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.