A Prescription for Acquittal

The State of Texas charged and convicted Bille Jean Avery of attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented at trial, however, revealed that the defendant actually used a legitimate prescription form, but that she forged some data on her prescription information in an attempt to obtain stronger pain pills.

In her appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that she could not be convicted of using a “fraudulent prescription form” when the prescription form she used was legitimate.  The Court of Appeals agreed and acquitted her of the offense.

On discretionary review, the Texas Court of Criminal Appeals affirmed Court of Appeals’ affirmed judgment of acquittal. In a unanimous opinion, the CCA explained:

Just as tax information should be recorded on a tax form to create a competed tax return, so too prescription information should be recorded on a prescription form to create a completed prescription.  The information that is written on the form is not the form itself…[W]e hold that “prescription form” refers to a pre-printed form designed to have prescription information written on it.

This was a case of a simple charging error by the Disctrict Attorney's office, but it goes to show that attention to detail can win the day.

Single Act, Single Offense - Indecency with a Child by Exposure

If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not bar multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey's majority opinion in Harris v. State HERE.

Presiding Judge Keller dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”

Self-Defense and Reckless Offenses

Under Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Click HERE to read the facts of the case.  Presiding Judge Keller concurred.

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.

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. 

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.

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.

“Manner and Means to the Grand Jury Unknown”

I've been told that rules are made to be broken.  It seems, the CCA agrees.  Okay, maybe not "broken," but certainly modified.  Yesterday, the Texas Court of Criminal Appeals overruled 17 years of precedent from Hicks v. State, 860 S.W.1 2d 419 (Tex. Cr. App. 1993) in cases involving an indictment (or jury charge) alleging “unknown manner or means" by which a defendant committed an offense.

In Sanchez v. State, the Appellant was convicted of “intentionally and knowingly caus[ing] the death of [the victim] by manner and means to the Grand Jurors unknown.” The court likewise charged the jury on the “unknown” manner and means. The Appellant objected to the “manner and means unknown” theory because, as he argued, the allegation was unsupported by the evidence presented at trial and was thus based on insufficient evidence to convict. The trial court overruled the objection. Appellant was convicted of murder and sentenced to sixty-eight years in prison.

On appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that the manner and means the Appellant employed were not actually unknown as there was testimony at trial regarding possible strangulation and use of a stun gun, and that the jury charge was erroneous in authorizing conviction on an “unknown” theory. The 13th Court bought it.

In determining whether the trial evidence was sufficient to warrant a charge on the “unknown” theories, the [Appellate] Court relied on the rule stated in Hicks v. State that when an unknown allegation is made in an indictment, the burden falls to the State either to present a prima facie case at trial that the manner and means were actually unknown, or to prove (usually by testimony) that the grand jury used due diligence to ascertain the manner and means of death.

The CCA, however, was no so persuaded. Identifying the thrust of the Hicks decision as “notice to the defendant,” the CCA explained that the rule “seems to have lost it intent and focus.” Devising a new rule in “unknown manner and means” cases, the CCA held:

we overrule the two-pronged rule in Hicks and announce a new standard for indictments with “unknown” allegations to the grand jury that are subsequently used as the jury charge at trial:

Where the State has alleged “unknown” manner and means in the indictment and/or jury charge, the defendant may challenge the propriety of the “unknown” allegation before trial and (if the evidence at trial has made a second inquiry necessary) at the conclusion of evidence, but before the charge is submitted to the jury.

Addressing the “notice” concern of the Hicks litany, the CCA provided:

The first question (whether raised before or during the trial) is whether the defendant was given proper notice so that he could properly prepare for trial. The pre-trial hearing will ensure that the “unknown” allegation was truly unknown to the grand jury and is not being used to surprise or manipulate the defendant at trial. This hearing replaces the Hicks test, but does not require proof of “unknownness” at trial. Instead, it permits hearings that will, at the very least, elicit all evidence that is now known so that the “unknown” aspect of the case can be minimized or eliminated by amendment of the indictment or the presentation of a superseding indictment.

The CCA reversed the 13th Court and affirmed Appellant’s conviction.

Texas Pick 'Em; No Jury Unanimity In Continuing Child Sexual Abuse Cases

The issue of jury unanimity in Texas felony cases is a complicated area of the law.  TDCAA published a good article on the subject a couple of years ago.  Simply speaking, Texas criminal law generally requires a unanimous jury verdict wherein the all members of the jury agree on the elements of the offense.  A bit of a wrench is thrown into this system when we consider the offense of "continuous sexual abuse of a young child or children" under section 21.02 of the Texas Penal Code.

Under section 21.02, a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.  Specifically, subsection (d) of 21.01 provides:

If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Arguably, allowing jurors to simply pick and choose which instances (2 or more) of abuse they believe the State proved beyond a reasonable doubt without requiring that they all agree on the specific instances "undermines the weight or effect of [Texas's] rules for the mere purposes of returning a verdict."  This was the argument of Richard Michael Reckart in his appeal of his conviction to the 13th District Court of Appeals.

With a wave of the hand, the 13th Court dismissed Reckart's claim, holding:

Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.–Dallas June 30, 2010, pet. filed) (not designated for publication).

I guess I should know as well as anyone that there is no Constitutional right to a unanimous jury verdict, because we in the military justice system do not require such in any case except those involving the death penalty case (sentencing phase).  It just seems to me that if we, as a State, are going to require a unanimous jury verdict, that the requirement should be consistent as applied the the underlying offenses in a continuous abuse case.  If the jurors cannot agree on which acts were committed, isn't that called "reasonable doubt?"

What is a "Final Conviction" for DWI Enhancement Purposes?

More specifically, can a prior judgment be "final" even though the judgment itself specifically states:

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years.

The Court of Criminal Appeals says YES, the judgment is final.

Overruling the 13th District Court of Appeals (Corpus Christie) precedent in State v. Kindred, 773 S.W.2d 766 (Tex. App.-Courpus Christi 1989, no pet.), the CCA held that the above-paragraph "does not pertain to the finality of the judgment of the conviction for enhancement purposes, but rather to the suspension of the sentence necessary to grant community supervision."  Thus, "the court of appeals erred in holding that appellant's offense was not a final conviction."

The case from which this post is derived is Gonzales v. State.  Full opinion HERE.

I realize that this issue is not terribly sexy or interesting, but I just thought I'd pass along the info in case you ever run into this situation in a felony (enhanced) DWI case.

Quit Being Coy - Just Ask the Suspect if He is Willing to Waive His Rights?

The Texas Court of Criminal Appeals released its opinion in State v. Joseph, regarding the voluntariness of a statement.  In Joseph, the appellant argued that although he signed the rights warning card provided him by the San Antonio police officer, he did not waive his rights and, even if he did waive his rights, the waiver was not voluntary.

The Court went into considerable detail regarding Miranda and its relation to the Texas Code of Criminal Procedure - particularly regarding when a statement is knowingly, intelligently, and voluntarily made.  In fact, if you are in need of a refresher on the law in this area, this case would be a good read.

However, the interesting portion I pulled from the case came in the second concurring opinion authored by Judge Cochran, which Judges Price, Johnson, and Holcomb joined, wherein they suggest a better practice for law enforcement in the area of Miranda warnings.

I write separately to note a rising trend in which Texas law-enforcement officers fail to explicitly ask a suspect if he is willing to give up his Miranda rights and speak to them. This question, if answered affirmatively, results in an express waiver. The failure to ask one additional, simple question has dramatically increased trial and appellate litigation and needlessly jeopardizes the admissibility of a suspect’s subsequently obtained statement.

Maybe officers don't want to know the answer to the additional question?  I doubt this plea from the Court results in any changes across the law enforcement community throughout the State.  We'll see.

Read majority opinion HERE.  Concurring opinion #1 (Keller) HERE.  Concurring opinion #2 (Cochran) HERE.

Can a Civil Penalty Trigger Double Jeopardy?

This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.

The 5th Amendment to the United States Constitution provides, in relevant part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."  Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one's driver's license in addition to a subsequent prosecution for DWI.  Do civil penalties violate the double jeopardy clause?

As a general rule, the 5th Amendment's prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa.  State v. Solar, 906 S.W.2d 142 (Tex. App. - Fort Worth 1995, pet. ref'd).  The U.S. Supreme Court provided, "whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction."  Hudson v. U.S., 522 U.S. 93 (1997).  However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the "statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty."  Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).

In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson.  Termed the "Hudson factors," courts should consider:

1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as a punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of punishment-retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
7. whether it appears excessive in relation to the alternative purpose assigned.

Hudson at 99-100.  Moreover (as if a 7-factor test weren't enough), the Court further provided, "these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty."  Id at 100.

As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case.  The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:

• Termination of a person's rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect.  State v. Almendarez, ___ S.W.3d ___ (Tex.App. - Corpus Christie 2009).
• Trial for termination of parental rights is a civil proceeding with a remedial result - protecting abused and neglected children - and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child.  Malone v. State, 864 S.W.2d 156 (Tex.App. - Fort Worth 1993, no pet.).
• An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution.  Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
• Texas' civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture.  Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
• Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings.  Capps v. State, 265 S.W.3d 44 (Tex.App. - Houston [1st Dist.] 2008, pet. ref'd).
• Cancellation of defendant's alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application.  Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. - San Antonio 1998, pet. ref'd).

TAKEAWAY:  Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty.  According to the bulk of caselaw, it seems to be quite a steep road.

When does a "Friendly Interview" become a "Custodial Interrogation?"

Texas Law enforcement is quite fond of the "friendly interview" (a.k.a. noncustodial interrogation) with crime suspects.  Many convictions are achieved through evidence that is gathered using this technique.  But when does a friendly interview become a custodial interrogation, thus triggering a person's constitutional rights?  More specifically, as the 13th District Court of Appeals considered in State v. Vasquez, when must a person's request for counsel be honored and the interrogation be terminated?

In Vasquez, the defendant, who had been a suspect in a murder case, voluntarily accompanied police officers to the station for additional questioning.  This occurred 4 years after the crime and initial interview of the defendant had taken place.  As found by the trial court, the defendant repeatedly requested his lawyer whom he had retained 4 years prior, when the case first arose.  Despite the defendant's requests for counsel, the police continued the interrogation and obtained an incriminatory statement.  In opposition to the defense motion to suppress the statement, the State argued that interrogation was not "custodial."  The trial court granted the motion to suppress.

In affirming the trial court's order granting the Motion to Suppress, the 13th District Court of Appeals, relying entirely on precedent from the U.S. Supreme Court and the Texas Court of Criminal Appeals, held:

"A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest."  Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)

"When a person voluntarily accompanies officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not 'restrained of movement' and is not in custody.  Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985).  However, and interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter.  Dowhitt at 255.

In determining whether a custodial interrogation, the Court examined the totality of the circumstances in light of the four factors discussed in Dowhitt, which are:

1. if the suspect is physically deprived of his freedom of action in any significant way;
2. if law enforcement officers tell a suspect that he cannot leave;
3. if law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted (such as reading him his Miranda warnings); or 
4. if there is probable cause to arrest and law enforcement officers do not tell the suspect that his is free to leave.  

Applying the law to a view of the evidence in the light most favorable to the trial court's decision, the Court held that "there is some evidence to support an implicit finding that Vasquez was physically deprived of his freedom of action in a significant was by not being provided the retained counsel that he repeatedly requested."  The Court further held that:

"an innocent person in Vasquez's position who was: (1) approached at home by two sheriff's deputies and told that he 'had to go' with them, without reference to the matter in question. (2) taken to a sheriff's department office, (3) Mirandized, (4) questioned by three officers, (5) repeatedly told, against his belief, that he was no longer represented by a retained counsel, and (6) questioned after his repeated requests for retained counsel, would have believed he was in custody."

Accordingly, the order granting the motion to suppress was affirmed.

As you can see, this area of law is very fact dependent and as such, the decision of the trial court with be given considerable deference. If the trial court had denied the motion to suppress, the appellate court could have probably crafted an opinion affirming the denial.

Oral Motion = Forfeiture

Under Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, a motion for a continuance must be WRITTEN and SWORN to by a person having personal knowledge of the facts relied on for the continuance.

David Lee Anderson II, Anderson v. State (Tex.Crim.App. 2009), learned this lesson the hard way. In his trial for aggravated sexual assault of a child, the State sought to introduce the results of DNA testing which were prepared only a few weeks before trial. Complaining of his inability to prepare for the critical evidence, Appellant's defense counsel made an oral motion for a continuance, which was denied by the trial judge.
Upon his conviction, Appellant appealed the ruling of the trial judge, arguing that he was denied a "meaningful opportunity to present a complete defense."

Citing its previous holding in Marin v. State, 851 S.W.2d 275, the Court of Criminal Appeals held that the right to present a meaningful defense is constitutional in nature and, as such, it may be forfeited by procedural default. Accordingly, the Court held that "by making an unsworn pretrial oral motion for a continuance, Anderson failed to preserve his claim that trial judge erred by denying his motion for appellate review."

TAKEAWAY: Always, always, always make your motions for a continuance in writing and sign them! And, in general, follow the rules of the CCP, so as not to allow the appellate courts the ability to punt your case on a procedural issue.