The Importance of Reading Statutes in Context

As an attorney just now jumping into private practice, I see no better time to take my mask off and let all of the Liberty and Justice for Y’all readers know who I am. (And, yes, like Mr. Barnett, I am delusional enough to think we have readers too.)

My name is Luke Williams and for the past few years I have been one of those “unnamed prosecutors” contributing to L&J for Y’all. I look forward to continuing to contribute to this blog. IMO, Brandon does an good job of ferreting out important cases for us to write on and I’ve enjoyed working with him on this blog.

Now on to the case de jure….Tha Dang Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

If you’d like more information about me or my practice, you can find it here: http://www.law4dfw.com/.

“What Did He Say?” – Defendant Entitled To Transcript of a Prior Mistrial

What follows is an excerpt from Blackshear v. State, a case out of the 14th District Court of Appeals (Houston). In Blackshear, the jury convicted appellant of possession of a controlled substance, but could not agree on an appropriate sentence. The judge declared a mistrial for the sentencing portion of the case. The State, which did not put on any evidence during the initial sentencing phase, decided to recall some of the trial witnesses during the new sentencing hearing to give the new jurors a better taste of the evidence. Accordingly, the appellant requested a continuance so that he could obtain a transcript of the prior trial in order to prepare a proper defense during the new sentencing hearing. The trial court, however, was more interested in a speedy disposition and denied the request for a continuance, empanelled a new jury the very same day, and conducted the sentencing hearing the following day. On appeal, the 14th COA held that it was error for the trial court to deny the continuance. The appellant had a presumptive right to the transcript that the State did not rebut. Here’s how the court explained it:

The State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal when those tools are available for a price to other prisoners. Among these basic tools is a transcript of prior proceedings when needed for an effective defense or appeal. In determining whether a defendant needs a transcript, the Britt court took two factors into account: (1) the value of the transcript to an effective defense, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

 In considering the first factor, the Britt court noted that “our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” Ordinarily, the court concluded, a transcript of a prior mistrial is valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. The Court of Criminal Appeals has expressly presumed a defendant’s need for a transcript and has imposed upon the State the burden to rebut the presumption.

An easy decision for the 14th COA in Blackshear. “Blackshear’s counsel should have been able to use the transcript from the first trial in his cross-examination in the second.” The trial court denied the request. No transcript = remand for new sentencing hearing.

No Such Thing as "Implied Bias"

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

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

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

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

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

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

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

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

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

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

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.

Trial Judge Must Make an Informed Decision

"It is highly unlikely a judge would sentence an unremorseful, fourth-time DWI offender to probation, regardless of any available program or sanction," says Justice Hilbig in his dissenting opinion in Gutierrez v. State.

However, a majority of the 4th District Court of Appeals (San Antonio) reversed and remanded the case for a new sentencing hearing because the trial judge failed to order a presentence investigation report.  

Article 42.12, section 9, of the Texas Code Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or 'if the judge finds there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.'

The trial judge having failed to order a report or explain on the record why a report was unnecessary, the Court found harmful error.  The Court explained that:

because there was no presentence investigation report, the trial judge was not provided with required 'proposed client supervision plan.'  Without a 'proposed client supervision plan' outlining the programs and sanctions available through the community supervision and corrections department to [the defendant], the trial judge did not have before her all the information required by statute for her consideration before imposing sentence.

While, in my opinion, it is doubtful that Gutierrez' new sentencing will be any less than the original sentence of 4 months in jail and a $1,500 fine, he will get his chance.  I think 4 months and $1,500 is pretty light for a 4th DWI.

Better Study Your Algebra!

Here are a couple more interesting issues that came up recently in Texas published cases:

Better Study Your Algebra
Davis v. State, (14th Ct - Houston) June 29, 2010 - Appellant argued that the trial court abused its discretion by allowing the State to introduce evidence during sentencing of the poor grades he received in school.  Overuling this issue, the Court held:

     Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to sentencing,‖ and the evidence is not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried.  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a).
     Although it is questionable that appellant‘s poor grades were relevant to determining an appropriate punishment for appellant, any asserted error in admitting evidence of appellant‘s grades was not harmful.

Even the State Needs Permission Sometimes
Witkovsky v. State, (2nd Ct - Fort Worth) June 24, 2010 - Where there is no showing that the terms or conditions of community supervision were modified, a person’s community supervision cannot be revoked for failure to meet the modified terms.  Because the defendant's community supervision was modified unilaterally, without court authorization, the trial court abused its discretion by revoking the defendant's community supervision on the basis of his failure to successfully complete a particular sex offender treatment program.

"The Best Part of Waking Up..."
Garcia v. State, (4th Ct - San Antonio) July 7, 2010 - Appellant argues that by placing his bare hand in the coffee can to search for marijuana, the police officer destroyed consumable property in violation of the Takings Clause of the Fifth Amendment to the Constitution.  However, the Court held, when property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not "takings" for which the owner is entitled to compensation.  The same rule applies even if the property is seized as evidence in a criminal investigation or as the suspected instrumentality of a crime, but is ultimately returned to the owner either because the government does not pursue forfeiture proceedings or because the owner prevails in a forfeiture action.