Merry Christmas and Happy New Year!

You may have noticed, or not, that I haven't been posting for the last week or so.  Well, that's because I'm on leave with my family for the holidays.  I'll be back to work next year and will get cracking on some posts then.  In the meantime, have a very Merry Christmas and a Happy New Year!

Warrant Required for Private Emails (in the 6th Circuit)

As reported HERE, the U.S. Court of Appeals for the Sixth Circuit ruled on Tuesday, December 14th, that

The government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause.

In making this ruling, the Court held that a portion of the Federal Stored Communications Act - the portion that allowed an ISP to turnover a subscriber's emails without a warrant after they have been stored for 180 days - was unconstitutional.

We'll have to wait to see what the DOJ does with this ruling and whether the other Federal Circuit Courts fall in line, but for now, this decision is not binding on the Federal Courts outside the 6th Circuit.  Currently, the Fifth Circuit, which covers Texas, has not similarly ruled on this issue.  This could be a good issue for the cert from the Supreme Court.

The case, U.S. v. Warshak, can be found HERE.

The Overzealous, Inexperienced, Wet-Behind-The-Ears Prosecutor!

If the title didn't give it away, this post is from one of our friendly Texas prosecutors.  No, he's not overzealous (okay maybe a little), inexperienced, or wet-behind-the-ears, but he remembers back to the days when he was.  Here's some advice from him:

Raise your hand if you're tired of dealing with this guy? Most, if not every defense attorney can relate to having to deal w/a prosecutor half his age with about 1/100th the experience on a weekly basis. If you're experiencing difficulity in this area I have an easy solution...

Get over it!

We all know how well DA's offices pay, don't we? We also know how they are often limited to hiring green attorneys fresh out of law school and most often not the highly sought after editors of the law review. Short of Texas counties drastically raising taxes to increase its employees salaries, I don't see this changing. (Just checked the political climate tracker and Texas and nope, this ain't happening.) So, get over it! And learn how to deal with it.

Why? Because unless you're favorite phrase to hear from the prosecution is "set it for trial," refusing to respect and work with those young whipper snappers isn't going to get you anywhere.

I'm not suggesting you have to agree with them, or enjoy it. What I am saying is if you are truly in this business to help your client reach the best possible outcome, then you must find a way to maintain a professional relationship with any prosecutor you encounter.

How do you that? Another easy answer. Be courteous and show him or her respect. Regardless of the situation, this should always be your goal as a defense attorney.

I don't know how many times I've seen a defense attorney blow an opportunity for his client because of his own selfish pride. And ultimately what did they gain? Well, I made sure he knew who he was dealing with and that this wasn't my first rodeo!

Many, young prosecutors have a chip on their shoulder because...? Because they are young and deal with an adversary they know has more experience than they do.

It is only intensified when the defense attorney acts in an arrogant, belittling manner. Don't do it. Most, if not all, of those "snot-nosed kids" will respond better to your respect than your lack of it. As always, your reputation precedes you. Having the reputation of a respectful defense attorney should be highly desired. Unfortunately, its constantly forgotten.

College Professor's CP Conviction Stands

Here's the down and dirty holding of a recent case from the U.S. Court of Appeals for the 5th Circuit regarding the 4th Amendment Warrant Requirement.  Full text of the case (U.S. v. Allen) can be found HERE. 

The appellant was a college professor before being convicted of receiving Child Pornography.  On appeal he challenged the validity of the search warrant authorizing search of his computer, arguing that it was overbroad and contained stale information.  The 5th Circuit affirmed the conviction.

The court held that the search warrant did not describe with sufficient particularity the items to be seized, and the attachment detailing the items to be seized was not incorporated by reference into the warrant. However, the court concluded that evidence seized during the execution of the search warrant was admissible under the good-faith exception. See U.S. v. Leon, 468 U.S. 897 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible․”).  

The language used in the warrant was flawed, in that it did not reference the exhibit containing the affidavit and list of items to be seized. However, a reasonable officer could have easily concluded that the warrant was valid since the magistrate judge signed not only the warrant, but also the affidavit, to which the list of items to be seized was attached. The magistrate judge’s signature on the affidavit reduced the concern that he did not agree to the scope of the search as defined in it. This protected the defendant by preventing the officers from conducting a general search. The mistake was not that the documentation was insufficient to support issuance of the warrant, but that the attachment and affidavit were not properly incorporated into the warrant by reference.

The court further held that the information relied upon by the officers to establish probable cause was not stale. The court found, in cases involving child pornography, it was reasonable for the magistrate to conclude that the pornographic images were still on the defendant’s computer eighteen months after he transferred them.

You gotta love the Good-Faith Exception.

Sue 'Em Now!

Happy Monday folks!



This video is only a joke. Liberty and Justice for Y'all does NOT endorse the ideas contained therein.

Driving Near 6th Street Late at Night - Must Be Drunk

My last post was about the “reasonable suspicion” standard as applied by the 4th District Court of Appeals (San Antonio). A day after posting about that case, the Court of Criminal Appeals released a new “reasonable suspicion” case – Foster v. State. In this case, the CCA reverses the 3rd District Court of Appeals (Austin) which previously held that reasonable suspicion did not exist to justify appellant’s investigative detention. The CCA concludes, however, that the officer did have reasonable suspicion to justify detaining appellant. The detention resulted in appellant’s arrest and conviction for DWI.

What is becoming all too clear from reading these cases is that a “reasonable suspicion” determination can go either way, and that a big factor in the case is the initial ruling of the trial court. The law requires that appellate courts give the trial court decision great deference, which, if this standard is applied, can make it quite difficult to overturn a trial judge’s ruling on this issue.

Let’s see what you think about the CCA’s determination that the officer has “reasonable suspicion” to justify appellant’s detention. Here’s what the officer observed:

• Appellant was driving his vehicle near the Sixth Street bar district in Austin.
• It was late at night.
• Austin police often observe people driving while intoxicated near this area late at night.
• Appellant stopped his vehicle closely behind the officer’s unmarked vehicle at a traffic light.
• Appellant’s vehicle exhibited a lurching movement forward after he had stopped at the light.
• Appellant’s vehicle moved forward again as if to try to change lanes at the light, but he was too close to the officer’s unmarked vehicle to execute the lane change.

That’s it. That is all the objective evidence the officer had to justify the investigative detention that led to appellant’s arrest for DWI. A little flimsy if you ask me. Okay, you might say, “But wasn’t he actually driving while intoxicated? Why does it matter that the officer’s reason for the stop is a bit flimsy?” I’ll tell you why. Because we don’t live in Nazi Germany. The police cannot simply stop you whenever they have a hunch. The U.S. Constitution gives us the right to be “secure in our person, houses, papers, and effects against unreasonable searches and seizures” and we should guard against even the slightest erosion of this right. Any police detention that is not based upon specific, articulable facts should be met with sharp contempt. That’s my $0.02. But, once again, this case turned on the trial court’s initial ruling that the stop was justified, and based on the great deference owed that decision, the CCA felt it must uphold the trial court’s ruling.

Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.

Batson Challenge: Must the State have Questioned the Stricken Juror?

In a criminal trial, each side is allowed to strike a certain amount of prospective jurors (venire members) from the jury using peremptory strikes.  They can strike these venire members for any reason at all, so long as it is not discriminatory in nature.  If one side believes that the other has used a peremptory strike in a discriminatory manner (e.g. to strike a certain race from the jury), they can make what is called a Batson challenge.

Reviewing a trial court's denial of a Batson challenge in Grant v. State, the 10th District Court of Appeals (Waco) found that the State's explanation for striking a certain venire member was a pretext for racial discrimination because "there was no meaningful examination [of the member] regarding the reason the State used to strike him."  The Court of Criminal Appeals didn't agree with the legal reasoning of the Waco jurists.  Writing for a unanimous court, Judge Womack explained:

We hold that a lack of meaningful questioning might be sufficient to support a Batson challenge under the appropriate circumstances, but the Court of Appeals erred in applying the standard of review in this case.

The Court further explained that a reviewing court must given great deference to a party's facially race-neutral  explanation for using a peremptory strike, reversing only if the court's ruling was clearly erroneous.  (Is it wrong that I'm am bored while writing this post?  I can only imagine how bored you must me if you are reading it, so I'll cut to the chase).

In Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990), the CCA created a non-exclusive list of five factors to determine whether a prosecutor used a peremptory challenge based on race.  One of the factors was the lack of meaningful questioning of the prospective juror, but the CCA stated that this factor was not dispositive.  Accordingly, because the Court of Appeals required the state to individually question the prospective juror, and because the Court of Appeals did not give great deference to the state's facially race-neutral reason for striking the juror, the CCA reversed.

Wheww!  That was terrible.  I really need to find some better cases to write about.  I have a backlog of Courts of Appeal opinions.  Maybe I should read through them and find something sexy.

Don't Buy Stock in this Soda Company

Just some levity for the weekend.

Juvenile Life Without Parole Sentence Affirmed

In 2005, the U.S. Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), holding that the Eighth Amendment prohibition against cruel and unusual punishment forbids the execution of juveniles (i.e. anyone under the age of 18). At that time, the juveniles in Texas that were on death row had their sentences commuted to Life with parole. Also in 2005, the Texas Legislature amended Section 12.31(a) of the Texas Penal Code to require Life Without Parole (LWOP) sentences for capital cases in which the State does not seek the death penalty. This new LWOP provision applied to offenses committed on or after September 1, 2005.

Consequently, because juveniles could no longer be sentenced to death, all juveniles convicted of a capital crime in Texas were automatically sentenced to LWOP. In 2009, however, the legislature again amended section 12.31(a), to provide, in relevant part:

An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the [TDCJ] for life [i.e. with parole], if the individual’s case was transferred to the court under Section 54.02, Family Code.

The new life imprisonment (with parole) ceiling on juvenile capital offenses was not applied retroactively. The legislature specifically provided that the amendment applied only to an offense committed on or after September 1, 2009.

Chris Joshua Meadoux, the subject of a recent Court of Criminal Appeals opinion, was a juvenile capital offender sentenced to LWOP for a double murder that occurred in 2007. Unfortunately for him, his offense was committed during the 4 year window in which LWOP was the required punishment for a juvenile capital offender. He complained on appeal that his sentence violated the Eighth Amendment because the 2009 amendment reducing LWOP to life indicates that LWOP is a cruel and unusual punishment for juveniles. His specific arguments on appeal were:

1. Juveniles were less morally culpable (i.e. blameworthy) for their crimes than are adult offenders;
2. Life imprisonment without the possibility of parole did not serve as a measurable deterrent for juveniles; and
3. The Legislature’s recent amendment of the Texas Penal Code Section 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders signified that the evolving standard of decenecy, at least in Texas, forbade the categorical assessment of LWOP for juvenile capital offenders.

Appellant requested that his case be remanded back to the trial court for a new sentencing hearing in which life imprisonment would be the maximum penalty.

The 4th District Court of Appeals (San Antonio) held that the Eight Amendment did not bar LWOP in Appellant’s case, as his crimes were committed during the time in which LWOP was the required punishment. In its opinion of November 17, 2010, the CCA agreed, holding that:

(1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering the balancing of these four factors, we conclude that Meaduox has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

Judge Meyers penned a dissenting opinion and was joined by Judge Johnson. They would hold that because the Legislature subsequently determined that LWOP is inappropriate for juvenile offenders, the sentence in Appellant’s case is unreasonably harsh.

I won’t make a lot of friends with my opinion of this holding, because I think the court got it right. In fact, I think the Legislature got it wrong in 2009. I believe that LWOP should still be an available punishment for juvenile capital offenders, but as an option, with life as the other alternative. We should let the jury decide whether LWOP or life is appropriate in each case. In this case, Meadoux committed a double murder and then tried to burn the bodies in a house fire to destroy the evidence. He got what he deserved.

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.

One-Year of Blogging. Happy Birthday to Us!

Well, it's been a year.  One year ago today, I began blogging about Texas criminal law and procedure and I'm still enjoying it.  It has been said that most bloggers quit after 11 months, so I guess I made it past the breaking point.  Unfortunately I have less time to blog now than I did when I began, and it has become a bit more challenging to keep the posts coming, but I have no intention of giving up.  As long as the Texas courts continue to release opinions, I'll continue to write about them.  I may not have something to post everyday and I definitely will not be able to write about every case, but I'll try to bring you the highlights and interesting cases. I'm also planning to include some bios of Texas jurists in the coming year.

Here are some stats from the past year:

Blog Posts: 198
Visitors:  12,877
Pageviews:  17,108

A big thanks to my biggest supporter (by way of referrals), Scott Henson of Grits for Breakfast.  He's certainly kept the web traffic checking in on me from time to time.

Another thank you to my guest bloggers (a few Texas prosecutors), who bring us great stuff with each post they write.

Here's to another year of blogging!

It's Our Fault, But You Have to Fix It.

The Texas Court of Criminal Appeals admitted an error last week in the case Ex Parte Rendon.  The error, the CCA explained, was in the format provided for post-conviction habeas applications.  By rule, the  application (whether it be made by an applicant or his attorney) must be sworn to before a notary public (or, if the applicant is incarcerated, an inmate's declaration must be made), but the application form did not include a signature block for an attorney to sign in the presence of a notary public.  Because of this, the applicant's attorney simply signed the application and filed it with the court.  The CCA concluded that the application was not properly verified, but recognized that the fault lied with the court and its form, not with the applicant or his attorney.

The CCA gave instructions on how to correct the error in the future, but dismissed the application (without prejudice) and advised the applicant that he could refile using the clarified procedure if he wants to have his application considered.  What?  Seriously?  The CCA accepts responsibility for the error in the application, but dismisses the application and makes the applicant refile?  Why not just consider the application now?

Judge Johnson expressed similar shock at the Court's opinion HERE.  In her dissenting opinion, she states:

The difficulty in this case arose because this Court’s prescribed form for an application for a writ of habeas corpus did not require what is now held to be required.  Today we change the rules, yet hold an applicant, who properly filed his application on the old form, to the new rules.  On a basis of which he had no knowledge, we now dismiss his petition and tell him to refile. This strikes me as unjust. This Court’s form created the problem, and this Court should not use that court created problem to place a new burden on this applicant and other applicants who, as of the date of the issuance of the Court’s opinion, had properly filed applications on the old form.

"Actual Innocence" Means More Than You Might Think

In 1987, William R. Wilson pled guilty to felony DWI, enhanced by two prior DWIs that he received in 1986 and 1983.  Finding him guilty of third-degree felony DWI, the court sentenced him to be fined $750 and to four years’ probation (which I think is ridiculously low for a 3rd-time DWI, but that’s beside the point).  Less than one year after he was placed on probation, the State sought to revoke the probation and issued a warrant for Wilson’s arrest.  Somehow, he stayed under the radar, eluding arrest for over 19 years until he was finally arrested.  Curiously, when he was arrested, he had changed his name.

In response to his arrest, Wilson filed an Application for Writ of Habeas Corpus claiming that his prior conviction and sentence was “unlawfully obtained.”  He argued that because one of the DWI convictions that the court used for enhancement was not final, he could not be convicted and sentenced to third-degree felony DWI.  The trial court agreed with Wilson and ordered that his 1986 conviction and sentence for felony DWI be vacated.

The State appealed the decision to the 1^st District Court of Appeals (Houston), contending that evidence that a prior conviction is not final is not “newly discovered evidence,” but merely newly discovered law (on the part of the defendant).  The State further argued that under a contract theory, Wilson received the benefit of the plea bargain and should now be estopped from challenging the contract on appeal.  The Court of Appeals wasn't buying it and affirmed the trial court’s order vacating the conviction and sentence.

On State’s petition for discretionary review to the Texas Court of Criminal Appeals, the State again asserted that this is not a case of “actual innocence,” but rather ignorance of the law.  The CCA, however, explained that:

For the purpose of this case, and other pending cases in which the issue is the offense of which the accused is, in fact, guilty, the sentence assessed, or both, we will interpret a claim of “actual innocence” to mean “guilty only of” a lesser-included offense or “ineligible for” the sentence assessed, or both.

With that, the CCA clarified that the courthouse doors are open for the habeas applications of not only those appellants that claim “actual innocence,” but also those appellants that may have been “ineligible for” the sentence they received (due, in many cases, to the questionable competence of their trial counsel).


Regarding the issue of estoppel, the CCA held:

Regardless of any benefit that may have accrued as a direct result of the plea agreement, when a defendant has been convicted of an offense for which he claims that he is actually innocent, and he proves it, he will be relived form the restraint of the conviction even though he may have pleaded guilty and confessed…Although appellee may have pled guilty to the felony offense pursuant to a plea agreement, the trial court correctly relieved him from the restraint of the conviction.

One is “Ouch,” the Other is “Yuck.”

Last week, in McKithan & Welsh v. State, the Texas Court of Criminal Appeals held that, under the cognate pleadings approach to one-step lesser-included-offenses (see Hall v. State, 225 S.W.3d 525), offensive contact assault IS NOT an LIO of bodily-injury assault.  Writing for the majority (there were no dissenters, but some judges concurred), Judge Hervey penned a 19-page history on the evolution of Texas’ approach to LIOs.  I found the opinion long and not particularly interesting.

Apparently, I was not alone.  Attempting to wade through the mess of the majority opinion, Judge Cochran wrote a concurring opinion (joined by Judge Holcomb), wherein she simplified the issues and holding.  Here’s her view of the case:

I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.  One damages the body, the other damages the mind, emotions, or sense of well-being.  One is the intent to cause a physical injury, the other is the intent to cause a psychic injury.  One is “ouch,” the other is “yuck.”

Takeaway:  Assault by offensive contact is not a lesser-included offense of Assault by bodily injury.  The legislature intended to create completely separate theories of criminal conduct when it drafted sections 22.01(a)(3) and 22.01(a)(1).

Jurors Refuse to Consider Minimum Punishment - CCA Reverses the Case

During voir dire in an aggravated sexual assault of a child case, the defense attorney posed the following question to each venire panel member individually:

I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child.  They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital…Could you honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment?

Responding to that question, more than 50 of the panel members indicated that they could not consider the minimum punishment.  The defense attorney did not ask any further clarification or rehabilitation questions on this subject.  It is important to note, however, that prior to the defense attorney's questioning, the trial judge and the prosecutor fully explained that jurors must consider the entire range of punishment.

The defense attorney challenged all of the venire members that indicated they could not consider the minimum punishment, but the trial judge denied most of his challenges.  Several of the challenged panel members were ultimately seated as members of the jury, which returned a guilty verdict and a 20-year prison sentence.

On appeal, the 2^nd District Court of Appeals (Fort Worth) held that the trial judge abused his discretion in not excusing the challenged panel members.  The Court of Criminal Appeals, in a unanimous opinion released this week, (Cardenas v. State) affirmed the holding of the 2^nd Court.  In so holding, the CCA explained:

Jurors must be able to consider both a situation in which the minimum penalty would be appropriate and…a situation in which the maximum penalty would be appropriate.  Therefore, both sides may questions the panel on the range of punishment and may commit jurors to consider the entire range of punishment for the statutory offense.  A question committing a juror to consider the minimum punishment is both proper and permissible.

The CCA went on to distinguish between proper and improper commitment questions, noting that:

A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment, but the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.   (See Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001))

Takeaway:  Nothing new here.  Questions like the one asked in this case are common for defense attorneys.  If a venire member cannot consider the minimum punishment, the trial court should ALWAYS exclude them from the panel.  Period.

Anonymous Payphone Call Creates "Reasonable Suspicion"

U.S. v. Gomez, United States Court of Appeals for the Fifth Circuit (released Oct. 7, 2010)

In Gomez, the Federal Fifth Circuit Court of Appeals looked at whether an anonymous call (from a payphone) can create "reasonable suspicion" sufficient to justify a traffic stop.  Under Terry v. Ohio, 392 U.S. 1 (1968), “police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot.”  When the officers conducting the stop act without a warrant, the Government bears the burden of proving reasonable suspicion.

In this case, the Court identified the factors that must be considered in deciding whether a tip provides reasonable suspicion to support a traffic stop, which include:

(1) the credibility and reliability of the informant;
(2) the specificity of the information contained in the tip or report;
(3) the extent to which the information in the tip or report can be verified by officers in the field; and
(4) whether the tip or report concerns active or recent activity.

The Court held that the 9-1-1 call in this case satisfied three of the four factors.  Specifically, the caller provided an extraordinary amount of detail regarding the suspect brandishing a pistol, to include: the color of the weapon, the location of the crime, details about the suspect’s race, age and weight, the make, model, and license plate number of the suspect’s vehicle, and the race and gender of the other passengers in the vehicle. Officers were subsequently able to verify a number of these claims, to include: all of the vehicle information, the race and gender of the other passengers, and to an extent, the location, as the car was stopped heading away from the scene of the crime a few minutes after the 9-1-1 call.

As to the remaining factor, the caller gave his name, phone number and address to the 9-1-1 operator. Although the address and phone number led to a pay phone, the court held that the officers reasonably believed that they were acting on a credible and reliable tip from a verifiable source rather than an "anonymous tip." The court noted that even if the caller were to be considered an “anonymous tipster” the officers still had reasonable suspicion to support the traffic stop based on the strength of the other 3 factors.

Beware of the Last-Minute Enhancement!

If your client has a prior conviction, it is more likely than not that the State will attempt to “enhance” the current case if it can.  Typically the State will plead the enhancement provision in the indictment, so that your client is on notice of the possibility that his sentence (if he is ultimately convicted) may be enhanced to a higher level crime.  But what if the jury convicts your client of the lesser-included offense, such that the particular enhancement doesn’t logically apply?  Can the State still seek to enhance the LIO conviction?

The Texas Court of Criminal Appeals recent decision in Pelache v. State indicates that, YES, the State can enhance the LIO conviction with other qualifying convictions (even if it didn’t notify your client in the indictment!).  I’m not going to get into the specifics of enhancements in this post.  You can read the case if you want a high level of detail.  I’m here with the highlights.  

In Pelache, the defendant was charged with the 2^nd degree felony offense of robbery.  In the indictment, the State included an enhancement count alleging that he had been previously convicted of an aggravated robbery.  Thus, if appellant was convicted on the current robbery charge, his sentence could be increased to the range of a 1^st degree felony.  Knowing this, the defendant refused a plea deal and proceeded to trial where he was convicted of the LIO of theft from a person (a state-jail felony).  Because he was convicted of the LIO, the enhancement count that the State included in the indictment did not apply.

However, after the trial concluded and less than a week before the sentencing hearing, the State filed a notice with the Court, indicating that it was seeking to enhance the state-jail felony conviction with two other felony convictions.  The defendant objected to the last-minute enhancement notice, arguing that it violated his right to due process.  The State pointed out that the notice of the enhancement need only be given “prior to sentencing” and the trial court allowed the sentenced to be enhanced to a 2^nd degree felony.  The trial judge then sentenced the defendant to 20 years, the upper end of the enhanced range (2 to 20).

On appeal, the 13^th District Court of Appeals (Corpus Christie) held that the defendant’s federal due process rights were violated by the late notice of the State’s intent to enhance the conviction.  That would be a short-lived victory for the defendant.  Last week the CCA, on State’s petition, reversed the decision of the 13^th Court, holding:

[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution…We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under section 12.35(c)(2)(A) and under section 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail felony offense of theft from a person.

Judge Meyers dissented without opinion.

Takeaway:  The State can seek enhancements at any time prior to sentencing.  Enhancements may apply to the charges offense or the LIOs.  Advise your clients accordingly.

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. 

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. 

Two Bites at the Apple for Indecency with a Child?

Ex Parter Amador - Tex. Crim. App. (Oct. 13, 2010)

Appellant pled guilty to and was convicted of indecent exposure after he was seen pleasuring himself in a public playground in El Paso.  Apparently not satisfied with the outcome of the first case, the State later attempted to prosecute him a second time for his actions, but this time under the offense of indecency with a child by exposure.  Appellant complained that the second indictment violated Double Jeopardy as he had already been convicted of an LIO for this same conduct.  Although the trial court and 8^th District Court of Appeals did not agree with him, the Texas Court of Criminal Appeals came to his rescue.

Writing for the 5-4 majority, Judge Holcomb explained:

[D]ouble jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense…The Supreme Court has clearly stated that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”

The question then became whether the Indecent exposure under Section 21.08 is actually an LIO of Indecency with a child by exposure under Section 21.11(a)(2)(A).  The CCA has previously held, in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979), that it is.  The majority took this opportunity to reaffirm that holding, stating:

Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who “will be offended or alarmed” by the defendant’s act, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not “offended or alarmed” by the defendant’s act.

Judge Cochran joined the majority, but also drafted a short (and particularly humorous) concurring opinion, wherein she emphasized:

A defendant cannot be convicted of indecent exposure for “wagging his weenie” at 9:00 a.m. in the local park and then later be prosecuted for that very same act of “wagging his weenie” by charging him with indecency with a child by exposure.  

She went on to use the phrase “wagging his weenie” two additional times in her opinion.  Perhaps the result of a dare or a lost bet?  Don’t ask me.

In a 21-page dissent, Presiding Judge Keller, joined by Judges Keasler and Hervey would hold that

an indecent –exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims.

Judge Womack also dissented, but did not join Presiding Judge Keller’s opinion.  The majority reminds the dissenters that even thought the State can charge the defendant with the greater and lesser-included offense, the defendant cannot be convicted of and sentenced for both.  Presiding Judge Keller and the band of dissenters want two bites at the apple, even though the U.S. Constitution and the Supreme Court say you only get one.

Takeaway:  The rule, as announced in 1979 in Briceno, remains – Indecent exposure is an LIO of Indecency with a child by exposure under the Texas Penal Code.  A defendant cannot be convicted of and sentenced for both if the underlying conduct is the same.

CCA Expands the “Plain View” Doctrine, Erodes 4th Amendment Protection

Sound the alarms!  Fourth Amendment protections in Texas have been diminished by the Court of Criminal Appeals latest opinion in State v. Dobbs.

The “plain view” doctrine, as explained by the U.S. Supreme Court, provides that

A police officer who is lawfully on private premises pursuant to a warrant (or some legitimate exception to the Fourth Amendment requirement of a warrant) may also seize anything he discovers in plain view on those premises if it is ‘immediately apparent’ to him – this is to say, if he has probable cause to believe – that it constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure.

Minnesota v. Dickerson, 508 U.S. 366 (1993).  Expounding on this principle, the CCA, in White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987), held that

when police officers lack probable cause to believe items in plain view are contraband at the very instant they first see them, they must have probable cause to conduct any further investigation specifically designed to develop probable cause to authorize their seizure of those items.

However, as the CCA now holds, White is no longer good law.  In State v. Dobbs the CCA announced a new rule expanding the plain view doctrine to give law enforcement officers time to conduct further investigation into suspicious items that may not be ‘immediately apparent’ as contraband.

In Dobbs, officers were conducting a lawful search of appellee’s home when they discovered two sets of new golf clubs and several golf shirts having the name of a local country club stitched in them.  It was undisputed that the officers lacked probable cause to believe these items were contraband at the time they saw them in plain view (i.e. All parties agreed that the officers could not lawfully seize the items at the time they saw them).  Finding the items suspicious, however (perhaps the suspect did not look like an avid golfer?) the officers made a call to find out whether the country club had recently reported a burglary.  Once it was confirmed that the country club had, in fact, reported a burglary of golf clubs and golf shirts, the officer seized the items as evidence of a crime.

Prior to trial, appellee moved to suppress the items as fruits of an unlawful search, arguing that because the officers did not have probable cause to believe that the golf clubs and shirts were contraband at the instant they saw the items, the seizure of the same was unlawful.  The trial court, relying on the CCA holding in White, agreed and granted the motion to suppress.  The State appealed to the 5^th District Court of Appeals (Dallas) which affirmed (again, based on White).  Like a Jack Russell Terrier with a never-say-die attitude, the State appealed again to the CCA, arguing that the Court’s prior holding in White overextended the legitimate scope of the Fourth Amendment. 

The CCA re-examined its holding in White and decided that it had indeed overextended the scope of the Fourth Amendment.  The CCA explained:

We now hold that, so long as probable cause to believe that items found in plain view constitute contraband arises while police are still lawfully on the premises, and any further investigation into the nature of those items does not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items is permissible under the Fourth Amendment.

The CCA further explained that its holding only applies to those cases wherein the officers further investigation does not incrementally impinge upon any protected privacy or possessory interest of the defendant.  For instance, if the officers in this case had seized the golf clubs and shirts and then called to investigate, the plain view exception would not apply.  

The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant.  So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised—but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

NEW RULE:  Under the plain view doctrine, “immediately apparent” simply means that the viewing officers must have probable cause to believe that an item in plain view is contraband before seizing it.  Gone are the days when the officers must have such a belief at the moment they see the item.

Commentary: I agree with the court’s holding in this case so long as it doesn’t become of small step toward further erosion of the 4th amendment. The court’s reasoning is logical. The potential problem is in drawing the line regarding the length of time an officer may remain on the premises to investigate “suspicious” items that are not immediately apparent as contraband. If courts construe this rule too broadly, we could end up seeing officers just hanging around making calls to establish the plain view exception.

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.

Stealing From Inside the Museum - Egyptian Artifacts Theft in Long Island Proves the Point

Loss prevention at a museum starts by examining internal practices. When pieces are missing from a museum, the first place to look for a suspect is inside. Fortunately, a museum's risk can be reduced by performing thorough background checks on prospective employees and by creating moderate institutional oversight practices.

While the vast majority of museum employees are honest and trustworthy, there are many unfortunate instances where missing objects turn up in the hands of museum workers. Last week the New York Post reported that a federal court sentenced the director of the Long Island University Hillwood Museum to a year and a day in prison plus a $5000 fine for stealing Egyptian artifacts from his own museum. Barry Stern admitted to exacting revenge on his employer when his contract as museum director was not renewed. He worked 22 years for the university.

The Post describes how Stern stole the artifacts from the museum, brought them to Christie's for auction, and claimed they came from the Barry Stern collection. Records of the objects' existence at the Hillwood Museum were wiped out. The pieces earned Stern $51,500.

(As a side note, one wonders how the auction house failed to conduct enough due diligence regarding the provenance of the objects, particularly where the pieces presumably had accession numbers associated with the objects.)

The International Foundation for Cultural Property Protection helps cultural institutions minimize the risk of theft. Any of our colleagues can assist museums with internal loss prevention. www.ifcpp.org


Read more: http://www.nypost.com/p/news/local/li_museum_director_sentenced_for_m8ewK4q1OIOWlINeCC4BRN#ixzz13BvQpl1L

CCA Applies Estoppel Theory to Defendant Whose Counsel Helped Draft the Defective Jury Charge

Below are of few of the recently reported slip opinions from the Texas Court of Criminal Appeals that were designated for publication.

Defective Jury Charge on LIO
Woodard v. State - The defendant was indicted for murder but somehow convicted of an unindicted offense of conspiracy to commit aggravated robbery.  On appeal, he claimed that the trial court erred by instructing the jury on the conspiracy offense because, under the Almanza  factors, conspiracy to commit aggravated robbery is not a lesser included offense of murder.  The CCA concluded that if appellant had simply failed to object to the jury charge, he would be entitled to reversal under Almanza, but because the appellant actually helped draft the objectionable jury charge, the CCA applied an estoppel theory.

Our [past cases have] recognized that, if “the record showed that the appellant requested the charge on the [unindicted] lesser offense . . ., he would be estopped from complaining of its inclusion in the charge.” We believe that the record in this case fairly reflects that, at the very least, appellant had some responsibility for the jury instruction on the unindicted conspiracy to commit aggravated robbery offense.  The record reflects that appellant helped prepare the charge, including the instruction related to the unindicted charge of conspiracy to commit aggravated robbery, to which the State unsuccessfully objected.  This is a great deal more than just simply not objecting to the charge or just stating “no objection” to the charge.  Under these circumstances, we decide that appellant may not be heard to complain for the first time on appeal that the trial court erred to instruct the jury on the unindicted conspiracy to commit aggravated robbery offense.

In her concurrence, Presiding Judge Keller would take this case one step further and and adopt the doctrine of beneficial acquiescense, "by which a defendant who fails to object to an instruction on a LIO would be estopped from complaining on appeal." (Emphasis added).

Simply to note how curious she finds this case, Judge Cochran also concurred.



Capital Murder (Accomplice Liability)
Padilla v. State - CCA affirms appellant's conviction for capital murder as legally/factually sufficient under an accomplice theory of liability.

If You Want Your Art Back, Be Mindful of the Statute of Limitations

The First Circuit Court of Appeals decided the case of Museum of Fine Arts, Boston v. Seger-Thomschitz on October 14, 2010. Claudia Seger-Thomschitz, the heir of art collector Oskar Reichel, contacted the Museum of Fine Arts to reclaim Two Nudes by Oskar Kokoschka. Seger-Thomschitz argued that the painting left the hands Reichel because of Nazi coercion.

The Museum of Fine Arts spent 18 months researching the issue and concluded that Reichel sold the painting voluntarily. The Boston Globe published criticisms of this view in a May 2008 article. Nevertheless, the MFA sought an order from federal district court declaring that the museum legitimately owned the painting. The lower court ruled that the MFA rightfully owned the painting, and the court of appeals has now affirmed this decision.

The basis of the court of appeal's opinion is threefold. First, the district court's grant of a favorable judgment for the museum was proper on statute of limitations grounds because Seger-Thomschitz did not make a demand on the MFA within the three years statute of limitations under Massachusetts law. Second, the appeals court rejected Seger-Thomschitz's weak claim that the statute of limitations should bend in the wake of the non-profit section of the federal Internal Revenue Code [501(c)(3)]. Third, the court rejected her argument that the Massachusetts statute of limitations conflicted with America's foreign policy as expressed through the Holocaust Victims Redress Act of 1998, the Washington Conference Principles on Nazi-Confiscated Art, the Vilnius Forum Declaration, and the Terezín Declaration on Holocaust Era Assets and Related Issues. These proclamations are aspirational and not law, the court essentially declared.

The message in this case is clear: Where a party believes that art is improperly in the hands of another, the claimant must be conscious of the statute of limitations clock and perform the necessary due diligence to start a cause of action.

Two Nudes can be seen at http://www.mfa.org/collections/search_art.asp?recview=true&id=34173&coll_keywords=&coll_accession=&coll_name=two+nudes&coll_artist=Kokoschka&coll_place=&coll_medium=&coll_culture=&coll_classification=&coll_credit=&coll_provenance=&coll_location=&coll_has_images=&coll_on_view=&coll_sort=2&coll_sort_order=0&coll_view=0&coll_package=0&coll_start=1

"Holocaust Historians Blast MFA Stance in Legal Dispute," The Boston Globe, May 28, 2008 at http://www.boston.com/ae/theater_arts/articles/2008/05/28/holocaust_historians_blast_mfa_stance_in_legal_dispute/

County Attorney’s Conviction for Improper Influence Upheld by CCA

In Isassi v. State, the Kleberg County attorney, who made several phone calls to an assistant district attorney (and others) in an effort to have a criminal case against his aunt dismissed (while failing to disclose that the criminal defendant was his aunt), was convicted by a jury of the misdemeanor offense of “improper influence” (Section 36.04 of the Texas Penal Code). 

Section 36.04 provides that a person commits the offense of improper influence:

If he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on that basis of consideration other than those authorized by law.

On appeal, however, the 13^th District Court of Appeals (Corpus Christie) reversed the conviction, holding that the evidence was legally insufficient to show that Appellant’s calls were made with the intent to influence the outcome of the criminal proceeding.  Deferring to the jury’s findings, the CCA reversed the 13^th Court.  In doing so, the Court explained,

Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally.  The conduct [of the County Attorney] itself might be lawful, but if it was performed for an improper purpose, it falls within the criminal statute.  As Justice Holmes once noted, ‘Intent may make an otherwise innocent act criminal, if it is a step in a plot.’

In this case, after his aunt had been arrested (for evading arrest) the Appellant (County Attorney) called the assistant district attorney to whom the case had been assigned and informed her that the arresting officer was under investigation and that the State would not proceed with the case against his aunt (but he didn’t explain that she was his aunt).  The district attorney promised to look into it.  Appellant then called an officer with the county pretrial services (where his aunt had been ordered to report) and inquired about whether his aunt need report because the assistant district attorney was not going to pursue the case.  Despite his best efforts to convince all involved that the case shouldn’t proceed, Appellant’s aunt was indicted and convicted (pursuant to a plea agreement).  As a reward for his efforts, Appellant was convicted of 2 counts of improper influence for his interference with his aunt’s case.

On this issue of first impression in Texas, the Court of Criminal Appeals held:

If appellant’s motive and intent when he made these phone calls was to benefit his aunt by short-circuiting her prosecution for evading arrest, that was ‘an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.’ The law does not authorize the dismissal of criminal charges or the avoidance of standard bond conditions based upon the defendant’s familial or personal relationship to another, be it a judge, county attorney, or other official.

Appellant’s intent at the time he made these telephone calls was a matter for the jury to decide as a question of fact, taking into account all of the evidence and the credibility of the witnesses. (Translation: The 13^th Court needs to get out of the jury box.)  [T]he jury, in this case, reasonably and rationally concluded, beyond a reasonable doubt, that appellant had the intent to improperly influence the outcome of his aunt’s criminal case on a basis not authorized by law.

With that, a majority of the CCA reversed the case.

Just after the CCA kicked the 13^th Court out of the jury box, Presiding Judge Keller, joined by Judges Price and Holcomb, jump right back in.  In her dissent, Presiding Judge Keller writes:

If a defendant tries to get his aunt’s case dismissed because he wants to help his aunt, has he committed a crime? The Court says yes. I disagree. I think it is what the defendant says, not what he thinks, that makes an attempt to influence a public servant improper.

Unfortunately, for the dissenters (and the Appellant) the majority of the Court chose to follow the law and defer to the factfinders on this factfinding issue.

How Did That Get There?

U.S. v. Gonzalez-Rodriguez - the 5th Circuit (Federal) took a look at what to do when drugs are hidden in a compartment of an indivudal's vehicle.

The Court explained that generally, a jury may infer that a defendant has knowledge of drugs in a vehicle when the defendant exercises control over the vehicle. However, when drugs are hidden in a secret compartment, guilty knowledge may not be inferred solely from the defendant’s control of the vehicle because there is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. In secret compartment cases, this circuit requires additional circumstantial evidence that is suspicious in nature and demonstrates guilty knowledge.

In this case there was sufficient suspicious circumstantial evidence to support the defendant’s conviction. First, a packing house manager testified that it would have been almost impossible for the methamphetamine to be loaded into the defendant’s trailer without detection at the warehouse where the load originated. Second, a witness testified that it would have been extremely difficult to unload the drugs from the trailer at the destination warehouse without detection. Third, there was a suspicious gap in time, from the time the defendant left the original warehouse, until the time he arrived at the Falfurrias immigration checkpoint where the Border Patrol Agents discovered the drugs. Fourth, the defendant had a key to the lock on the trailer and was able to open the trailer at the checkpoint. Finally, the 312.5 pound of methamphetamine that was seized was worth between ten and forty million dollars. A jury could reasonably infer that the defendant would not have been entrusted with such a large amount and high value of methamphetamine unless he knew he was part of the drug trafficking scheme.

CCA Upholds Death Sentence for Coble

Billie Wayne Coble was convicted of capital murder in 1990 and sentenced to death.  In 2007, the 5th Circuit Court of Appeals (federal court) granted habeas relief and remanded the case for a new trial on sentencing.  A second jury sentenced Coble to death and now the CCA affirms that sentence.  The opinion is 68 pages long and I'm sure it is chocked full of interesting material, but I don't have time to peruse it now.  For those of you that are interested, you can get the full opinion HERE.  Presiding Judge Keller concurred HERE.