Military Sex Crime Conviction May Be Used for Enhancement in Texas

Rushing v. State (Tex.Crim.App. - Oct 5, 2011) - Here's a case that interests me on a couple of levels.  When I was a prosecutor in the Marine Corps, one of the constant questions I received from defense counsel when negotiating a plea on a sex crime case was how, and to what extent, the conviction will affect the service member in his/her home state.  I rarely knew the answer because many of the accused were from different states.  Well, the Texas Court of Criminal Appeals has confirmed that a military conviction for a sex crime, does have collateral consequences in Texas - one of them being that the conviction is able to be used for enhancement purposes in a later prosecution for a separate offense.

In Rushing, the CCA held that a prior sex-offense conviction under the Uniform Code of Military Justice (UCMJ) qualifies as a "conviction under the laws of another state" for enhancement purposes.  Texas Government Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States.  A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction is properly enhanced under Penal Code §12.42(c)(2)(b)(v) for that conviction.

"That's Not a Knife...This is a Knife"

Made famous by Paul Hogan in Crocodile Dundee.

Similarly, the 9th District Court of Appeals (Beaumont) distinguished a knife from a knife in Alvarado v. State, holding:

[A] kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or serious bodily injury.

The problem, argued Appellant, is that the jury was not informed of such.  Rather, the trial court instructed the jury, under Section 1.07(a)(17)(A), that

Deadly weapon means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.

Appellant was convicted (obviously - he wouldn't be an Appellant if were aquitted) of aggravated assault with a deadly weapon.  On appeal, he challenged the faulty jury instruction, arguing that it resulted in "egregious harm."  (Becuase he failed to object to the instruction at trial, the error must have resulted in "egregrious harm" for appellant to be entitled to any relief).

Noting the error, the Court did not find egregious harm, stating:

Alvarado contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, Alvarado presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory.

In other words, had his trial defense counsel be savvy enough to spot the "kitchen-knife-is-not-a-deadly-weapon" issue at trial, Appellant may have had himself a case.

Takeaway:  Not all knives are deadly weapons!

180-Day Speedy Indictment Rule is Merely Procedural

What happens when the State drags its feet in presenting an indictment or information against a person who is incarcerated or otherwise in custody?  Can that person have his case dismissed with prejudice when the State fails to move quickly in charging?  Unfortunately, th best he can hope for is to buy some time by having the case dismissed thereby releasing him from custody while the State pursues its indictment.  The State will then be forced to re-arrest the defendant once it finally obtains an indictment or drafts an information.

Article 32.01 of the Texas Code of Criminal Procedure provides:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail on of before the 180th day after the date of commitment or admission to bail, whichever date is later.

Jeffrey Paul Schroeder argued on appeal that his indictment was defective because it was not presented within this 180-day time frame.  In a concise and pointed opinion (HERE) upholding the conviction for intoxication manslaughter, the 9th District Court of Appeals (Beaumont) explained why Mr. Schroeder's claim failed:

[A]rticle 32.01 does not create a substantive right that frees a person from prosecution for the commission of an offense. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). Instead, article 32.01 creates a procedural right to be dismissed from custody under certain circumstances until the grand jury has been presented with an indictment. After the presentment to the grand jury of an indictment on the offense at issue, article 32.01 is no longer applicable. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999). In most cases, “the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution . . . .” TEX. CODE CRIM. PROC. ANN. art. 15.14 (Vernon 2005).

In this case, Schroeder did not obtain a ruling on his motion to dismiss before the grand jury returned its indictment. Therefore, when the trial court ruled on Schroeder‟s motion, and because the grand jury had at that point returned an indictment, the trial court was no longer required to release Schroeder from custody. See Ex parte Countryman, 226 S.W.3d 435, 436-39 (Tex. Crim. App. 2007) (in a habeas proceeding, holding that a “speedy-indictment claim” was moot when the indictment had been returned before the trial court heard the motion to dismiss the indictment). Because Schroeder had already been indicted by the grand jury when the trial court denied his motion to dismiss the indictment, a dismissal of his indictment was no longer required. Id.

The Defendant has No Clothes!

In perusing the recently published cases of the various Texas Courts of Appeals, I came across Powell v. Texas, a case from the 9th District (Beaumont). If you are in need of a good laugh and you have a few minutes to spare, you should consider reading the full opinion HERE.  I will give you the highlights.

Powell was on trial for assaulting a prison guard. During the trial (while in the holding cell and in open court) the defendant was continually disruptive. The judge admonished Powell numerous times and ended up having to shackle both his arms and feet (there was a skirt around the table so that the jury could not see the shackles). During one of the recesses, Powell ripped his shirt off in the holding cell and use it to wipe his butt. When he returned to court, he could no longer wear his shirt because it had feces on it! The defense counsel offered to retrieve a new shirt from his car, but the judge denied the request. Powell was offered a jacket by the bailiff, but he refused to wear it. For the remainder of the trial that day, Powell sat shirtless in front of the jury, exposing his many tattoos.

On appeal (after Powell received a 65-years sentence), Powell complained that the judge erred by refusing to allow his lawyer to retrieve another shirt for him to wear and for making him endure the remainder of the day shirtless in front of the jury. Applauding the moxy of the trial judge in trying to maintain order in his court, the 9th District Court of Appeals, nonetheless held that the judge committed error by allowing the shirtless spectacle to occur. However, the Court upheld the results, concluding that the State had proven beyond a reasonable doubt that the error did not contribute to the jury's verdict.

Word to the wise: If you think that your client might possibly rip off his shirt and use it for toilet paper, bring more shirts with you to the courtroom so that you don't have to delay the trial in order to clothe your client. (More shirts could also come in handy if your client needs to use the restroom later in the day)