relied on previaling Texas caselaw rather than statute.  The CCA, however, held in 2003 that "Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis."  Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).  The appellate court found this error to be harmless.  What the appellate court did not find harmless, however, was the trial court's ordering of appellant's convictions for child sexual abuse and organized crime to run consecutively.  Noting that "Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively" and "organized crime is not one of the enumerated offenses,"  the appellate court modified the judgment to reflect "that appellant's life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child."

Kelly v. State -- To summarize this case in a few lines, the appellate court stated:

Although the evidence is legally sufficient to support appellat's conviction, the record is rife with error.  Many of these errors did affect appellant's substantial rights.  Therefore we reverse and remand for a new trial.

Of appellant's 43 issues presented on appeal, here are some of the highlights for which the Court reversed the case:

• The trial court denied the defendant the opportunity to present a meaningful defense by preventing him from pursuing the trial theory that the child victims' foster parents, who had recently been accused of child sexual abuse in CA, coached the victims to lie against the defendant in order to shift the blame from the foster parents.
• The trial court improperly allowed the State to introduce evidence that the 2 co-defendants were convicted and sentenced to life in prison for their involvement in the sex sting.
• The trial court allowed a mountain of hearsay statements of the outcry witness through an investigator who recounted the statements as fact even though he was not present for any of the statements.
• The State's witness on "child grooming" was not an expert and should not have been allowed to testify as such.

These errors (and more) contributed to the Court's reversing and remanding the case for a new trial.  Perhaps next time around the trial court will simply conduct the trial within the confines of acceptable trial practice and evidentiary rules, because, as the Court noticed, "the evidence [was] legally sufficient to support appellant's conviction."  I'm sure the Court could have engaged in some mental gymnastics to uphold this conviction, but it decided to require a cleaner record from the trial court.  Either way, this decision signals small shift toward maintaining a legal and respectable justice system in Texas.

Pittman v. State -- The Court reversed and remanded due to the trial court's abuse of discretion in allowing the State to introduce numerous extraneous offenses (drug use, sexual acts with other children, etc.) which were highly prejudicial when appellant was charged with sexual abuse of only one child.  In reversing the conviction, the Court stated:

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children.

It appears the State has some work left to do in these cases.

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?

No Mercy for Child Sexual Assault Cases

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

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

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

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

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