A Good Custodial Interrogation String Cite

Everybody loves a good string cite.  You know, when the court wants to consolidate lots of authority for its position, but doesn't actually want to write about the cases, so it simply lists a string of case citations with a parenthetical one-line synopsis of the relevant holding.  In reading Campbell v. State, yesterday, a case out of the 2nd District (Fort Worth) regarding custodial versus non-custodial interrogations and Miranda warnings in a DWI context, I came across a good string cite and I thought I'd share it. 

To give some context, the court is in the process of determining whether Appellant's statements to police officers both prior to and after being placed in handcuffs should be excluded under article 38.22 of the Texas Code of Criminal Procedure or Miranda, when it provided this smattering of applicable Texas caselaw on the subject:

• Alford v. State, 22 S.W.3d 669, 671–72 (Tex. App.—Fort Worth2000, pet. ref’d) holding that appellant was in custody when he was stopped, placedon the ground, and handcuffed, and his response, that he had had six beers, whenasked if he had been drinking by an officer who arrived on the scene seven minutes later, should have been suppressed since he was not given his Miranda warnings;
• Jordy v. State, 969 S.W.2d 528, 531–32 (Tex. App.—Fort Worth 1998, no pet.) holding that appellant was subjected to a custodial interrogation following a traffic accident when he laid down on the ground and the officer called an ambulance before asking appellant how much he had had to drink, to which appellant replied,“A lot.”
• Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App.) cert. denied, 522 U.S. 894 (1997) holding that incident was temporary investigative detention when officer testified at suppression hearing that he was not arresting Rhodes when he handcuffed him and that he handcuffed him primarily out of concern for officer safety—it was dark, the area was high-crime, and officer was alone with suspect;
• Arthur v. State, 216 S.W.3d 50, 53, 57–58 (Tex. App. --Fort Worth 2007, no pet.) holding that appellant’s statements were not a product of custodial interrogation when officer saw appellant’s vehicle drifting and speeding, initiated a traffic stop and asked some questions about whether she had had anything to drink which she answered inconsistently and in a loud, moderately slurred voice and administered three sobriety tests and a portable breath test before arresting her;
• Hernandez v. State,107 S.W.3d 41, 47–48 (Tex. App.—San Antonio 2003, pet. ref’d) concluding that appellant’s statement that he had consumed nine beers was made during investigatory detention after officer saw appellant speeding and weaving between lanes without signaling, pulled him over, noticed the smell of alcohol and appellant’s bloodshot eyes, and administered three field sobriety tests, all prior to full custodial arrest;
• Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.—Houston [1st Dist.]2003) concluding that it was reasonable for the officer to secure appellant in handcuffs when appellant was uncooperative and belligerent, so that officer could complete his DWI investigation, rev’d on other grounds, 138 S.W.3d 331 (Tex. Crim. App. 2004);
• Lewis v. State, 72 S.W.3d 704, 708–13 (Tex. App.—Fort Worth 2002,pet. ref’d) distinguishing Jordy and Alford as presenting “other circumstances”requiring Miranda when their facts went beyond the roadside questioning and sobriety tests found in DWI temporary investigation cases.

There you have it.  If you have a custodial interrogation issue in a DWI case, you now have a jumpstart on your legal research.  Thank you 2nd Court of Appeals.

Gang-style art theft: Caravaggio recovered from criminal group

Ukrainian and German police recovered a Caravaggio that had been stolen from a museum in Odessa in 2008. “The Taking of Christ” was found in the hands of a criminal group that deals with high value theft. Such reports reinforce our knowledge that organized criminal activity is involved with art crime. Authorities must aggressively uncover the relationships between criminal networks and art crime in order to combat this large, global problem that funds other crimes. Today's recovery by police is welcome news.

Mineola Swingers Cases "Rife with Error"

Last week the 14th District Court of Appeals (Houston) released three opinions in the "Mineola Swingers" cases.  These cases involved three co-defendants who were convicted of child sexual abuse and organized crime for teaching children how to engage in sexual conduct and then taking the children to perform sexual acts publicly in front of a Swingers club.  Sick, I know.  So thought the trial court, because, as the 14th Court points out:

the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding [the defendant's] ability to defend himself.

Of the three cases released last week, Mayo v. State was modified and affirmed, while Kelly v. State and Pittman v. State were reversed and remanded.  Some of the pertinent reasons for each decision are contained below.

Mayo v. State -- Appellate decision hinged not on the evidence adduced at trial or the State's method of proving the case, but rather on a jury instruction and the a cumulation of sentences issue.  In giving a venue instruction regarding the sufficiency of proof, the trial court relied on previaling Texas caselaw rather than statute.  The CCA, however, held in 2003 that "Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis."  Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).  The appellate court found this error to be harmless.  What the appellate court did not find harmless, however, was the trial court's ordering of appellant's convictions for child sexual abuse and organized crime to run consecutively.  Noting that "Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively" and "organized crime is not one of the enumerated offenses,"  the appellate court modified the judgment to reflect "that appellant's life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child."

Kelly v. State -- To summarize this case in a few lines, the appellate court stated:

Although the evidence is legally sufficient to support appellat's conviction, the record is rife with error.  Many of these errors did affect appellant's substantial rights.  Therefore we reverse and remand for a new trial.

Of appellant's 43 issues presented on appeal, here are some of the highlights for which the Court reversed the case:

• The trial court denied the defendant the opportunity to present a meaningful defense by preventing him from pursuing the trial theory that the child victims' foster parents, who had recently been accused of child sexual abuse in CA, coached the victims to lie against the defendant in order to shift the blame from the foster parents.
• The trial court improperly allowed the State to introduce evidence that the 2 co-defendants were convicted and sentenced to life in prison for their involvement in the sex sting.
• The trial court allowed a mountain of hearsay statements of the outcry witness through an investigator who recounted the statements as fact even though he was not present for any of the statements.
• The State's witness on "child grooming" was not an expert and should not have been allowed to testify as such.

These errors (and more) contributed to the Court's reversing and remanding the case for a new trial.  Perhaps next time around the trial court will simply conduct the trial within the confines of acceptable trial practice and evidentiary rules, because, as the Court noticed, "the evidence [was] legally sufficient to support appellant's conviction."  I'm sure the Court could have engaged in some mental gymnastics to uphold this conviction, but it decided to require a cleaner record from the trial court.  Either way, this decision signals small shift toward maintaining a legal and respectable justice system in Texas.

Pittman v. State -- The Court reversed and remanded due to the trial court's abuse of discretion in allowing the State to introduce numerous extraneous offenses (drug use, sexual acts with other children, etc.) which were highly prejudicial when appellant was charged with sexual abuse of only one child.  In reversing the conviction, the Court stated:

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children.

It appears the State has some work left to do in these cases.

DWI Blood Draws - "The most important decision we make all year."

Here are a couple of recent published decisions from the Courts of Appeals regarding the taking of blood samples for suspicion of DWI.

We'll begin with State v. Robinson – (10th District – Waco), June 16, 2010.

In this case, the Court upheld the trial court’s suppression of blood test results because (arguably) the State did not comply with the requirement under section 724.017(a) of the Texas Transportation Code that “only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse…take a blood specimen at the request or order of a peace officer.” The defendant, who had the initial burden to produce evidence that the statute was violated and that the evidence should be excluded, apparently shifted his burden to the State and the trial court ultimately held that because the State could not produce credible evidence that an actual nurse drew the defendant’s blood, the test results should be excluded.

Chief Justice Gray “strongly dissent[ed],” characterizing this case at the “certainly the most important decision” the Court has made “in a criminal case this year.”  He notes from the outset that "the hearing was before a county judge who would not be expected to be fully in tune with the niceties of a shifting of the burden of proof."

It is clear that the trial court placed the burden of proof to show that the blood draw was performed in compliance with the statute, Texas Transportation Code section 724.017, on the State, failing to prove such the trial court was going to suppress the blood evidence. Specifically, the trial court was focused on the fact that the State had not provided to the court’s satisfaction that the person who drew the blood was qualified as required by the statute.

Highlighting what he sees that the important practical implications of this decision, Chief Justice Gray writes:

If all a defendant has to do is to move to suppress evidence and then the State must go forward to prove the evidence was lawfully obtained, we can expect to see an even greater number of these motions and related appeals. A defendant can essentially file a motion in every case and the State will have to defend the manner in which the evidence was obtained. Thus, the presumption of proper police conduct is destroyed.

I'm with Chief Justice Gray on this one.  A thin record and an illogical burden shift should have made this case a winner for the State.  Discretionary review, perhaps?

Now onto State v. Jordan – (3rd District – Austin), June 17, 2010.

In Jordan the Court held that the affidavit for a search warrant to obtain Appellant’s blood sample for suspicion of DWI was deficient as it failed to allege the specific date and time the officer observed the conduct giving rise to the arrest. The State argued that because the blood was drawn at 4:20 am on June 6, 2008, the same day as the affidavit was signed, then no more than 4 hours and twenty minutes could have elapsed since the time of the observed conduct and the taking of Appellant’s blood. The Court, however, was not persuaded that the alleged offense and the completing of the affidavit occurred on the same day. Suppression of blood results affirmed.

Crime Stoppers Privilege

The Crime Stoppers Privilege: “Evidence of a communication between a person submitting a tip to a crime stoppers organization is not admissible in a court proceeding except as provided by statute.” Proctor v. Texas,  (1st Dist. - Houston).

The aim of the “crime stoppers privilege” is to encourage someone to provide a lead that will help identify those responsible for crimes. Texas has actually codified the crime stoppers privilege in Tex. Gov’t Code Ann. 414.008(a).

The privilege was challenged by the appellant in Proctor v. Texas. Proctor wanted an in camera review (and potential disclosure) of the identity of the person who had provided the tip that lead to his conviction. Proctor believed that the person who had provided the tip might have been involved in the actual homicide or was somebody that was just being vengeful about Proctor because of some issues between them.

The Texas statute containing the crime stoppers privilege provides that a trial court may subpoena the records of a crime stoppers organization concerning a report of criminal activity on the motion of a defendant who alleges that the records or report contain. Tex. Gov’t Code Ann. 414.008 (b)-(c). The trial court doesn’t, however, have to subpoena the records merely at the request of the defendant. Tex. Gov’t Code Ann. 311.016(1). In order to request the trial court’s subpoena, the defendant must make a plausible showing to the trial court, through sworn evidence or agreed facts, that the crime stoppers records in the possession of the State would be material exculpatory evidence that would create a probability of a different outcome. Wyatt v. State, 23 S.W.3d at 27; Ex parte Mitchell, 977 S.W.2d at 578. Proctor made no showing to the trial court to this effect. The court of appeals held that the trial court was not required in Proctor’s case to subpoena the crime stopper’s records.

So, what did we learn? Well, from the defense side, the Proctor case shows that there may be circumstances that allow the defense to find out the identity of the person providing a tip to crime stoppers. But, remember the defendant must make a plausible showing to the trial court through sworn evidence or agreed facts. Even then, the “may” language of Tex. Gov’t Code Ann. 311.016(1) suggests that the decision to disclose (or even to review in camera) will lie solely within the discretion of the court. For the defense, it’s an uphill battle.

From the State’s side, the Proctor case shows us that just because the defense wants it and asks for it doesn’t mean they’ll get it. The defense will still have hoops to jump through. I think it’s safe to say that given the aim of the crime stoppers privilege a court may not be too quick to throw that information at the defense.

Prosecutor Post - "I use Powerpoint" so Should You.

How does that Dylan song go? “The times they are a changing…” And you better believe it! Whether it be a constant streaming of CSI or unfettered access to an abundance of “interesting” reads on the internet, most people now have preconceived notions of what our legal system should be. Good attorneys recognize this. Heck, all attorneys should recognize this, but good attorney adapt to take advantage of it. Specifically, they are turning to technological advances and discovering new and innovative ways to connect with juries.

In regard to criminal cases, most prosecutors have equipped themselves with a very effective tool. PowerPoint. Okay, it’s not so new, but to many Texas lawyers it might as well have been invented last week. From voir dire to closing arguments, state attorneys have come to realize PowerPoint is so effective that they won’t try a case without it. Why is it so effective? Simple. Our society and the new generation of jurors are visual learners. Speaking alone is no longer the most effective way to reach people, regardless of how engaging or folksy you may be.

Visual presentation is a much more effective way of reaching others and, if you think about it, data and facts that appear in electronic form just seem much more convincing. You not only tell someone X and ask them to trust you, you also show them X on a fancy big screen TV. By accessing two of their senses simultaneously, you double the odds of reaching your audience.

I know, I know, you have probably imagined that if you use PowerPoint, the jurors eyes are likely to glaze over – death by PowerPoint, as they say. But, speaking from experience, it’s not true. Of course, if you put volumes of text on the screen and simply read from the screen, PowerPoint is likely not going to be very effective for you. You still have to bring your advocacy skills to the table – PowerPoint is simply a way to bring your argument to life.

You might be concerned about trying something new, but rest assured there are many who have faced the challenge of learning PowerPoint and found the ability to not only use it, but master it. Like anything else, there are numerous resources available to assist in learning the software. And yes, the software and any tutorial materials will cost money. But you can’t afford to opt out and stick with your easel and oversized flip charts.

What impression do you think is given when you walk into court with a marker board while the prosecutor has his laptop fired up and his PowerPoint presentation rearing to go? Don’t put yourself in that position. This tool is as accessible to you as it is to anyone. And yes, it may be new to you and a bit uncomfortable. But it will only stay that way for a little while. After using it a couple of times, you’ll probably find yourself wondering how you ever tried a case without it…

For those of you new to the PowerPoint game, here’s a few tips to make your presentation stand out:

1. Start with a black (or otherwise dark) background. Studies show that people can more easily read white text on a black screen than vice versa.
2. Use effective titles on each slide – some jurors may only give your slide a few seconds of attention. What do you want them to take away?
3. Pace each slide. Don’t present all your information at once. Proceed incrementally. This allows you to argue and it allows jurors to follow your argument as it progresses.
4. Use symbols to portray data. Jurors can understand symbols much faster than listening to spoken word.
5. Avoid messy and overcomplicated charts. Confusing!

Take these tips for what they’re worth. Remember, I’m just a humble prosecutor who barely knows how to check email, but my trial record is good and I use PowerPoint.

Reasonable Suspicion Standard Exists in Name Only in San Antonio

Ask any police officer in San Antonio and I'm sure he can tell you that in order to initiate an investigatory detention, he/she must have "Reasonable Suspicion" that a person is, has been, or will soon be engaged in criminal activity.  Great, at least we know that a standard exists.  The problem, however, is the application of the legal standard to the facts of a particular case.  The problem is that "Reasonable Suspicion" is a conclusory title slapped onto any fact scenario law enforcement happens to encounter.  Well, Justice Rebecca Simmons of the 4th District Court of Appeals (San Antonio) has had enough (at least in one case she did)!

Never has this court upheld an investigative stop based on such a paucity of facts.

These the unflinching words of Justice Simmons' dissent to the Court's denial of a request for an en banc consideration in Martinez v. State.  Chief Justice Stone joined the dissent, which explained:

As a matter of law, the totality of the circumstances did not provide reasonable suspicion for the investigative stop of Martinez. ...I also believe the opinion conflicts with this court’s prior opinion in State v. Simmang, 945 S.W.2d 219 (Tex. App.—San Antonio 1997, no pet.).

Well, let's see.  What exactly was it about this reasonable suspicion stop that so ruffled the feathers of these two jurists?  As a starting point, you must remember that to support an investigative detention, the officer must point to "specific articulable facts, which, 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 engaging in criminal activity."  Texas case law requires that these facts amount to "more than a mere hunch or suspicion."

Here's how the officer explained it at trial:

[based on an anonymous tip] dispatch put out a call that a vehicle had stopped and someone supposedly put some bicycles in the back of a pickup truck in a general area of town.  The caller was simply a passerby.  All I got from the dispatch was a vehicle description (blue Ford pickup) and a male driving the vehicle.  Dispatch repeated twice that the pickup was blue.

First of all, is it illegal to put bicycles in the back of a pickup?  Perhaps, but I put my bicycle in the back of my pickup several times a week. For the sake of argument, let's just assume that this activity is evidence of larceny.  Ok - Got it.  A blue Ford pickup, with some bicycles in the back, driven by a male.  But who did the officer stop? 

He stopped the only Ford pickup he could find in that area of town.  He stopped a male driving a GREEN pickup.  Add to that, the pickup didn't even have any bicycles in it!  And what does this investigatory detention (for a possible larceny, mind you) yield...a DWI conviction.  We can expect that the officer believes he had "reasonable suspicion" initiate the stop (an officer always thinks he has reasonable suspicion), but, as the dissent points out:

Surprisingly, this court concludes [the officer] had reasonable suspicion to stop Martinez...

I must have been traveling this winter when this opinion was released by the Court.  Thankfully, these justices highlighted the Court's questionable reasoning for us.  We'll be sure to keep our eye on this case to see what the CCA has to say.  Even our conservative and prosecution-friendly CCA might reverse this one!

Conspiracy to Conspire?

Here’s a quick update on some cases that were released last week. Links to the cases are provided.

Unquestionable Incompetency
Gonzales v. State, (Tex. Crim. App.), June 16, 2010 – Held: A trial judge is not required to conduct a competency hearing on his own initiative after hearing evidence that, due to alcohol or drug abuse, the defendant suffered amnesia with respect to events giving rise to the charged offense.

Cruel, but not Unusual
Davis v. State, (Tex. Crim. App.), June 16, 2010 – Held: Death sentence affirmed. Appellant raises 11 points of error challenging the propriety of the Texas Death Penalty scheme, including the allegation that death by lethal injection is unconstitutional as cruel and unusual punishment. Having considered and rejected these exact claims in previous cases, the CCA overruled all points of error and upheld the death sentence. (I guess in Texas, the death penalty, while arguably cruel, is by no means unusual.)

A Threat to Society From Behind Bars
Estrada v. State, (Tex. Crim. App.), June 16, 2010 – Held: For a non-parole eligible capital defendant, the relevant question to ask the jury, who is called upon to determine whether the death penalty should be levied, remains “whether there is a probability that the defendant would constitute a continuing threat to society whether in or out of prison.” The CCA rejected defendant’s argument that the issue should be restricted to future dangerousness in prison only (since he would be ineligible for parole). Side note – the death penalty was reversed and remanded on a separate issue (the State presented false and misleading testimony during the punishment phase).

Conspiracy to Conspire
Barrera v. State, (4th Dist.—San Antonio), June 16, 2010 – Held: “Conspiracy to commit aggravated kidnapping” and “engaging in organized criminal activity though conspiring to commit aggravated kidnapping” are not the same offense for double jeopardy purposes. (Truly a technical distinction with which I do not agree. Good thing there isn’t another offense on the books for “engaging in organized criminal activity by conspiring to engage in organized criminal activity”!)

FBI Art Program Presentation in NYC

Theft, Fraud, and Forgery: Cultural Property Crime in the U.S. and the FBI Art Theft Program

When: Thursday, July 22nd, 2010, 2:00 - 5:00 pm
Where: Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019

Description:
Art crime is a multi-billion dollar endeavor that affects collectors, dealers, galleries, museums and artists world-wide. The FBI has investigated these crimes for many years, and five years ago established the Art Crime Team to develop a cadre of Special Agents trained specifically in art crime investigations. Although spectacular thefts from major museums capture the headlines, most art thefts in the U.S. are residential burglaries and art fraud is even more rampant. This talk will cover federal jurisdiction, elements of the U.S. criminal statutes, international treaties and conventions, as well as case studies of recent investigations. Basic strategies for protection of collections will also be covered.

Lecturer:
Bonnie Magness-Gardiner
Bonnie Magness-Gardiner is Manager of the Art Theft Program at the Federal Bureau of Investigation. Headquartered in Washington, D.C., the Art Theft Program was established after the looting of the Baghdad Museum in 2004. Dr. Magness-Gardiner coordinates the work of 13 special agents assigned to various geographic regions, and manages the National Stolen Art File. She received her Ph.D. in Near Eastern Archaeology from the University of Arizona. After teaching archaeology for five years, she entered government service as program manager for the Archaeology Program at the National Endowment for the Humanities then became a program manager for the American Memory Project at the Library of Congress. For eight years she was the Senior Cultural Property Analyst for the Department of State, implementing the 1970 UNESCO Convention against illicit traffic in cultural property. She also served as the program manager for cultural heritage restoration projects in Iraq. She has been with the FBI since 2005.

Registration Fees:

VLA Member Attorney or Arts Professional: $200
Non-Member Attorney or Arts Professional: $250

Attendees must register before July 20th and be on the security list to attend. Seating is limited to 30 people. (There is an additional $25 fee if you register after July 15th.)

*3.0 CLE credits, 1 Professional Practice, 1 Skills and 1 Ethics (Approved for Non-Transitional and Transitional Attorneys)


To register and for more information, please see this registration form, or register via phone at 212.319.2787 x1. For more information please contact VLA's Kathleen Mallaney at 212.319.2787 x12, or via e-mail at kmallaney@vlany.org.

This event is organized and sponsored by Volunteer Lawyers for the Arts.

Fencing the Confrontation Clause

As the Court of Criminal Appeals aptly recognized, "the constitutional right of confrontation includes the right to cross-examine the witnesses and the opportunity to show that a witness is biased or that his testimony is exaggerated or unbelievable."  In the 1974 Supreme Court case Davis v. Alaska, the Court held that evidence that a witness with a juvenile record might be testifying because of a need to "curry favor" with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontation Clause.  However, rather than view this holding as one of inclusion, the CCA decided last week, in Irby v. State, that rather it was one of exclusion.  This recent holding by the CCA stands to significantly hamper the right to confrontation in Texas.

Regarding the right to confrontation of a witness with a prior juvenile record, the CCA held:

the confrontation clause may require the admission of such evidence if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify.  But the mere fact that a juvenile had been placed on probation or had some other vulnerable relationship with the State is not enough to establish bias or prejudice; the cross-examiner must show some causal connection between the witness’s vulnerable relationship and the witness’s testimony.

 Recognizing the potential implications of such a holding, Judge Holcomb dissented (joined by Judges Womack and Hervey), stating:

I believe that we cast a dark shadow on the constitutional right of confrontation by requiring a defendant to establish the kind of “logical relationship” the majority requires before allowing cross examination of a juvenile witness on his pending probationary record to show his possible bias or motive in testifying for the same prosecutorial authority which also supervises his probation. The majority, in my view, misapplies Davis v. Alaska, which clearly held that the constitutional right to question a juvenile witness regarding his pending probationary status trumps any State interest in protecting such juvenile offenders. Denying the defendant any opportunity to cross-examine a critical juvenile witness regarding his possible bias stemming from his probationary relationship with the State constitutes a denial of the right to effective cross-examination.

The Links Test for Narcotics Possession (a.k.a. Roommate Convictions)

What can happen if your rommate, be it husband, wife, boyfriend, girlfriend, son, daughter, or simply acquaintance, possesses or deals drugs from your jointly shared residence?  Can you be convicted even if you have nothing to do with it?  You bet your glass pipe you can!

A couple of cases from the 1st and 14th District Courts of  Appeals (Houston) were published last week regarding the Links Test, defining what factors a trial court considers to determine whether there is enough evidence to "link" you to the narcotics possession/distribution.  Links (weblinks, that is) to the cases are below.  Briefly, here's what the Courts explained:

When...the accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must link the accused to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.  The evidence must demonstrate that the link between the accused and the contraband generates a reasonable inference that the accused knew of the contraband‘s existence and exercised control over it.  In other words, the State must establish that the accused‘s connection with the narcotics was more than just fortuitous.  The Texas Court of Criminal Appeals has explained that the purpose of the links rule is to protect the innocent bystander from conviction based solely upon [her] fortuitous proximity to someone else‘s [narcotics].  The links rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.

Texas courts have identified many non-exhaustive factors that may demonstrate a link to contraband.  The factors include whether the narcotics were (1) in plain view; (2) conveniently accessible to the accused; (3) in a place owned, rented, possessed or controlled by the accused; (4) in a car driven by the accused; (5) in close proximity to the accused; or (6) found in an enclosed space; and whether (7) the odor of narcotics was present; (8) drug paraphernalia was in view of or found on the accused; (9) the accused was present; (10) the accused‘s conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements); (11) the accused had a special relationship to the drug; (12) the accused possessed other contraband or narcotics when arrested; (13) the accused was under the influence of narcotics when arrested; (14) the accused made affirmative statements connecting her to the contraband; and (15) the accused was found with a large amount of cash.  These factors constitute a shorthand way of expressing what must be proven to establish that [narcotics] were possessed knowingly.  The number of linking factors present is not as important as the logical force‖ they create to prove that an offense was committed.  The absence of various links does not constitute evidence of innocence to be weighed against the links present (citations omitted).

In both of the published cases below, the links test worked to the advantage of the State despite several weak links in the chain.  I guess in Texas a narcotics conviction is as strong as its strongest link.

Satchell v. State, 1st Dist. - Houston, June 10, 2010.
Roberts v. State, 14th Dist. - Houston, June 10, 2010.

"But I'm Just a White-Collar Criminal!"

Bill O’Reilly has his “no spin zone”, but you won’t find that here at LJY…welcome to THE SPIN ZONE!!!

Yesterday the Fifth Circuit Court of Appeals came down with a few new published decisions. We'll break them down here and see what kind of spin the State and the defense might put on them.

U.S. v. Coleman, No. 09-30545

In this case, Mr. Coleman was charged with being a felon in possession of a firearm in violation of 18 U.S.C. ' 922(g)(1). Mr. Coleman insisted that he should not be charged with this crime because the underlying felony he had been convicted for fell within an exception to the crime of felon in possession of a firearm.

Under 18 U.S.C. '921(a)(20)(A), a person convicted for an offense relating to the regulation of business practices is exempt from being prosecuted as a felon in possession of a firearm (the business practices exception) . Mr. Coleman’s underlying felony conviction was for conspiracy to pirate encrypted satellite signals and to infringe a copyright. Coleman argued that his underlying felony conviction was for an offense relating to the regulation of business practices. He also argued that the court should evaluate the conduct underlying this conviction to determine whether the predicate offense fell within the business practices exception.

The court ultimately said that while the case law was clear that the court shall not examine the facts underlying the charged crime, it will consider the violation of the law that is the target of the charged conspiracy.

In Mr. Coleman’s case, the violations of the law that that were the targets of his conspiracy were pirating encrypted satellite signals and infringing copyright. The court stated that in order for a violation of the law to fall within the business practices exception that violation of the law must contain the element of having an effect upon competition. In Mr. Coleman’s case, the court held that neither the pirating crime nor the copyright crime contained an element requiring the State to prove that there had been an effect upon competition. The court Affirmed Mr. Coleman’s conviction.

· State SPIN: Just because the offense you commit has something to do with business practices doesn’t mean you’re automatically exempted from the felon in possession of a firearm statute.

· Defense SPIN: For the offense of conspiracy, the court can’t just look to the elements of conspiracy to evaluate whether the offense is excepted or not. The court must look also at the elements of the target offense of the conspiracy.

This case provides a good example of a creative argument on behalf of the appellant. Mr. Coleman’s attorney was aware enough to key on the fact that Mr. Coleman’s underlying offense had elements of business practices and made a great argument in an attempt to persuade the court to look at the facts of the underlying offense. I think that had the court been willing to go as far as to look at the facts the of the case they might have gone along with Mr. Coleman

The next 5th Circuit case we'll look at is U.S. v. Davis....we'll spin that case next!!!  Stay tuned.

Keeping a Promise

I'm up to my ears in published cases from the various Texas Courts of Appeals.  Maybe I never should have promised to post about every published case.  Or maybe I shouldn't have taken such a long break when baby #2 came along last month.  Regardless, I promised and now I need to do a bit of housecleaning in order to keep pace with all of the recent published opinions.  Here are a few from last week:

Wilson v. State, Tex. Crim. App. (Delivered  June 9, 2010) - CCA upheld Court of Appeals decision even though the Court of Appeals based its holding on a Penal Code section under which Appellant did not preserve error, but was closely related to the section for which he did preserve error.  To remand the case and end up with the same result, would have been an exercise in futility, so it appears the Court based its ruling more on judicial economy than law.

Rivera v. State, 7th Dist - Amarillo (Delivered June 8, 2010) - Explaining that Appellant had the burden to prove his counsel was ineffective, the Court held that trial defense counsel is not required to make arrangements for the defendant to view and/or listen to electronically recorded evidence prior to his guilty plea.  A good quote from this Per Curiam opinion:

Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

Griffith v. State, 11th Dist - Eastland (Delivered June 10, 2010) - Court affirmed manslaughter conviction.  Appellant acted recklessly when he drove his vehicle while intoxicated.  A defendant need not be aware of the specific risk of another's death to be guilty of manslaughter.

Steadman v. State, 11th Dist - Eastland (Delivered June 10, 2010) - The Court upheld the ruling of the trial court allowing a police officer to testify that the defendant "neither admitted nor denied" that he committed the offense during pre-arrest/pre-interrogation interview with police.  The Court had to stretch for this opinion, but here's what it came up with:

We hold...that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Steadman‟s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant‟s post-arrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues.

Okay, there's a few cases.  I may have to do a couple more posts like this one to catch up.  Please bear with me.

No Warning Required

As most of us are aware, whenever the State plans to offer evidence of extraneous offenses (a.k.a. Bad Acts Evidence) under Rue 404b during the guilt-innocence phase*, it must give pretrial notice to the defense.  Similarly, when the State plans to offer extraneous offense evidence during the punishment phase of the trial, it must provide the defense with notice under Article 37.07, Section 3(g) of the Texas Code of Criminal Procedure.

As the Court of Criminal Appeals recently explained:

The two notice rules serve the same purpose.  They guard against 'surprise and promote early resolution on the issue of admissibility' of uncharged misconduct, conduct that the defendant would not otherwise know might be offered at trial, either during the guilt of punishment phase.

But what about same-transaction contextual evidence?  You know, evidence that is somewhat inflammatory and not completely germane to the real issues, but is inextricably intertwined with the case.  If you don't know what I mean by "same-transaction contextual evidence" read the recent CCA opinion in Worthy v. State.  Does Same-transaction contextual evidence require notice of the State's intent to introduce such during the punishment phase of the trial?

In Worthy the CCA answered this question in the negative.

Building upon our prior opinion in Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002), we hold that Article 37.07, § 3(g), which explicitly states that the notice requirement applies 'in the same manner required by Rule 404(b),' refers to the scope of the evidence offered as well as to the timing of the evidence offered.  Therefore, because pretrial notice of 'same-transaction contextual evidence' is not required under Rule 404(b), it is also not required under Article 37.07, § 3(g).

Explaining its reasoning, the Court went on:

Furthermore, “same-transaction contextual evidence” is intrinsic to the offense; it is not “an extraneous crime or bad act” to which Article 37.07, § 3(g), explicitly refers. Under the common law, this contextual evidence was treated as a distinct class–“res gestae” evidence–under the reasoning that the criminal act does not occur in a vacuum, and the jury has a right to hear the contextual evidence.

However, this doesn't exactly signal a free-for-fall for the State, the Court admonished:

That said, prudent prosecutors provide pretrial notice of all evidence that could possibly be considered extraneous to the charged offense so that judges need not 'engage in a hair-splitting debate' about whether some specific item is evidence of an extraneous offense or is same-transaction contextual evidence.

We'll see how the State plays it, but as the title says "No Warning Required."

*The asterisk in the first paragraph it to express my disdain for the term "guilt-innocence phase."  Since when is anyone proven "innocent" at trial?  In fact, as litigators, we should all try to abolish the term innocent (in all forms) for it places an unfair (and unconstitutional) burden on a defendant.  If a jury was faced with the two options of guilty or innocent, 9.99 times out of 10 they're going to find your client guilty of something.  But, when the choices are guilty or not guilty, it makes life a lot simpler.  As we all know, most defendants aren't exactly innocent, but you can always make the argument that they're "not guilty."

An Alternative Disposition for Drug Addicts

Our prosecutor contributors have been busy lately, but one of them took a break to offer an intriguing outlook on cases involving bonafide drug addicts.  Here you go.

How often do you handle felony cases where drugs are clearly the root of the crime committed? I’m not just referencing the clear ones like possession or possession with intent to deliver. I’m also talking about the theft, burglary, or credit card abuse cases where you have a client who is stealing to feed their drug addictions. These are the clients who probably have a track record a mile long or have picked up 3 or 4 cases within just a few months.

These folks may come across as the ones who just want to do their time and get back to their addiction. They’ve maybe had defense attorneys before you who have gotten them the best jail or pen time available. They know the game and expect the same from you. Or maybe not?

Maybe you have somebody who has reached that breaking point and wants out of the drug world. Whatever the case, when you’re handling drug-related cases with an addict for a client consider this. They don’t have to go to the pen or state jail or even spend a couple of months in the county. Instead, the state has created programs to address the needs of these types of folks.



Rehab. That’s what it is. Plain and simple. Most jurisdictions have county-ran programs where offenders can go to fight their addictions. Some are lock-down programs while others allow participants to maintain full time jobs during the day. (Check with your local probation office on what types of program your jurisdiction offers) TDCJ offers their Substance Abuse Felony Punishment (SAFP) program which is a bonafide lock-down facility. There are programs offered through your local MHMR that usually allow for outpatient treatment. And never forget about private facilities for those clients who can afford it.

Whatever type of program is needed for your specific client, your role as counselor may necessitate this conversation with her. For example, she has been addicted to crack-cocaine for the past three years. She’s been to the state jail and pen and is currently actively incarcerated for her newest state jail theft case. Her first comment to you is? That’s right. Get me the shortest sentence so I can get out of here. Or maybe she possesses the more “I don’t give two rips” attitude. What if you sit her down and explain her options. Explain the availability of these programs to help address her problem. She may very well be responsive. You may need to be the one who encourages that initial step in the direction of recovery.

As for the prosecutor, every case is different. But in many situations, when you have a client who is willing to address his drug problem and agree to a rehabilitative program, the prosecutor is going to have a hard time saying no. It’s not very often the prosecution is approached with rehab. More often than not, it’s the prosecutor who sees the need and has to make the proposal. The defense attorney is in a much better place to make that suggestion, especially when considering how your client will receive it. “The prosecutor is saying you have to do this.” – probably won’t work. “I, as your attorney, think this is something you really need to consider.” – is much more appealing. Just something to think about next time you deal with a client who is an addict.

Police Coerce Suspect to Confess But Court Refuses to Instruct Jury Accordingly

Contreras v. State - a long opinion, but a great read.

Let me set the scene.  A baby is dead.  Appellant was the only person babysitting when the baby died.  The police invite Appellant to make a statement. They give him his Miranda warnings and he waives.  Appellant states that the baby fell off the couch, but was alive and well when he put her to bed.  The medical examiner then conducts an autopsy and discovers what appears to be severe chest wounds caused by blunt force trauma.  The police then invite Appellant to make another statement.  They, once again, read him his Miranda warnings...this is where the story diverges.

According to the detective, during the second interview, "appellant never invoked any of his rights." Additionally, "no threats or promises were made to appellant, nor did the officers threaten any members of appellant’s family."  The Appellant then confessed to murdering the baby.

 On the contrary, Appellant testified that the detectives "kept yelling and jumping in, banging his hand on the desk" and "getting in Appellant's face."  Appellant further testified that they threatened to blame the entire thing on Appellant's wife if he did not confess, saying "C'mon, you're not going to let your wife go to jail for something you did" and "Well, if it wasn't you, then your wife must have done it."  Appellant, who wasn't under arrest at the time, then asked to speak with his family members and the detectives declined to let him go.  Appellant then said, "I need to speak with an attorney," to which the detectives responded thusly:

Come on, Saul. You’re just being selfish. We can’t let you do that. If you do that, then we won’t be able to talk to the Assistant D.A.’s on your behalf. We know you have a clean record. We know you’re a good guy. With your clean record, you’ll probably get a bond and be out by Monday, and then you can straighten all this out.

Finally, Appellant testified, the officers' tactics caused him to confess:

Like I said, I was tired, exhausted. I didn’t want my wife to go to jail. I didn’t want them to take our kids away. I wanted to get out of that room. I wanted to talk to my family, and they weren’t letting me do that until I said what they were saying.

Despite the conflicting nature of the testimony, the trial court refused to provide an appropriate instruction to the jury pursuant to Article 38.23 of the Texas Code of Criminal Procedure, which provides, in relevant part:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

The Texas Court of Criminal Appeals instructs that "the trial court has a duty to give an article 38.23 instruction sua sponte (on its own) if 3 requirements are met:

1. Evidence heard by the jury raises an issue of fact (true in this case); 
2. The evidence on that fact is affirmatively contested (true again); and
3. The contested factual issue is material to the lawfulness of the challenged conduct in obtaining the statement claimed to be involuntary (bingo).

Accurately citing this standard, the lower court (8th Court of Appeals - El Paso) simply said that it was undisputed that Appellant received Miranda warnings and completely disregarded the other alleged egregious conduct by the detectives. 

Not willing to sweep such unconsionable interrogation tactics under the rug, the CCA reversed the judgment of the lower court, holding that the evidence did raise a fact issue regarding whether a threat to arrest and prosecute Appellant's wife rendered his confession involuntary under due process and that the trial judge should have so instructed the jury under article 38.23.  The only problem now is that the CCA remanded the case back to the 8th Court for a harm analysis, so we can bet that this conviction will stand - a shallow and temporary victory for the Appellant in the interim.

An interesting side note - Presiding Judge Keller went off on a bit of a tangent on page 26 of the opinion regarding the logical disconnect between a Miranda challenge and a constitutional challenge under article 38.23.  Not exactly germane to the case, but interesting nonetheless.

Tolling the Statute of Limitations for a Separate Offense

A period of limitations may be tolled for 2 reasons:

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

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

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

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

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

Judge Meyers concurred.

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

Art Law class in NYC

Thinking of starting a For-Profit Arts Business? Don't miss this class tomorrow!

Space is still available.

Forming Your For-Profit Arts Business

When: Thursday, June 10th, 2010, 4 - 6 p.m.
Where: VLA, 1 East 53rd Street, NY, NY 10022 (Auditorium)

(There is an additional $10 late fee if you register day of the class. Please fax your registration form in by 2:00 PM on Thursday.)

This class provides valuable information about starting an arts-related business. Covered issues also include: For vs. Non-Profit incorporation, fiscal sponsorship, selecting and protecting business names; the legal and tax characteristics of LLCs an publication requirements, partnerships, and type C and S corporations; choice of jurisdiction; financing your business; employees and independent contracts; and insurance.

This class will be taught by Elena M. Paul, Esq., VLA's Executive Director.

To register and for more information, please see this registration form.
_____________________________________________________________________
Since 1969, Volunteer Lawyers for the Arts has been the leading provider of pro bono legal services, mediation services, educational programs and publications, and advocacy to the arts community in New York. The first arts-related legal aid organization, VLA is the model for similar organizations around the world. For more information about Volunteer Lawyers for the Arts, please see www.vlany.org.

Who Let Him in Here?!?

Lots of action from the Texas Court of Criminal Appeals today.  The first case on the list of those designated for publication is a combo case - Trinidad and Adams v. State.  This case dealt with the propriety of allowing an alternate (13th) juror to accompany the other 12 jurors in the deliberation room while they reached a verdict.


You would think that this issue would be long settled - Texas courts have been around for quite a while, as has the requirement of a 12-person (and only 12-person) jury.  However, in 2007, the Texas legislature amended the Code of Criminal Procedure (Article 33.011(b)) to provide that:

an alternatee juror in a criminal case tried in the district court, if not called upon to replace a regular juror, shall no longer be discharged at the time that the jury retires to deliberate, but shall now be discharged after the jury has rendered a verdict.

The problem with this amendment, the CCA notes, is that the legislature was silent regarding whether the alternate juror should be allowed to be present for, and participate in, the jury's deliberations. 


In both Trinidad and Adams, the trial judge allowed the alternate juror to be join the jury during deliberations, and in both cases, the defendant did not object to this practice.  On appeal, however, the 4th District Court of Appeals (San Antonio) reversed the convictions, holding that it was constitutional error for the trial court to allow the alternate juror to be present during deliberations.  The 4th Court further held that the Appellants could not forfeit the right to a 12-person only jury, as that right is a "waiver-only" right.  See Trinidad v. State, 275 S.W. 3d 52 (Tex. App.--San Antonio 2008) and Adams v. State, 275 S.W. 3d 61 (Tex. App.--San Antonio 2008).


"Not so fast, my friend," said the CCA today.  Reversing the judgments of the Court of Appeals in both cases, the CCA held:

In neither of the appellants' cases was the alternate juror allowed to vote on the ultimate verdict in the case, at either stage of trial.  As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were, judged by a jury of more than the constitutionally requisite number.

On the issue of waiver/forfeiture, the CCA also disagreed with the 4th Court.

The appellants had every opportunity to object that the trial court's attempts to comply with the recent amendment to Article 33.011(b) of the Code of Criminal Procedure, would run afoul of Article 36.22, but they did not do so.  Under these circumstances, we sustain the State's assertion that these appellants have procedurally defaulted their statutory arguments on appeal, and we hold accordingly that the court of appeals erred to reach the merits of their statutorily based claims.

So where does this leave us on the alternate-juror-in-the-deliberation-room fiasco.  From reading this opinion (between the lines in some places), it appears to me that, had the appellants objected at trial that by allowing the alternate juror in the deliberation room the trial court would be "allowing an outside influence to be brought to bear on the constitutionally-composed 12-member jury," the CCA would have come down on the other side and affirmed the reversal of their convictions.


Takeaway:  OBJECT at trial (and on appeal) under Article 36.22 of the Texas Code of Criminal Procedure, if any outside person (alternate juror or otherwise) is allowed to enter or remain in the deliberation room with the 12 jurors.  At least you will have preserved error if the trial judge allows this to happen.


Judge Johnson concurred, admonishing that "having the alternate juror remain outside [the deliberation room] would avoid just the situation we address here."

Bad, But Not Bad Enough

Having found Appellant's trial defense counsel's performance deficient, the Texas Court of Criminal Appeals, in Perez v. State (a published opinion) focused on the 2nd prong of the Supreme Court's ineffective assistance standard as laid out in Strickland - whether Appellant was prejudiced by his counsel's performance.  As the Court put it:

To succeed under the prejudice component, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

In Perez, the Appellant failed to establish prejudice because the putative alibi witness' testimony would have been ambiguous at best and may not have changed the outcome of the trial at all.  Accordingly, the Court affirmed Appellant's conviction.  This opinion provides good and concise analysis on the prejudice prong of Strickland - a recommended read for ineffective assistance issues.

On a side note - I apologize for the thin and sporadic posting as of late.  We recently welcomed a new baby into the family and my primary efforts have been elsewhere.

No Current Confinement Necessary: Habeas Relief Available for Collateral Consequences

On May 26, 2010, the Texas Court of Criminal Appeals released its opinion in Ex parte Harrington, which has the potential to substantially increase habeas corpus litigation in Texas.  In Harrington, the Court was faced with the question:

[W]hether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

 The basis for applicant's petition was that due to his confinement for felony DWI, he suffered collateral consequences, namely, he lost his long-time job with the Texas Workforce Commission.  The applicant argued that but for his counsel's ineffective assistance in failing to investigate his prior DWI conviction, he would not have plead guilty for felony DWI and, in turn, would not have been sentenced to confinement.

In 1987, the CCA answered this question in the negative, holding:

an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07.  [U]nless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.

However, in 1995, the Code of Criminal Procedure was amended.

Article 11.07, § 3(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.

Holding that the Court indeed has jurisdiction to entertain Applicant's petition regarding relief from the collateral consequences of his confinement, the Court granted relief and remanded the case back to the trial court for resentencing as a Class A misdemeanor.

Retaliation and Assault

Below are a couple of published cases from the 7th (Amarillo) and 14th (Houston) Courts of Appeals regarding the sufficiency of an indictment and a jury charge, respectively.

Defect in Retaliation Indictment - Cada v. State, 7th District Court of Appeals (May 24, 2010)


In Cada, the appellant was indicted for and convicted of retaliation against a "witness" under Texas Penal Code Section 36.06.  Under prior Texas caselaw, the definition of "witness," as used in connection with the retaliation statute, means "one who had testified in an official proceeding."  In this case, however, the "witness" against whom the appellant was alleged to have retaliated, never testified in an official proceeding, but rather simply made a complaint to the police which resulted in appellant's wife being arrested.  The complainant, said the Court, was actually a "prospective witness," rather than an actual "witness" under the statute.  This variance in the indictment, the Court held, was not material.  Accordingly, the Court upheld the conviction for retaliation against a witness.


Defect in Jury Charge - Trejo v. State, 14th District Court of Appeals (May 20, 2010)


In Trejo, appellant was charged with aggravated sexual assault, but was convicted of aggravated assault as an LIO.  The Texas Court of Criminal Appeals, however, held that aggravated assault was not an LIO of aggravated sexual assault in this case and remanded the case back to the 14th Court.  The Court was tasked to determine whether appellant suffered "egregious harm" based on the trial court's error in charging the jury on aggravated assault even though it was not an LIO of the indicted offense.

Egregious harm deprives appellant of a fair and impartial trial. Egregious harm occurs when the error affects the very basis of the case,‘ deprives the defendant of a valuable right,‘ or vitally affect[s] a defensive theory.  In the egregious-harm analysis, we consider (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel; and, (4) any other relevant information revealed by the trial record as a whole.

Applying the four Almanza factors above and using the common sense observation that Appellant was convicted of the very offense that was improperly charged to the jury, the Court held that Appellant did indeed suffer egregious harm and reversed his conviction.