What's in a Name?

Last year I wrote about Byrd v. State, a case out of the 4th District Court of Appeals (San Antonio). In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Wal-Mart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future theft cases, the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Wal-Mart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

It Takes Two to Tango: Conspiring With a Government Informant

U.S. v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this case, Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense.  She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed.

The 5th Circuit dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.

Substantive Defects in Indictment Must Undergo a Harm Analysis

Does a substantive defect in an indictment require a harm analysis, or is it per se harmful, thus requiring that the indictment be quashed?  (Appellate law nerd alert – nothing sexy in this post!)

Although the CCA recently remanded a case (Smith v. State) to the 1^st District Court of Appeals (Houston) to determine whether defects of substance in an indictment are subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b), the CCA just couldn’t wait to answer the question itself.  It took the opportunity in Mercier v. State.

In Mercier, the State reindicted a defendant after having dismissed a previous indictment.  However, the new indictment was outside the 3 year statute of limitations and the State did not include any tolling language therein.   The trial court dismissed the defendant’s motion to quash and allowed the case to proceed.  The defendant was convicted.  He challenged the indictment again on appeal.  The 13^th District Court of Appeals (Corpus Christie) reversed the trial court’s ruling that the indictment did not require tolling language and dismissed the prosecution as being time-barred, holding that:

a defect of substance is harmful per se.

The CCA then granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in disregarding CCA precedent, Tita v. State, by holding that the case need not proceed to a harm analysis.

Outlining the history of TRAP 44.2(b) and the relevant cases dealing with substantive defects in an indictment, the CCA concluded that

unless proceeding under the indictment violated the defendant’s substantial rights, the trial court does not err by allowing the trial to go on.  The purpose of Rule 44.2(b) is for appellate courts to determine whether a non-constitutional error that occurred at the trial affected the defendant’s substantial rights, and if it did, then the error is reversible.  Rule 44.2 does not consider whether the error is a defect of form or a defect of substance; rather is differentiates between constitutional error and other errors.

With that, the CCA remanded the case back to the 13th Court to conduct a harm analysis.  This case clarifies the CCA's stance on procdural/substantive/constitutional defects.  The former 2 will be subject to a harm analysis, while the latter will require automatic reversal.

Note:  If the alleged criminal act is actually outside the statute of limitations and there is no basis for tolling, there should obviously be harm to a defendant/appellant. 

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.

“Manner and Means to the Grand Jury Unknown”

I've been told that rules are made to be broken.  It seems, the CCA agrees.  Okay, maybe not "broken," but certainly modified.  Yesterday, the Texas Court of Criminal Appeals overruled 17 years of precedent from Hicks v. State, 860 S.W.1 2d 419 (Tex. Cr. App. 1993) in cases involving an indictment (or jury charge) alleging “unknown manner or means" by which a defendant committed an offense.

In Sanchez v. State, the Appellant was convicted of “intentionally and knowingly caus[ing] the death of [the victim] by manner and means to the Grand Jurors unknown.” The court likewise charged the jury on the “unknown” manner and means. The Appellant objected to the “manner and means unknown” theory because, as he argued, the allegation was unsupported by the evidence presented at trial and was thus based on insufficient evidence to convict. The trial court overruled the objection. Appellant was convicted of murder and sentenced to sixty-eight years in prison.

On appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that the manner and means the Appellant employed were not actually unknown as there was testimony at trial regarding possible strangulation and use of a stun gun, and that the jury charge was erroneous in authorizing conviction on an “unknown” theory. The 13th Court bought it.

In determining whether the trial evidence was sufficient to warrant a charge on the “unknown” theories, the [Appellate] Court relied on the rule stated in Hicks v. State that when an unknown allegation is made in an indictment, the burden falls to the State either to present a prima facie case at trial that the manner and means were actually unknown, or to prove (usually by testimony) that the grand jury used due diligence to ascertain the manner and means of death.

The CCA, however, was no so persuaded. Identifying the thrust of the Hicks decision as “notice to the defendant,” the CCA explained that the rule “seems to have lost it intent and focus.” Devising a new rule in “unknown manner and means” cases, the CCA held:

we overrule the two-pronged rule in Hicks and announce a new standard for indictments with “unknown” allegations to the grand jury that are subsequently used as the jury charge at trial:

Where the State has alleged “unknown” manner and means in the indictment and/or jury charge, the defendant may challenge the propriety of the “unknown” allegation before trial and (if the evidence at trial has made a second inquiry necessary) at the conclusion of evidence, but before the charge is submitted to the jury.

Addressing the “notice” concern of the Hicks litany, the CCA provided:

The first question (whether raised before or during the trial) is whether the defendant was given proper notice so that he could properly prepare for trial. The pre-trial hearing will ensure that the “unknown” allegation was truly unknown to the grand jury and is not being used to surprise or manipulate the defendant at trial. This hearing replaces the Hicks test, but does not require proof of “unknownness” at trial. Instead, it permits hearings that will, at the very least, elicit all evidence that is now known so that the “unknown” aspect of the case can be minimized or eliminated by amendment of the indictment or the presentation of a superseding indictment.

The CCA reversed the 13th Court and affirmed Appellant’s conviction.

Tolling the Statute of Limitations for a Separate Offense

A period of limitations may be tolled for 2 reasons:

1) the time that a defendant is absent from the state; or
2) the time that another indictment is pending.

Accordingly, if the state dismisses an indictment and then reissues the indictment, charging the same offense, the statute of limitations for that offense would be tolled for the entire period that the previous indictment was pending.  But what if the new indictment alleges a different offense than the first indictment?  Is the limitation period still tolled?

This was the issue presented to the Texas Court of Criminal Appeals in Ex Parte Brooks.  In that case, the State originally charged the defendant with theft that was alleged to have occurred "between 7-1-98 through 4-1-2000."  Prior to trial, however, and over the defendant's objection, the trial court allowed the State to dismiss the indictment.  The State then re-indicted the defendant and included specific language alleging aggregated theft under Texas Penal Code Section 31.09.

Via a pretrial application for a Writ of Habeas Corpus, the defendant claimed that prosecution on the new indictment was barred by the statute of limitations.  His reasoning was that the statute of limitations was not tolled by the previous indictment because the previous indictment alleged a separate offense (felony theft versus aggregated felony theft).  The trial court, along with the 12th District Court of Appeals denied relief, never actually considering whether the limitations period was tolled by the previous indictment.

The CCA, noting that its discretionary power permits review only of decisions by the lower court, reversed the judgment of the 12th Court of Appeals and remanded the case back to that court to consider the tolling issue.

Judge Meyers concurred.

So the real precedential value of this case is the holding that a pretrial application for writ of habeas corpus is a proper means to challenge this limitations issue.  We will have to wait for the more substantive and interesting issue as the 12th Court takes a second look.

Must the State Prove the Identity of the Victim in a Theft Case?

The 4th District Court of Appeal (San Antonio) delivered a sharply divided en banc opinion yesterday in Byrd v. State.  The issue in the case was whether, in a theft case, that State is required to prove the person named as owner in the charging instrument was the actual owner of the property?  In a 4-3 decision the majority held that because the owner’s name is not a statutory element of the offense of theft, the State need not prove the name of the property owner as charged.

In her dissent, Justice Simmons did not mince words:

Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:

“with the intent to deprive the owner, Mike Morales, of property, . . . did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property . . .

Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict.  This is an astonishing result. T he consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner.  I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material.  The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002).  In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged.  There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof.  But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.

180-Day Speedy Indictment Rule is Merely Procedural

What happens when the State drags its feet in presenting an indictment or information against a person who is incarcerated or otherwise in custody?  Can that person have his case dismissed with prejudice when the State fails to move quickly in charging?  Unfortunately, th best he can hope for is to buy some time by having the case dismissed thereby releasing him from custody while the State pursues its indictment.  The State will then be forced to re-arrest the defendant once it finally obtains an indictment or drafts an information.

Article 32.01 of the Texas Code of Criminal Procedure provides:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail on of before the 180th day after the date of commitment or admission to bail, whichever date is later.

Jeffrey Paul Schroeder argued on appeal that his indictment was defective because it was not presented within this 180-day time frame.  In a concise and pointed opinion (HERE) upholding the conviction for intoxication manslaughter, the 9th District Court of Appeals (Beaumont) explained why Mr. Schroeder's claim failed:

[A]rticle 32.01 does not create a substantive right that frees a person from prosecution for the commission of an offense. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). Instead, article 32.01 creates a procedural right to be dismissed from custody under certain circumstances until the grand jury has been presented with an indictment. After the presentment to the grand jury of an indictment on the offense at issue, article 32.01 is no longer applicable. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999). In most cases, “the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution . . . .” TEX. CODE CRIM. PROC. ANN. art. 15.14 (Vernon 2005).

In this case, Schroeder did not obtain a ruling on his motion to dismiss before the grand jury returned its indictment. Therefore, when the trial court ruled on Schroeder‟s motion, and because the grand jury had at that point returned an indictment, the trial court was no longer required to release Schroeder from custody. See Ex parte Countryman, 226 S.W.3d 435, 436-39 (Tex. Crim. App. 2007) (in a habeas proceeding, holding that a “speedy-indictment claim” was moot when the indictment had been returned before the trial court heard the motion to dismiss the indictment). Because Schroeder had already been indicted by the grand jury when the trial court denied his motion to dismiss the indictment, a dismissal of his indictment was no longer required. Id.

Pre-Trial Motion to Quash Indictment is a Facial Challenge

When a defendant challenges the indictment at a pretrial hearing, the only inquiry may be into whether the indictment, on its face, met the pleading requirements.A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing.

State v. Reyes, 8th District Court of Appeals (El Paso), reported 24 Feb 2010.