Attack By Dog Statute Upheld

The Texas Attack By Dog Statute (TEX. HEALTH & SAFETY CODE § 822.005(a)(1)) was itself attacked recently, in the case of Watson and Smith v. State.  The Attack By Dog statute provides, in relevant part:

(a) A person commits an offense if the person is the owner of a dog and the person:
     (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner’s real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person;

After being convicted for failing to secure their pit bulls which resulted in the death of a seven year-old neighbor boy, appellants challenged the statute as being unconstitutionally vague.  They argued that the terms “unprovoked” and “attack” are undefined in the statute, rendering it vague and open to disparate jury interpretation.  In a unanimous opinion drafted by Judge Myers, the CCA upheld the convictions, explaining that the terms “unprovoked” and “attack” are not part of the mens rea of the crime in that they relate to the actions of the dog, not the omissions or failings of the dog owners.  Further, the CCA reasoned that:

Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.

The prohibited conduct in this case (and in every Attack By Dog case) was the dog owners’ failure to secure the dogs.  The CCA noted that in determining whether a dog owner has taken reasonable efforts to secure a dog, the court uses the reasonable person standard.

TAKEAWAY: Lock up your dogs.  If they get out and kill someone, you will go to jail.  Fancy legal arguments are not likely to save you when your pit bulls kill a seven year-old boy.

See our post about a previous (and somewhat similar) attack to this statute HERE.

CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

See the CCA's full opinion HERE.

No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Attenuating the Taint

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

     1. The temporal proximity of the arrest and the confession;
     2. The presence of intervening circumstances; and
     3. The purpose and flagrancy of the official misconduct (in making the arrest).

In State v. Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

This opinion was a tease.  I read all 29 pages expecting a certain outcome and then the CCA (by a 5-4 vote) pulled the rug out from under me in the final two paragraphs.  Apparently, I wasn’t the only one that felt this way.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

While it is beneficial for the CCA to create precedent where none previously existed, if it cannot apply that precedent to the facts of the case correctly, what good is it?

More Rules of the Road: Passing on the Shoulder is A-Okay

It appears that the Texas Court of Criminal Appeals is also becoming the State’s highest traffic court.  Last week, I posted about a CCA case involving merging traffic.  This week, the CCA issued an opinion on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop v. State, the Appellant was pulled over after a police officer observed him using the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated.  At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop.  Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

     (2) to accelerate before entering the main traveled lane of traffic;

     (3) to decelerate before making a right turn;

     (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

     (5) to allow another vehicle traveling faster to pass;

     (6) as permitted or required by an official traffic-control device; or

     (7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI.  The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely.  Merely driving on an improved shoulder is not prima facie evidence of an offense.  Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred. 

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.  So there you have it - traffic lesson number two from the CCA this month.  You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.

Judge Johnson concurred, noting that driving on the right should at or near a railroad crossing is typically unwise.

Lane Ends, Merge Left

Back in 2010, I posted about Mahaffey v. State, a case in which the CCA directed the 12 District Court of Appeals (Tyler) to determine whether a "lane merge" is a "turn" under the Texas Transportation Code, such that it requires a driver to signal.  If a "merge" does not require a turn signal (as the appellant failed to do in this case), then the police stop was improper (without reasonable suspicion) and the evidence of his DWI gained from the stop should have been suppressed.

The 12th Court took another look at the case and once again determined that a "merge" was a "turn" and thus required a turn signal.  Apparently, the 12th Court did not get the CCA's hint the first time around.

In a 5-3 opinion (HERE) with Judge Meyers concurring, the CCA reversed (again), holding:

We disagree with the State's contention that the termination of a lane does not affect whether a driver changes lanes under the signal statute.  As a practical matter, "changing lanes" requires the existence of more than one lane: In order to change lanes from Lane A to Lane B, Lane A must exist.  Appellant did not change lanes.  The two lanes became one. ...[N]o signal is required when two lanes become one. 

Presiding Judge Keller dissented and was joined by Judges Price and Keasler.  She would hold that because Appellant's lane ended, he had to change lanes, and that changing lanes requires a turn signal.

Well, it looks like logic prevailed in this one.  You cannot change lanes if there is only one lane in which to drive.  The majority got it right here.  No signal is required for a lane merge.  Remember that if a police officer tries to pull you over for failing to signal.

Pre-Arrest, Pre-Miranda Right to Remain Silent

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

Mental Retardation and the 8th Amendment

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).  The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders are, in fact, retarded, in order to enforce this constitutional restriction. 

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?

Has the person formulated plans and carried them through, or is his conduct impulsive?

Does his conduct show leadership, or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision. 

Last week, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism recently, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Accomodating Public Attendance at a Prison Trial

Lilly v. State

The Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because "prisons are not open to the public and are more like military zones than public places."  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
2. Only people listed on an inmate-defendant's approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media's request;
4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, "the court of appeals held that Appellant's trial was not closed to the public because there was no evidence that anyone was 'dissuaded from attempting' to attend, and no one was actually prohibited from attending his trial."  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, "is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation 'to take every reasonable measure to accommodate public attendance at criminal trial.'"

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit's policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant's trial.

Having found that Appellant's trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant's trial.  Because Appellant's 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commentin on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a "public trial" is held in a prison.

Texas Court of Criminal Appeals Case Updates – Sufficiency of Evidence

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

An Instruction on Lesser-Included Instructions

Somehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary...

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).

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.

CCA Reverses Course on Polygraph Admissibility

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.

Trial Court May Reopen a Suppression Hearing

In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, the Appellant, Gary Lyn Black, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.

Felon in Possession Even if Felony is Reversed

Under section 46.04 of the Texas Penal Code, it is unlawful for a felon to possess a firearm.  Of course, it’s more complicated than that.  There are nuances.  But for the purpose of this post, I’ll leave it at that.  You can read the full text of section 46.04 here if you desire.

So here’s our scenario: A person is convicted of a felony.  Check.  Then that same person is caught possessing a firearm in violation of section 46.04.  Check.  He is then convicted for being a felon in possession.  Check.  But here’s the curveball…what if this person later challenges his original felony on appeal and wins?  Now the predicate offense is gone.  Poof!  Can his subsequent conviction for possession of a firearm by a felon still stand when he is no longer a felon?

The Texas Court of Criminal Appeals addressed this scenario in Ex Parte Jimenez.  To paraphrase the CCA’s answer…it depends.  It depends on when the person’s predicate felony was reversed.  If the predicate felony is reversed PRIOR to the conviction for possession of a firearm by a felon (as it was in Cuellar v. State, 70 S.W.3d 815), then the felon in possession conviction should not stand.  It should be reversed.  But if the predicate felony is reversed AFTER the person is convicted for possessing a firearm as a felon (as is the case here), then the conviction should not be disturbed.

The CCA looked to the U.S. Supreme Court’s holding in Lewis v. United States, 445 U.S. 55 (1980) which explained that “to obtain a valid conviction, the prosecution must prove the status of the defendant at the time he possessed the weapon.”

Therefore, if the defendant had the status of a felon at the time he possessed the firearm, a conviction for unlawful possession of a firearm by a felon is not void if the predicate felony is subsequently set aside.

In Jimenez's case, because his felony conviction was reversed AFTER he was convicted of possession of a firearm, the CCA denied him relief.

Judge Meyers dissented, opining that the facts of the case fit the criteria for an actual innocence claim under the CCA’s opinion in Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

The Importance of Reading Statutes in Context

As an attorney just now jumping into private practice, I see no better time to take my mask off and let all of the Liberty and Justice for Y’all readers know who I am. (And, yes, like Mr. Barnett, I am delusional enough to think we have readers too.)

My name is Luke Williams and for the past few years I have been one of those “unnamed prosecutors” contributing to L&J for Y’all. I look forward to continuing to contribute to this blog. IMO, Brandon does an good job of ferreting out important cases for us to write on and I’ve enjoyed working with him on this blog.

Now on to the case de jure….Tha Dang Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

If you’d like more information about me or my practice, you can find it here: http://www.law4dfw.com/.

Stand Your Ground in the Defense of Others

I had the slip opinion in my hand.  I had finished reading the case and highlighting the parts that I wanted to pull for a blog entry.  And then I decided to click on a few links from my blogroll.  After reading John T. Floyd's blog entry, I walked over to the recycling bin and tossed the case I had just read.  I try not to blog about cases on which other bloggers have already written (and written well), save U.S. Supreme Court opinions about which everyone feels compelled to write.

I pride myself on being one of the first to publicly report opinions (published opinions, that is) from the Texas Court of Criminal Appeals.  Well, a case named Morales v. State, came out in November 2011 and it slipped through the cracks.  So today, when I saw that John T. Floyd's blog (Criminal Jurisdiction) had an entry at the top of the page titled: SELF-DEFENSE: NO DUTY TO RETREAT, I knew immediately that I had been scooped.  That's what I get for procrastinating I suppose.

To focus on the positive, at least I don't have to hammer out a blog post about the case (well, at least not a substantive post), because John T. Floyd's post is about as good as it gets.  I encourage any L&J for Y'all readers (yes, I'm delusional enough to believe we have "readers") to go check it out.  He and his paralegal have done an excellent job summarizing the case and the holding, that...

A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.

Thanks John.  I guess I'll move along to the next case, or perhaps I'll click on a few more links and see if it has already been covered by a colleague.

Introducing Social Network Electronic Evidence at Trial

Laying the foundation for the admission of evidence can be tricky.  Often quite technical.  Even hypertechnical.  Depending on what you are trying to admit, you might need affidavits, chain of custody records, etc.  With the advancement of the internet, something trial lawyers of old did not even think about, there is more evidence out there.  Good evidence.  Sometimes really good evidence. Social media sites can provide a wealth of evidence for criminal trial lawyers on both sides of the aisle.

There are Facebook and MySpace friend lists and wall posts that can establish relationships and demonstrate motive or bias. Twitter feeds.  There is also a “check-in” feature on some sites that can show where someone was at a certain time.  What’s more, if you dig deep enough (usually with the help of a subpoena) a person’s private messages on Facebook or MySpace can be a treasure trove of information.  And let’s face it, many people on Facebook and MySpace have absolutely no filter.  Evidence galore.

One of the main problems with using social network media at trial is that ANYONE can create an account purporting to be anyone else.  Just check out the purported profiles for celebrities and you’ll see for yourself.  I seriously doubt Justin Timberlake has time to manage 20 different Facebook and MySpace profiles.

So, with this significant potential for fraud, how does a trial attorney go about authenticating and admitting this evidence at trial.  You might think that you need an affidavit from the social media company and the IP logs from the computer that created the account.  Indeed, you could get that sophisticated if you like.  But you don’t have too.   At least not in Texas.

The Texas Court of Criminal Appeals recently decided Tienda v. State, a case that dealt with this issue.  At trial, the State tried to introduce pieces of evidence obtained from the appellant's purported MySpace accounts.  However, the state did not have IP logs showing which computer created the accounts or the hard drive of appellant’s computer or any other sophisticated computer evidence.  The State took the simple route.  It presented evidence obtained from MySpace showing which email address created the accounts. Then it presented evidence obtained from the MySpace profiles themselves (posts, music, photos, messages), which linked appellant (circumstantially) to the MySpace profiles.  They used a sponsoring witness that had been on the MySpace profiles and had seen the postings and pictures.  The trial court allowed the evidence over defense objection.

The CCA held that “a combination of facts…[was] sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant.” The CCA noted that under TRE 901(a), the proponent of the evidence need only make a threshold showing that would be sufficient to support a finding that the matter in question is what its proponent claims. “The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder – the jury, in a jury trial.” Electronic evidence, the CCA explained, may be authenticated in a number of different ways.  However, "simply showing than an email [or other electronic message] purports to come from a certain person’s email address…or that a text message emanates from a cell phone number assigned to the purported author…without more, has typically been regarded as [insufficient] to support a finding of authenticity."

Ultimately, the CCA held in Tienda that there is no formula for admission of electronic evidence.  Each case should turn on its particular facts and the amount of circumstantial indicia of authenticity that is present.  The CCA cited a Maryland Court of Appeals opinion and seems to adopt the Maryland Court’s rationale regarding three instances that would satisfy the test for authenticity, but notes that the methods are not exclusive.

[T]he Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods. First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.” That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant.  Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.  Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.”

While that State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury.

If you are thinking about introducing social network evidence or other electronic evidence, this case is a good one to read. As always, the war is waged at the trial level, because on appeal, the standard is abuse of discretion, which means, of course, that the trial court’s ruling is given great deference.

The Booking-Question Exception: Another Reason to Shut Up

Alford v. State - (Tex. Crim. App.) Feb. 8, 2012

Cecil Edward Alford was charged with evading arrest and detention.  While being transported to jail, Officers noticed that Mr. Alford was squirming around in the back seat.  Once at the jail, officers got Alford out of the car and searched the back seat.  As was procedure, they had searched the back seat of the squad car before their shift started to confirm that there were no items in the back seat.  After searching the back seat of the squad car following Mr. Alford’s transport to jail, officers located a clear plastic bag with pills inside and, directly under the bag, a computer flash drive (“thumb” drive).  As the jailers were booking Alford in, one of the officers took the thumb drive and held it up to Mr. Alford asking what it was.  The officer then asked, “Is it yours?” Alford claimed that it was.  At the time the jailer asked the question, Alford had not been advised of his Miranda rights.

The legal question arising from this situation is whether Alford’s admission that he owned the flash drive could be used against him at his trial.

The Court of Criminal Appeals first analyzed this case by addressing custodial interrogation and the “booking-question exception” to Miranda.  The Court recognized that questions “normally attendant to arrest and custody” or “routine booking questions” are exempt from Miranda. See South Dakota v. Neville, 459 U.S. 553 (1983); Pennsylvania v. Muniz, 496 U.S. 582 (1990).  The CCA noted that Mr. Alford’s case hinged on whether the question that the officer asked him that night was reasonably related to administrative concerns or if it was a question designed to elicit incriminatory admissions.

The defense presented case law supporting the contention that a question does not necessarily fall within the booking-question exception to Miranda simply because the question was asked during the booking process.  Specifically, the defense cited a footnote at the end of the Supreme Court’s opinion in Muniz that said, “recognizing a ‘booking exception’ to [Miranda] does not mean, of course, that any question asked during the booking process falls within that exception.  Without obtaining a waiver of the suspect’s [Miranda] rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id at 602, n. 14 (Brennan, J., plurality op.)

The CCA conceded that case law actually supported both the State and the appellant in this case.  Ultimately though, the Court held that the booking-question exception applies when the question reasonably relates to a legitimate administrative concern regardless of whether officer should have known that it might elicit an incriminatory admission.  The Court held that the Officer’s question in Alford’s case had the legitimate interest of identification and storage of an inmate’s property and that the questions regarding the thumb drive did fall within the booking exception to Miranda.

Essentially, the court decided that the relationship between the officer and Alford was not the determining factor.  Even though the Officer that asked Alford the questions was primarily responsible for the investigation, the Court still said that his question at the jail was just a booking question.  To me, this case does not provide any clarity to the booking-question exception to Miranda.  In any case, once a suspect is arrested, an officer could claim his questions are for booking purposes only, even when those questions are eliciting incriminatory admissions – and even if those questions are being asked while still in the field or at the scene.

This case just serves to reinforce what I’ve always advised folks – DO NOT SAY ANYTHING TO THE POLICE.  Of course, there are times when talking with a police officer cannot hurt, but if you are under arrest, DO NOT SAY ANYTHING, DO NOT EVEN NOD YOUR HEAD, until you have been provided an attorney.  If you must say something, say this:  "I request an attorney and will not answer any questions until I have been provided an attorney."

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.