A Prosecutor’s Comment on a Defendant’s Failure to Testify

If a criminal defendant takes the stand during trial on the merits and denies culpability, but then, after being convicted, chooses not to testify during the punishment phase of the trial, may the prosecutor comment during closing that the defendant has “not taken responsibility for the crime?”

The 1st District Court of Appeals (Houston) says NO. But what about the Texas Court of Criminal Appeals?

In Randolph v. State, No. PD-0404-10 (Tex. Crim. App. 2011), appellant testified during guilt/innocence he was never at the scene of the crime and offered the jury an alibi. After the jury convicted him, he did not take the stand during the punishment phase of the trial. The prosecutor argued during close (in the punishment phase):

You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime.

On appeal, appellant relied upon Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) to argue that the prosecutor improperly commented on his failure to testify during the punishment phase of trial. The 1st COA agreed and held the prosecution violated the precedent set forth in Swallow. The CCA didn’t buy it, however, holding:

[A] punishment-stage remark on the defendant’s failure to accept responsibility may be fair game if the defendant, in his guilt-stage testimony, denied responsibility for his actions or for the crime.

The 1st COA held this closing argument remark was the same as the remark given by the state in Swallow, but the CCA distinguishes:

But in this case the prosecutor said nothing about remorse or lack of remorse. She spoke only of “responsibility of the crime” – responsibility that appellant explicitly denied during his testimony. This Court, in Swallow, inadvertently combined the apples of “remorse” (which is generally expressed only after accepting responsibility) with the oranges of “responsibility.”

The CCA further explained:

The prosecutor may comment on any testimony given by the defendant in the guilt stage, and, if the defendant expressly or impliedly denies criminal responsibility during that testimony, the prosecutor may comment on that denial.

Dissenting, Judge Myers asserts:

By referring to the fact that Appellant did not take responsibility for the crime, the state pointed out that the defendant did not testify during punishment phase of his trial. The majority complicates the matter by analyzing the definitions of the words used by the prosecutor, rather than considering their obvious meaning – thus creating a horrible Hobson’s choice for the defendant, an indiscernible dilemma for the trial judge, and an appellate record that will be difficult to decipher.

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.

Special Condition X Lifted at Habeas Proceeding

Ex Parte Evans - The Texas Court of Criminal Appeals considered a case wherein sex-offender conditions were placed on a parolee for an offense other than a sex offense.

In October of 2001, Appellant pled guilty to two counts of reckless injury to a child (not a sexual offense). He was sentenced to ten years in prison on each count. On October 25, 2006, Appellant was released to parole in Lubbock, Texas. He then asked for his parole to be transferred to El Paso, Texas, where his children lived. Once he arrived in El Paso, his new parole officer gave him a “Notice and Opportunity to Respond Pre-Imposition of Sex Offender Special Conditions.” He submitted a written response stating that he was unable to produce any documentation to show that the offense he had been convicted of was unrelated to anything sexual in nature other than the fact that the victim’s doctor had testified that the injuries were not sexual in nature.

Despite his dispute, his parole officer recommended that “Special Condition X” (the sex-offender program) be added as a condition of his parole.  From all accounts, immediately after the condition was imposed, Appellant went “downhill.”  He was not allowed to visit his children anymore.  Further, in October of 2008, Appellant’s parole officer and a handful of other officers searched the Appellant’s home. Inside, they found a cell phone on Appellant’s bed that had a picture of a nude woman on it. Several other pictures of nude women were found in his cell phone online photo album. Also, the officers found two pornographic DVD’s - all of which were unlawful for Appellant to possess while a registered sex offender. 

Appellant’s parole was then revoked upon a motion by the State. At the hearing, Appellant argued that the conditions had been unconstitutionally imposed without due process and that the facts of his conviction did not justify such sex-offender conditions. His argument fell on deaf ears and he was returned to prison.

On a writ of habeas corpus, the trial judge found that Appellant had not been convicted of a sex offense, that there was no evidence of sexual abuse of his victims, and that he was not afforded due process before the imposition of the sex offender conditions. The trial judge relied on an opinion out of the 5th Circuit, Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009). That case had almost the exact same facts as Appellants case and the court in the Meza case found that due process had not been afforded in imposing sex-offender conditions as a condition of parole. Here, the CCA acknowledged the opinion but stated that the Meza opinion failed to clarify “exactly how much process is constitutionally due before sex-offender conditions may be imposed upon a parolee who has not been convicted of a sex offense.”

The CCA then cited the Fifth Circuit’s analysis of this issue in the 2004 case, Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) which ultimately held that “a parolee who has not been convicted of a sex offense must be afforded the following procedures before sex-offender conditions may be imposed on him:

(1) written notice that sex offender conditions may be imposed as a condition of mandatory supervision;

(2) disclosure of the evidence being presented against [the person] to enable him to marshal the facts asserted against him and prepare a defense;

(3) a hearing in which [the person] is permitted to be heard in person, present documentary evidence, and call witnesses;

(4) the right to confront and cross-examine witnesses, unless good cause is shown;

(5) an impartial decision maker;

(6) a written statement by the fact finder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.”

The Court held that because these procedures were not offered to Appellant, he was entitled to the relief he sought: immediate release on mandatory supervision without sex-offender conditions, and, if TDCJ sought to re-impose such conditions he was entitled to the protection of the Meza due-process procedures. The Texas Department of Criminal Justice did chime in with four arguments advocating for the actions of the parole officer but the court shot them all down (see the original opinion for more detail).

What’s the take-away? It’s pretty simple my opinion: Due process must be afforded to individuals on parole when the State attempts to add sex-offender conditions on a parolee who has not been convicted of a sexually related offense.

Just for good measure, here are some helpful links pertaining to Sex Offenders and Sex Related Crimes:

Texas Sex Offender Registry

Council on Sex Offender Treatment Home Page

Sex Offender Laws, Legislation-Rules and Sex Offender Legislation-Laws

Texas DPS FAQ page regarding Sex Offenders

"No Hablo Ingles"

Contreras v. State,

A Mexican citizen was convicted in Denton County for intoxication assault and failure to stop and render aid.  On appeal, he lodged a Miranda-esque complaint, contending that the trial court erred by not suppressing statements he made after being arrested but before being informed of his rights as a Mexican citizen to contact the Mexican consulate.  After contacting officials in Arizona for advice on immigrataion policy, the 11th District Court of Appeals (Eastland) rejected the Appellant's argument and affirmed the conviction.  (Of course, I am only kidding about the Arizona thing, but the court really did affirm the conviction.)

The Vienna Convention on Consular Relations grants foreign nationals who have been arrested, imprisoned, or taken into custody the right to contact their consulate and requires the arresting government authorities to inform the individual of this right “without delay.”

Rocha v. State, 16 S.W.3d 1, 13 (Tex. Crim. App. 2000).  Notwithstanding the fact that the U.S. Supreme Court has held that the Vienna Convention does not control Texas or national law (Medellin v. Texas, 552 U.S. 491 (2008)), the Appellant asserts that he was denied procedural due process and as a result, any statements he made prior to being afforded his right to contact his consulate should be suppressed.

The 11th Court, however, refused to recognize any Due Process right in this instance, stating:

...because the Vienna Convention was drafted to govern relations between sovereign nations and foreign consular officials, Sierra v. State, 218 S.W.3d 85, 86-87 (Tex. Crim. App. 2007), we do not believe that its language creates a substantive right sufficient to implicate the constitutionally required procedures police officers must follow before interrogating a foreign national.  Moreover, courts have not read the treaty to require notification before instituting any police interrogation, but only within three working days of the arrest. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 362 (2006) (Ginsburg, J., concurring in judgment) (citing Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 52 ¶ 97 (Judgment of Mar. 31)).  Thus, even if we are in error and the Vienna Convention does create a benefit enforceable under the Due Process Clause, we do not believe that this required the police to inform Contreras of the right to contact his consulate before beginning a custodial interrogation.

Just in case the court misinterpreted the law regarding foreign relations, the Court further explained that:

Even if we are in error, Contreras is not entitled to the suppression of any evidence. The Supreme Court has held that suppression under the federal exclusionary rule is not an appropriate remedy for a violation of the Vienna Convention.  Sanchez-Llamas, 548 U.S. at 350. In Rocha, the Texas Court of Criminal Appeals held that the exclusionary rule under TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, including the Vienna Convention.  Rocha, 16 S.W.3d at 18-19. The trial court, therefore, did not err in admitting Contreras’s statements.

So the takeway from this case is that  (in Texas) foreign nationals are not afforded any enhanced procedural due process right to contact their consulate prior to being questioned by police officers.  Of course, Miranda would still apply (perhaps, even in Arizona), but there is no further right created by the Vienna Convention and evidence will not be suppressed for failure to follow its mandates.

16 Will Get You 20!

The colloquial phrase "sixteen will get you twenty" is a common exclamation expressing the widespread awareness of statutory rape laws and the strict liability aspect of the offense.  There is no means rea (evil mind requirement) for statutory rape and there is no mistake of fact ("but I thought she was 19") defense.

Appellant Mark Fleming in the 2nd District Court of Appeals (Fort Worth) challenged the strict liability nature of Texas' statutory rape offense (section 22.021(a)(1)(B)(iii) of the Texas Penal Code), arguing that the lack of a means rea requirement violated his rights under the federal due process and Texas due course of law provisions.

Fleming argues that the absence of a mens rea or mistake-of-age component to [Texas' statutory rape provision] is a wrongful government action irrespective of the procedure in place to guarantee fairness.

In considering his argument, the Court conducted somewhat of a survey of many jurisdictions across the country.  Mentioned in the opinion to support the notion that statutory rape (strict liability) laws are not dead in America were cites to cases from California, Wisconsin, Colorado, Louisiana, Maryland, Rhode Island, Missouri, Nebraska, Michigan, Massachusetts, Iowa, New Hampshire, and Utah, all upholding a similar provision.  It appears the Court went to such lengths to cite cases from other states in order to refute the idea that

the lack of a mental culpability component offends 'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'

and thereby avoid application of "strict scrutiny" to Appellant's constitutional claim.  With apparent national support, the Court thus held:

With these decisions and the backdrop of the majority rule in this nation regarding statutory rape in mind, we conclude that there is no fundamental right that a State is required to include a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, section 22.021 only needs to serve a legitimate state purpose to be constitutional against the backdrop of substantive due process. Strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor.

Although sound reasons might be advanced on either side of the argument of whether a mens rea component should exist or whether a mistake-of-age defense should exist in section 22.021, determining the line that separates what is criminal from what is not lies peculiarly within the sphere of legislative discretion—especially,as here, where no fundamental right is at question.

So, in case you were still wondering, "16 will still get you 20!"

Some Various Holdings

While I'm focused elsewhere, here's a quick look at some published holdings from around the state:

Confession Valid Despite Illegal Arrest
Monge v. State, (Tex. Crim. App.) June 30, 2010 - Providing suspect with co-defendant's confession implicating him in the crime attenuated the taint of the illegal arrest such that the suspect's later confession was not subject to exclusion.

"I'm Incompetent, I Just Can't Prove It!"
Galvan v. State, (11th Ct.--Eastland), June 17, 2010 - The defendant, who is presumed competent to stand trial, must prove by a preponderance of the evidence that he is incompetent, and a jury finding that the defendant is compentent will not ordinarily by overturned.

Skeletons in the Closet
State v. Krizan-Wilson, (14th Ct.--Houston), June 22, 2010 - A 23-year prosecutorial delay in seeking an indictment for murder did not violate the defendant's due process rights because the delay was not an intentional device used to gain a tactical advantage over the accused or for other bad faith purposes.