CCA Reverses Course on Polygraph Admissibility

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.

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/.

CCA Affirms Disjunctive Conviction

In May of 2010, I blogged about Young v. State, a case out of the 3rd District Court of Appeals (Austin), wherein the court upheld a conviction for failure to fulfill sex offender reporting requirements even though the jury was not required to return a unanimous verdict regarding the means of the failure.

Last week, the CCA affirmed the case, holding that:

It has long been held that juror unanimity is required in felony cases by the Texas Constitution and in all criminal trial by state statutes.  Put simply, the jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed...  Jurors must unanimously agree only that a sex offender failed to fulfill his reporting duty; they are not required to agree as to how he failed that duty.

See the CCA opinion HERE.

See my previous post with amplified details HERE.

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

Let the Record Reflect...

I cringe when I hear an attorney say "Let the record reflect."  Of course the record will reflect!  If you're saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.  Use it if you want, but you won't ever hear me say it.  I apologize for the rant.  That is not what this post is about.

Below are a couple of recent cases from the Texas Court of Criminal Appeals.

Newman v. State (on appeal from the 14th District Court of Appeals - Houston) - Appellant filed an unsworn motion in the trial court, challenging the eight-year delay from indictment to trial as a violation of his constitutional right to a speedy trial.  The trial court denied the motion and indicated that it did so after a hearing.  The appellate record, however, did not contain a reporter's record of this hearing.  Noting that the record was "sparse" and cautioning "practitioners regarding the importance of developing a record," the court of appeals, nonetheless, overturned the trial court's ruling and held that Appellant's right to a speedy trial had indeed been violated.  The CCA reversed the court of appeals, holding that Appellant has "failed to present a record demonstrating that the trial court's decision should be overturned."  The CCA noted that "an unsworn motion does not, by itself, present evidence upon which relief can be granted" and held that "the court of appeals would have erred to consider the factual assertions in Appellant's unsworn speedy-trial motion."  Simply put, the record did not reflect.

Ex Parte Chamberlain (on appeal from the 2nd District Court of Appeals - Fort Worth) - In this case, Appellant alleged that the lifetime sex-offender registration requirement violates his substantive due process rights because there is no mechanism to permit any future risk reassessment concerning the probability or likelihood of recidivism.  The lower court rejected the claim because under the Texas Code of Criminal Procedure Articles 62.401 through 62.408, there is a statutory mechanism that allows a person subject to lifetime registration requirement to seek early termination.  After the lower court's ruling but before the CCA's decision, the Council on Sex Offender Treatment (CSOT) published a new list regarding the classes of sex offenders which may apply for deregistration.  Accordingly, because the court of appeals did not consider this new list, the CCA remanded the case back to the court for another proceeding.  The CSOT's new list is available HERE.

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

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

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

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

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

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.

Two Means of Committing a Single Offense

Robert Alan Young was charged with failing to comply with Texas's Sex Offender Registration requirements (see chap. 62 of Tex. Code Crim. Proc.) by failing to report his change of address either 7 days before his intended move or 7 days after his move was completed.  By so charging, the State was able to gain a conviction so long as the jury could agree that either of the 2 theories was established beyond a reasonable doubt.  After his conviction, Young argued on appeal that by charging the offense in the disjunctive, the State violated his right to a unanimous jury verdict. (I tend to agree.)

Think about.  What if half of the jurors believed that Young violated with the registration requirements by failing to report his change of address 7 days prior to his move, while the other half disagreed and believed that, rather, he failed to report his move within 7 days after it was effected?  It seems we would not have a uniamous verdict under either theory.  Oh, but that is not how it works (says the 3rd District Court of Appeals - Austin).

In Young v. State, the Court explained:

The single offense described by both article 62.055 and by the jury charge is the offense of failing to report a change of address.  This offense can be violated by failing to report the change in advance, aftewards, or both.  Those variations are evidentiary, not separate and dstinct elements of an offense.  Here, the statutory verb defining the criminal act is "report."  Thus, in this case, it is the act of reporting - or the failure to do so - upon which all jurors must agree.

A Probation Officer Can't Do That!

Of course, in Texas, we call our probation officers "Community Supervision Officers" and last week, the 2nd District Court of Appeals (Fort Worth) explained that community supervision officers CANNOT unilaterally modify the conditions of a person's community supervision (probation).

In Witkovsky v. State, the State tried to revoke appellant's community supervision for failure to complete a sex offender treatment program.  The problem with this was that appellant had already completed a treatment program as required by the Court.  The community supervision officer, however, was dissatisfied with appellant's "progress" as a reformed sex offender and unilaterally ordered that he attend a 2nd treatment program.  When appellant failed to complete the 2nd program, the State moved to revoke his community supervision.  Ala Lee Corso from College Gameday - "Not so fast my fiend" - the Court explained that under Aricle 42.12, Section 10(a) of the Texas Code of Criminal Procedure:

only the judge may alter condiditions of community supervision.  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. 

There are exceptions, whereby a Community Supervision officer can modify the terms of the "community supervision by transferring the defendent to different programs within the community supervision continuum of programs," but that was not the case here where the officer tried to impose an additional treatment program on the defendant.

To Catch (and Release) a Predator: Defending the Internet Sex Sting Case

Defending the Internet Sex Sting Case - Jan/Feb 2010 issue of GP Solo.

Recently ran across an interesting article in the GP Solo magazine from the ABA.  In it, Anthony J. Colleluori, presents several helpful pointers on how to "Defend[] the Internet Sex Sting Case."  The article is available on the ABA website HERE.  The tips he provides are worth a read when you have the time.

You've Been Evicted! Now Go to Prison for 25 Years

When it rains it pours.  For texan Joseph C. Ford, that phrase is more true than ever.  It's not enough that he was convicted of a sex offense which requires registration as a sex offender, but now he gets 25 years in prison for failing to update his registration within 7 days of an expected move even though he was evicted from his home.

The 10th Court of Appeals (Waco), in Ford v. State, recently upheld the conviction and sentence of the 19th District Court of McLennan County wherein Ford was convicted for violating Texas' sex offender registration statute (Tex.Code.Crim.Proc.Ann. art. 62.101(c)(Vernon 2006)).  Ford was evicted from his home.  Because of his eviction, Ford was unable to comply with the registration statute which requires a sex offender to update his new address with county officials at least 7 days prior to his move.  Although Ford's move was arguably unexpected, he was convicted and sentenced nonetheless.

I'm sure there's much more to this story, and the State was probably justified, but it appears that Ford got a raw deal.  Texas courts have no mercy on sex offenders (and rightfully so if you ask me).