Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

If You Don't Have Anything Nice to Say...

After the defendant was convicted in the case of State v. Lucio, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

CCA Affirms Disjunctive Conviction

In May of 2010, I blogged about Young v. State, a case out of the 3rd District Court of Appeals (Austin), wherein the court upheld a conviction for failure to fulfill sex offender reporting requirements even though the jury was not required to return a unanimous verdict regarding the means of the failure.

Last week, the CCA affirmed the case, holding that:

It has long been held that juror unanimity is required in felony cases by the Texas Constitution and in all criminal trial by state statutes.  Put simply, the jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed...  Jurors must unanimously agree only that a sex offender failed to fulfill his reporting duty; they are not required to agree as to how he failed that duty.

See the CCA opinion HERE.

See my previous post with amplified details HERE.

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.

11 Angry Men?

Enjoyed a nice trip to Dallas this past week.  I could have certainly done without the 104 degree weather every day, but the heat was wonderfully offset by the availability of Blue Bell Ice Cream.  As I'm getting settled back into my blogging routine, here are a couple of cases from July that you might find helpful or informative (or perhaps neither).

11 Angry Men
In Willis v. State, the 11th District Court of Appeals (Eastland) points out that under Section 62.201 of the Texas Government Code, parties in a district court may "agree to try a particular case with fewer than 12 jurors."  This is one of the exceptions to the general rule found in article 36.29(a) of the Texas Code of Criminal Procedure, which provides that "Not less than 12 jurors can render and return a verdict in a felony case."

Mail Call
In Brown v. State, the 12th District Court of Appeals (Tyler) reminds us of one of the many reasons it stinks to serve time in Texas (or anywhere) - nothing is private!  The Court explained:

[A]n inmate does not have an expectation of privacy. Hudson v. Palmer, 468 U.S. 517 (1984). Seizure of inmate mail is not a violation of an inmate's constitutional right to be free from unreasonable search and seizure. Stroud v. United States, 251 U.S. 15 (1919).  Additionally, there is no violation of an inmate's constitutional rights by prison officials reading the inmate's nonlegal mail. See Thomas v. Allsip, 836 S.W.2d 825 (Tex. App - Tyler 1992, no pet.).  Since Appellant has no expectation of privacy, the corrections officers were within their authority to obtain copies of his mail without a search warrant.

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”!)

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.

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.  

Two Means of Committing a Single Offense

Robert Alan Young was charged with failing to comply with Texas's Sex Offender Registration requirements (see chap. 62 of Tex. Code Crim. Proc.) by failing to report his change of address either 7 days before his intended move or 7 days after his move was completed.  By so charging, the State was able to gain a conviction so long as the jury could agree that either of the 2 theories was established beyond a reasonable doubt.  After his conviction, Young argued on appeal that by charging the offense in the disjunctive, the State violated his right to a unanimous jury verdict. (I tend to agree.)

Think about.  What if half of the jurors believed that Young violated with the registration requirements by failing to report his change of address 7 days prior to his move, while the other half disagreed and believed that, rather, he failed to report his move within 7 days after it was effected?  It seems we would not have a uniamous verdict under either theory.  Oh, but that is not how it works (says the 3rd District Court of Appeals - Austin).

In Young v. State, the Court explained:

The single offense described by both article 62.055 and by the jury charge is the offense of failing to report a change of address.  This offense can be violated by failing to report the change in advance, aftewards, or both.  Those variations are evidentiary, not separate and dstinct elements of an offense.  Here, the statutory verb defining the criminal act is "report."  Thus, in this case, it is the act of reporting - or the failure to do so - upon which all jurors must agree.

"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!

BAC Test Results Admissible without Extrapolation Testimony

In 2004, the Texas Court of Criminal Appeals held, in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that an intoxilyzer test taken approximately 80 minutes after the defendant had been driving, was admissible as it "tended to make it more probable that she was intoxicated at the time she drove under [both the per se and impairment] definition[s] of intoxication."  Id. at 96.  The Court so held despite the fact that the State failed to offer retrograde extrapolation testimony to show what the BAC may have been at the time of driving.  And so it was written: BAC results are admissible without extrapolation evidence.  See also State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).  (*Obviously, the court must consider other factors, such as, the time the test was taken and whether the defendant's submission to the test was voluntary, before finding a BAC test results relevant and admissible.)

I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding.  Read majority opinion HERE.   The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:

Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test.  That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.

On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication.  The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed.  See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008).  The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving.   Judge Price dissented.  Read dissent HERE. 

Is the Verdict Form a Part of the Jury Charge?

It is.  Therefore, if the verdict form contains mistakes or omissions, those errors are analyzed for harm under the Almanza standards of review.  We reverse the court of appeals, which stated that a verdict form is not part of the jury charge and held that if a defendant fails to object to the omission of a 'not guilty' option on the verdict form, she fails to preserve any complaint on appeal.

See Jennings v. State, released January 27, 2010 by the Texas Court of Criminal Appeals.