Significant Decisions Report for February 17, 2017

Court of Criminal Appeals

The Court of Criminal Appeals had a busy week this week, with multiple published opinions. Pour yourself a steep cup of coffee and dig those heels in. There will be a test.

Wolfe v. State

The Court of Criminal Appeals, in a unanimous decision written by Judge Alcala, addressed the question of whether “abusive head trauma” testimony by an expert was sufficiently reliable. Defendant Wolfe, a licensed in-home daycare provider, was convicted for first-degree injury to a child. Three experts testified for the State on the theory that the child victim’s injuries were the result of “intentionally inflicted impact,” otherwise known as “abusive head trauma,” rather than accidental injury or some preexisting condition.

Wolfe properly objected to each expert on grounds of reliability, and complained on appeal that the court of appeals did not properly address two inquiries: (1) whether the State’s experts improperly relied upon a “constellation of symptoms” to diagnose abusive head trauma; and (2) whether the proffered expert testimony was unreliable due to the victim’s previous medical history.

Seven-month old “Jack” (a pseudonym) was rushed to the hospital after Wolfe called 911. Examining doctors found a subdural hematoma, retinal hemorrhaging, and brain swelling, the so-called “triad” of symptoms associated with abusive head trauma. Doctors also found “two older stages of blood in [Jack’s] brain as well as new bleeding.”

The State proffered three experts: Dr. Roberts, who performed the life-saving neurosurgery on the child; Dr. Ranelle, a pediatric ophthalmologist who examined the child after the surgery; and Dr. Coffman, a board-certified physician in pediatrics and child abuse pediatrics, who evaluated the child last of all. Each of the three doctors diagnosed abusive head trauma, which has disputed status in the “biomechanical world” and “medical examiner world,” but not in the world of pediatrics.

Wolfe presented the testimony of her own expert, Dr. Rothfeder, who testified that there was a disagreement in the medical community about the principles for diagnosing abusive head trauma. Dr. Rothfeder found it significant that old bleeding on the brain was observed, and questioned whether the subdural hematoma was therefore a leg of the “triad” for diagnosing abusive head trauma.

In the Second Court of Appeals, Wolfe raised only the issue of reliability. The Court of Appeals understood this objection to be to the science of abusive head traumas generally, and not to whether the diagnosis in the particular case was reliable due the victim’s medical history. Unsurprisingly, Wolfe lost that fight, as Drs. Roberts, Ranelle, and Coffman were obviously qualified to render the opinions they gave.

Any reliability determination will turn on the scientific or technical technique or practice being used and its general applicability in the relevant field. Courts are almost always using what philosopher of science Thomas Kuhn called “normal science,” that is, well settled and established principles relied upon in the relevant expert community. Kuhn’s “revolutionary science,” or science on the cutting edge which uses unproven, untested techniques or theories, may well be correct and may one day supplant “normal science” (as was the case, for example, in Einsteinian relativity supplanting Newtonian mechanics). The question for the Court of Criminal Appeals then was whether abusive head trauma was “normal science.”

The Court did so conclude, and did so based on the rulings of courts in other jurisdictions and publications of the American Academy of Pediatrics. In light of such factors, it will always be difficult to convince a reviewing court that the trial court abused its discretion in permitting an expert to testify as to “normal science,” no matter how great your revolutionary, cutting-edge idea from your expert is.

Similarly, Wolfe found no relief in suggesting that the Second Court of Appeals was wrong not to address the reliability of abusive head trauma science in this particular case. The Court of Criminal Appeals “disagree[d] with the suggestion by [Wolfe] that the court of appeals wholly declined to consider whether the experts’ opinions were reliable in applying a diagnosis of abusive head trauma to the facts of the case.” After finding that Wolfe did not adequately brief the issue before the Court of Appeals, the Court of Criminal Appeals concluded that the Second Court of Appeals was under no obligation to search the record itself and consider unassigned error of this type.

This is an illustration of the principle that when cases are tried, juries will make decisions between competing theories, often between competing experts, and absent a clear abuse of discretion by the trial court in admitting expert testimony that obviously fails to meet the definition of accepted, normal science, the jury’s decision is going to stand and be given deference by appellate courts.

Crawford v. State

Who likes a good split decision? I certainly do, because it tips me off that this area of law is going to draw more litigation in the future. In this case, the Court of Criminal Appeals considered a very interesting question – does the more-specific statute regarding enhancement of sentences for a defendant convicted multiple times of failure to register as a sex offender apply to the exclusion of the general enhancement of punishment rule in Texas Penal Code § 12.42(d)? OK, so that’s a really boring and nerdy question, but every appellate lawyer reading this just mopped a tiny bit of drool from the corner of his or her mouth. This stuff is riveting if you are the right kind of weird.

Crawford was first convicted in 1984 of sexual assault, and later required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure. In 2007 and 2009, he was convicted of the felony offenses of failing to comply with the registration program. In 2013, he was indicted again for failure to comply under Art. 62.102(b)(2) of the Code of Criminal Procedure. The indictment included an enhancement allegation under Texas Penal Code § 12.42(d). Crawford objected to the application of Sec. 12.42(d), but admitted that he had been previously convicted. The jury assessed punishment pursuant to the 25-life punishment range at 85 years. Ouch. But not unexpected; sex offenders who fail to register rarely elicit sympathy from juries.

On appeal to the Tenth Court of Appeals, Crawford claimed that Art. 62.102(c) of the Code of Criminal Procedure preempts Sec. 12.42(d). Art. 62.102(c) says that if it is shown at trial that a person charged with violating a registration-based offense has been previously convicted, the punishment is increased to the next-higher level of punishment. That would make Crawford’s potential sentenced capped at 20 years, less than a quarter of the sentence he received. Big difference.

As a general principle of statutory construction, more specific statutes control over their specific area rather than a general statute. For example, there are enhancement provisions peculiar to theft offenses, and the State may not “double dip” and use a conviction for both the theft enhancement provision and the general Sec. 12.42 enhancement provisions.

The Court of Criminal Appeals found that Art. 62.102(c) applied only to cases where there is a “single prior sex-offender-registration felony offense,” and not to situations where there were “multiple prior sex-offender-registration offenses” (emphasis in original).

And here is where things get fun for appellate nerds, in the “canons” of statutory construction (not actual cannons, though I agree that a full broadside against opposing counsel at oral argument would make one’s point in a rather dramatic fashion). Texas is just weird enough to have codified its canons of statutory construction in Chapter 311 of the Government Code, the “Code Construction Act.” This not-quite-underhanded attempt to subvert the natural power of the judiciary to adopt whatever legal fiction it would like as a “canon” of construction to cover itself into making whatever interpretation it wanted is modestly successful. But Texas Government Code § 311.026(a) does say that if a general provision conflicts with a special provision, reviewing courts are supposed to construe them in such a way to give effect to both if at all possible, and this provided the Court the excuse it needed to uphold Crawford’s lengthy sentence.

But as I said, this was a split decision. Judge Yeary, writing for the majority, was joined by Presiding Judge Keller, and Judges Keasler and Keel. Judges Richardson and Newell also joined in the majority, but Judge Richardson wrote a separate concurrence in which Judge Newell joined. Judge Walker dissented, and was joined in the dissent by Judges Hervey and Alcala.

By my count, that’s 4 judges squarely for the majority, 2 judges siding with the majority but with reservations about the reasoning, and 3 judges disagreeing. At best, this is a 6-3 decision for the majority, and probably more like a 4-2-3 decision, with no side having a clear majority.

Judge Richardson’s concurrence notes that both he and Judge Newell agree that Sec. 12.42(d) applied to this case, but note that the Legislature may well have intended the result Crawford desired, and might so reform the statute. Judges Richardson and Newell might be tempted to see Art. 62.102 as merely bad drafting of the Legislature’s intent.

Judge Walker correctly points out that other sections of the Code Construction Act could lead to Crawford’s intended result – the Legislature did intend for Art. 62.102(c) to be the sole enhancing statute for failure-to-register offenses. Judge Walker would hold that since Art. 62.102 was adopted later than Sec. 12.42(d), the drafters of Art. 62.102 were aware of Sec. 12.42 and thus intended for Art. 62.102 to trump Sec. 12.42. This author cautions against assigning any degree of rationality or even sensibility to the Texas Legislature, an august body whose every meeting was described by the great sage Molly Ivins as a “catastrophe.”

Regardless of what the Legislature actually intended, the current state of the law is that your multiply-failing-to-register clients are susceptible to enhanced punishment of twenty-five to life in the hole, so think about that before rejecting a plea bargain for under twenty years. However, without a clear agreement of at least five judges as to what the Legislature did mean to do, this issue is ripe for more hollerin’ about in Austin in the coming years.


Roy v. State

How about one where the good guys (that’s us, take a bow!) win? In Roy v. State, Judge Keasler delivered the opinion of a nigh-unanimous court (only Presiding Judge Keller dissented, without a separate opinion) that there was “more than a mere scintilla” of evidence raised at trial warranting the submission of a lesser-included offense. Chalk one up in the “W” column, lads.

Your own august author knows well the sting of having a lesser-included offense instruction denied to the detriment of his client (and is still awaiting the decision of the Court of Appeals, though, freshly armed with this new case, I do not fear the outcome). But let us leave that case alone and turn to the case of Mr. Roy.

Roy and his girlfriend were out for a drive when Roy lit up a “dip cigarette,” a descriptive term for a cigarette dipped in phencyclidine, better known as PCP or “angel dust” in its solid form. This caused Roy to begin to drive erratically, and tell his girlfriend, “Oh, you’re scared? I’m going to kill both of us!” As a general rule, it is not advisable to announce such an intent, but there is nothing more helpless and irresponsible than a man in the depths of a PCP binge. Roy drove his vehicle toward cars stopped at train tracks, hitting one car and killing a passenger in that car.

At trial, Roy testified he blacked out while driving and had no memory of the crash. When tested, Roy’s blood contained benzodiazepine (e.g., the class of drugs that includes Xanax or Valium), PCP, and tetrahydrocannabinol (marijuana, or as the Legislature believes it to be spelled, “marihuana”), as well as a small amount of alcohol. Now, I’m afraid of blood and needles, so I had to become a lawyer and not a doctor, but even I know that a cocktail of benzos, PCP, pot, and booze will knock your ass flat out. So it could very much be said that Roy knew, or should have known, about the risk his conduct posed to him and everyone else in his vicinity, but so strong was his desire to get lit that he disregarded that risk.

The State charged Roy with murder, however, meaning that they were required to prove that Roy intentionally or knowingly tried to kill someone. Roy requested a lesser-included offense instruction on manslaughter, based on the theory that he is just an idiot, not a malicious murderer, which the trial court denied. Roy was convicted of murder, as will happen in these situations, and sentenced to seventy-five years. But the test for whether you are entitled to an instruction on a lesser-included offense is twofold: (1) is the proposed lesser-included offense actually a lesser-included offense, and (2) have you produced more than a mere scintilla of evidence from which a rational jury could find you guilty only of the lesser-included offense.

It’s a well-settled fact that manslaughter and criminally negligent homicide are lesser-included offenses to murder. So the only question was whether Roy had produced a minimum quantity of evidence necessary for the instruction. Roy’s testimony at trial entitled him to a lesser-included offense instruction, because, no matter how fantastical his tale, the jury could have believed Roy that he consciously disregard the risk that driving around with a pharmacy’s worth of drugs in his blood would cause an issue, and disbelieved the State’s evidence that Roy announced his intention to kill someone while driving, or that the outburst by Roy was mere hyperbole, or any number of other theories. The test is not whether the jury might have believed the evidence of the lesser-included offense, but whether any evidence raised that possibility. And the evidence almost always does.

Let this be a lesson to the trial courts and the State – opposing lesser-included instructions is a very stupid way to get your case reversed and have to retry it. If you have the confidence of your evidence and your case, give the defense their requested lesser-included offense instruction. In this case, I think most any jury in this state would have convicted poor Roy of murder, what on account of the drugs and the saying he was going to kill someone. By arguing against, and denying, the lesser-included instruction, the State and trial court shot themselves in their respective feet.

White v. State

Does the “drug free zone” statutory enhancement to delivery of a controlled substance require that the defendant knew he picked a drug free zone to do the dirty deed? The answer is “no.” The statutory provision (Health & Safety Code § 481.134(d)) does not contain any such language.

But what about Texas Penal Code § 6.02(b)? This is another one of those tricky “how to interpret statutes” statutes that the Legislature makes because legislators do not trust judges, the same as judges do not trust legislators to know how to do their business. Rather than simply amending an ambiguous statute, our Legislature would rather create meta-rules for statutory interpretation so that the Courts can give effect to what the Legislature obviously intended but obstinately refused to say. Again, a “catastrophe” every time they meet.

Nevertheless, Sec. 6.02(b) does state that in the absence of clear intent to do away with a culpable mental state provision, reviewing courts are supposed to read one into the statute. Hey, that’s pretty clear, right? White wins, he did not know he was in a drug free zone, do not enhance him?

Wrong again, friends. The Court concludes that Sec. 6.02(b) applies to primary statutes, not statutes which provide enhancing or aggravating factors.

The Court of Criminal Appeals goes further and notes that in statutes protecting children, such as statutory rape offenses, the Court has declined to impose a requirement that the actor know the child is younger than 17. While true, this reasoning is much less persuasive than the fact that Sec. 6.02(b) probably does not and should not apply merely to aggravating-factor statues rather than primary offenses. But “think of the children!” is as good a rallying cry as any, and the Court of Criminal Appeals went with it, so be aware that such provisions will be interpreted broadly and not in favor of our clients.

Shimko v. State

In an unpublished opinion, the Court of Criminal Appeals considered whether acquiescing to a police officer’s wave in a parking lot was a “seizure” within the meaning of the Fourth Amendment. The facts of this case are strange, so bear with me.

Scott Williamson was a patron of Little Woodrow’s Pub in north Austin. Williamson was drunk and staggering around the parking lot, where four law enforcement officers were present. The officers graciously decided not to arrest Williamson for public intoxication because Williamson said he had a ride on the way (driven by Shimko). Ostensibly for Williamson’s safety, the officers had Williamson sit down. The officers noticed Shimko circling the parking lot, at which point Williamson said, “Dude, there’s my car.” Believing that perhaps Shimko could not see Williamson, as Williamson was supine, officers flagged Shimko to stop, found him to be intoxicated, and arrested him.

Finding that Shimko’s encounter with officers was a consensual one, the Court had to consider whether “a reasonable person in [Shimko’s] position would have felt free to ignore Deputy Ford’s request or to terminate the consensual encounter.” Finding that the facts of the case were unique, the Court of Criminal Appeals declined to apply any “community caretaking” function and said that this encounter was purely a voluntary encounter between police and citizens.

Judges Hervey, Keel, and Walker joined Presiding Judge Keller in dissent. The dissenters felt that a reasonable person in that situation would not have felt free to leave and would have been compelled to stop when an officer flagged them down. However, the dissenters would also have remanded the case to consider whether Deputy Ford was engaged in community caretaking.

I would be careful to read too much into the dissent. It is likely that every dissenter would have upheld the conviction on the community caretaking rule, resulting in no relief to Mr. Shimko. Regardless, this case is unpublished and of no precedential value.

Johnson v. State

Mr. Johnson, also known as “Kevin Kimp,” got himself convicted of robbing a RaceTrac convenience store using a butter knife (pro-tip: unless you’re robbing a buffet of its delectable hors d’oeuvres, pick a better criminal instrument than tableware. You don’t want to be the guy on the cell block who held someone up with a shrimp fork.). The question for the Court was then whether a butter knife, in the manner of its use or intended use, was a deadly weapon. As I have stated in this space before, Texas’s jurisprudence on what is and what is not a deadly weapon varies largely from case to case and is more results-driven than principled. The Court of Criminal Appeals found that a reasonable person in the cashier’s shoes would feel threatened by someone yelling “back the fuck up” at them while waving a knife, even one with a rounded tip and where the cashier could not identify it as being sharp. That is probably true. The fact of brandishing the knife, in proximity to the cashier, rendered it “capable of causing serious bodily injury or death.” This author notes that at the point where a butter knife is considered a deadly weapon, almost anything is a deadly weapon, except maybe a stuffed animal.

Deen v. State

Oh, Mr. Deen. Mr. Deen was placed on deferred adjudication after pleading guilty to aggravated robbery and possession of cocaine. Mr. Deen had his offenses adjudicated, and was sentenced to four years of incarceration. “Now wait just a gol-darn minute,” I hear. “Agg robb is a first-degree felony, and the minimum sentence for that is five years!”

Yes. You are correct. Mr. Deen received an illegally lenient sentence.

So Mr. Deen skates his way out of the TDCJ after only three years and three months in. Thirty days after that, Mr. Deen was caught with cocaine again, a state jail felony amount. The State sought to enhance Deen’s sentence with his prior felony conviction for aggravated robbery, which turned that state jail felony into a third-degree felony. Mr. Deen received a new sentence of four years in the TDCJ.

On appeal, Mr. Deen claimed his robbery conviction resulted in an illegal sentence, and it was therefore void, and his prior conviction was not available to enhance the current offense. The Eleventh Court of Appeals reversed, and remanded the case for a new punishment hearing.

The State of course sought discretionary review, arguing that Mr. Deen was estopped from denying his previous robbery conviction because he accepted the benefit of the illegally lenient sentence (totally, 100% true) and because Deen pleaded “true” to the enhancement provision (totally, 100% not a good reason for upholding a sentence!).

The Court of Criminal Appeals realized that Mr. Deen faced a harsh choice – accept the benefit of his illegally lenient sentence, or complain about it at any time prior to his early release. The Court recognized it would not be in Mr. Deen’s interest to do so, but likewise, absent a complaint from someone else about it, Deen was free to accept that benefit. Meaning, when Deen got released from prison earlier than legally permitted, he should have taken it as a sign that someone up there loved him and turned his life around, not waited 30 days before diving back into cocaine abuse. The Court did not address the “estoppel-by-pleading-true” theory, a kind of contractual estoppel, and nor should they have. The record was incomplete as to whether the four-year sentence was the result of a plea bargain, and absent such a plea bargain, Deen’s plea of “true” would not bar him from attacking the sentence as based on a void prior judgment.

Judge Alcala dissented, claiming that estoppel was not an appropriate theory in this case because Deen did not bargain for his illegally-lenient sentence. Judge Alcala focused on whether Mr. Deen actually knew he was accepting an illegally lenient sentence (doubtful). By pulling in principles from civil law, Judge Alcala is able to somewhat convincingly argue that unless Deen understood that he was accepting the benefits of an illegal sentence, he cannot later be estopped from challenging its validity.

At tension here seem to be two principles: one, that Deen seems to be “double dipping” in receiving the benefit of an illegally short sentence for a crime of which he was guilty, and then attacking the fact that he had a conviction for that at all. On the other hand, it is not Deen’s fault that the State is often sloppy or shoddy in charging, convicting, and sentencing criminal defendants, and why shouldn’t the State bear the risk of mucking things up? Judge Alcala is correct in that the new rule sounds a lot like a “preservation-of-error” rule rather than an estoppel rule.

But I can see where the tension exists, and something about giving Deen the benefit of his illegal sentence and then allowing him to attack it as void tickles my moral sense in the wrong way. However, I also think it is not Deen’s fault that the original sentence was bungled, and a void or voidable sentence is a void or voidable sentence, and as with baseball, the tie should go to the runner. It is a thorny issue, and for what one poor attorney’s commentary is worth, Judge Alcala’s opinion does seem the better-researched of the two.

What lessons can be gleaned from the case of Mr. Deen? Double and triple-check those judgments. If the State wanted to give Deen only four years, they could have plead him to a lesser-included or let him be adjudicated only on the lesser offense, letting him discharge that robbery conviction on deferred while in TDCJ on the possession.

State ex rel. Jennifer A. Tharp

This is a case to watch. It is an order filing and setting a writ of mandamus. The real party in interest seeks to compel the respondent, Comal County District Attorney Jennifer Tharp, to transcribe children’s advocacy center interview videos. The trial court ordered the videos transcribed; the State objected that Code of Criminal Procedure art. 39.15 forbids that (aside: it probably does forbid making a copy or a transcription). The Third Court of Appeals refused to issue the writ of mandamus, effectively telling the State to transcribe it. The State filed a subsequent mandamus petition in the Court of Criminal Appeals, as was proper, and the Court has requested briefing. Expect a decision on this case very soon, and this is one of those decisions for the ages. I know it is a constant battle to attempt to get a copy or a transcription of CAC videos as a defense attorney, and I fully understand why we want them. However, as I read Art. 39.15, we may not be entitled to that. The wisdom of such a prohibition is one for the Legislature and not for the courts. Still, it could be interesting if the Court finds a Sixth Amendment right for our clients to have possession of transcriptions or copies of CAC videos. Keep your eyes on this case.

Fourth Court of Appeals

In Ex parte Rodriguez, No. 04-16-00337-CR, the Fourth Court of Appeals considered whether prostitution under the Texas Penal Code and a San Antonio municipal ordinance against “loitering for the purposes of prostitution” were such that double jeopardy barred a conviction for both. Utilizing the “same elements” test, the Court concluded that, no, one may be convicted for both prostitution and loitering with the intent to commit prostitution. In particular, the ordinance required a defendant to loiter in a public place, none of which are required for prostitution under the Penal Code, which requires only an agreement to exchange sexual conduct for remuneration.

Seventh Court of Appeals

Our brethren in the Panhandle wrote a trio of deeply divided opinions this week in Hoff v. State, No. 07-15-00012-CR. Justice Pirtle, writing the “majority” opinion (insofar as an opinion of one justice, joined in concurrence in the result by another justice is a majority opinion). He was joined in concurrence by Chief Justice Quinn, who joined the reasoning as to part I, but not as to part II. Justice Campbell likewise filed a concurring and dissenting opinion, concurring in part I, but disagreeing with both in regard to part II.

Mr. Hoff was convicted for tampering with evidence following a plea of guilty, and given imprisonment ten years probated for ten years’ probation as a sentence. He contended on appeal that the trial court ought not have denied his motion to suppress on two grounds: (1) insufficient probable cause to support the issuance of a warrant; and (2) a violation of Art. 38.22 of the Code of Criminal Procedure.

Hoff’s first issue, what I am calling part I, was raised and rejected in an unpublished memorandum opinion stemming from Hoff’s conviction for possession of a controlled substance. See Hoff v. State, No. 07-15-00011-CR (Tex. App.—Amarillo Jan. 31, 2017, no pet. h.). There, Justice Campbell write for a unanimous court, and the same rationale applied to the instant case, so all three justices rejected Hoff’s first issue as being already decided in another case.

Regarding part II, however, the majority opinion acknowledges that “three well-intended, open-minded, respectfully educated justices have looked at the same (relatively straight-forward) issue and reached three entirely different conclusions.” This, ladies and gentlefolk, is what we appellate nerds call a “gold mine.” At issue is whether Hoff is entitled to suppression of statements made as a result of an interrogation. Justice Campbell believes the interrogation was custodial, and therefore, that the statements should be suppressed. Chief Justice Quinn, assumes that the oral statements made by Hoff were the result of custodial interrogation, but concludes that any error was harmless. Justice Pirtle, on the other hand, believes that the statements in question were not the result of a custodial interrogation. However, since Justice Pirtle and Chief Justice Quinn agree that the judgment of the trial court should be affirmed, Hoff’s relief is denied.

The facts are thus: during the execution of a search warrant, Hoff was found in the bedroom of the home being searched. When officers got into the room, they saw Hoff swallow something. They also observed, in plain view, a controlled substance that was used to secure Hoff’s conviction for possession. Hoff was arrested and read his Miranda warnings, and then questions were asked. Hoff told the police that he had swallowed some meth. At trial, the officer to whom the statements were made was unhelpfully vague about whether he was asking Hoff about the swallowed dope for reasons of medical treatment or law enforcement. Crucially, no recording of this statement was made, and Art. 38.22 says that a statement made as the result of custodial interrogation without a recording made is inadmissible.

The sole question for part II then is whether Hoff was under custodial interrogation after having been arrested and read his Miranda rights. Justice Pirtle says no; Chief Justice Quinn assumes yes but does not care, and Justice Campbell says yes.

Who is right? Beats me! Justice Campell is obviously correct in that any reasonable person would have to say that Hoff was in custody after being arrested and Mirandized. But Justice Pirtle is correct in that the record does not adequately demonstrate that the interrogation was custodial, because Officer Ragan left it vague and Hoff’s trial counsel did not clear the issue up. Justice Pirtle’s ruling is based off deference to the trial court’s resolution of fact and applying the unfavorable “abuse of discretion” standard. In terms of applying the law and the appropriate standard of review, Justice Pirtle is correct.

I have my issues with the “harmless error” analysis, and while I do not agree with Chief Justice Quinn that the statement was harmless, I do see the argument the Chief Justice is making – officers walked in on Hoff swallowing dope. While I find it hard to believe a rational factfinder would ignore this observance, the fact of the matter is that Ragan’s testimony went directly to Hoff’s alleged intent to destroy evidence, which is probably the best defense Hoff had (“I didn’t swallow the drugs to tamper with them; I just wanted to eat some dope and get high! I’m an idiot, not an evidence-destroying criminal!”). So I would not hold the evidence harmless, but I do recognize that many learned justices would, and believe that reasonable people may disagree on this point.

Can anything be learned from this opinion? Yes. It is that we ought to all be as charitable to people with whom we disagree as were the justices of the Seventh Court of Appeals were to each other. Three different jurists; three different results; three very good points. On the balance of it, I think that Justice Pirtle is probably correct. Whatever Campbell and Pirtle might have thought about whether it was a custodial interrogation, the trial court obviously did not, and deference to factual findings by the fact-finder is a well-enshrined position in our appellate system that, for good reasons, ought not to be disturbed.

Fourteenth Court of Appeals

The case of Straight v. State, No. 14-15-00801-CR illustrates a difficult situation for defendants. Mr. Straight was convicted of evading arrest, and on appeal, complained that the trial court erred by paraphrasing the jury charge, as well as ineffective assistance of counsel. The trial judge did significantly “paraphrase” three key pieces of the jury charge – on the presumption of innocence, the defendant’s right not to testify, and by implying that the jury must reach a verdict. The Court of Appeals acknowledged that Straight did receive a constitutionally deficient reasonable doubt instruction, but found that Straight did not show “egregious harm” from it. “Egregious harm” as defined by the courts means: one that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. See Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). “Now hold on just a minute,” someone is saying. “What could affect the very basis of the case more, deprive the defendant of a valuable right, ‘vitally affect’ a defensive theory more than a bad instruction on reasonable doubt?” And to that rhetorical question, I have no answer. I certainly do happen to think that all three of those vague, weasel-y statements that make up the definition of “egregious harm” would be met by a constitutionally-deficient reasonable doubt instruction. The Court of Appeals felt differently, however, because the jury did receive a correct instruction in the written charge, and did correctly state that trial counsel failed in his or her duty to object at the time.

Which leads me to my second point – ineffective assistance of counsel is probably not something we should raise on direct appeal, maybe ever. However, in this case, Straight’s appellate counsel did the correct thing by filing for, and presenting, a motion for new trial alleging ineffective assistance of counsel and creating a proper record. However, even that record can sometimes be insufficient in a way that the much wider record available on a writ is not. Witness: Straight raised several issues for the first time on appeal that were apparently not developed in the motion for new trial. Had Straight simply not raised ineffective assistance of counsel at all, and waited until his writ proceeding to do so, he would have been able to complain about trial counsel’s failure to object to the misreading of the jury charge or other failures to object by trial counsel.

Now, however, Straight is probably going to be procedurally barred from doing so. Claims raised and rejected on direct appeal are typically not available to be raised on habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). If the court of appeals rejects an ineffective assistance of counsel claim on direct appeal, the defendant may not re-urge it on habeas corpus review unless he “provides additional evidence to prove his claim.” Id. That’s a tough row to hoe for someone likely incarcerated in prison and dealing with trial counsel who will demur and say, “I don’t remember why I didn’t object.” The smarter move is almost always to wait until the defendant files a writ to raise claims of ineffective assistance of counsel, because the ability of the trial court to act as factfinder is broader than in a motion for new trial. The motion for new trial can still be used to develop the record, but I would think very deeply upon raising the issue of ineffective assistance of counsel on direct appeal, bearing in mind that a loss in the court of appeals could prejudice your client ever raising that claim again, absent a presentation of “new evidence.”

In Lopez v. State, No. 14-16-00247-CR and No. 14-16-00248-CR, the Fourteenth Court of Appeals discussed the application of Code of Criminal Procedure art. 42.08 and cumulation orders. There, Lopez was convicted of a retaliatory sexual assault of his girlfriend’s pre-teen daughter in two separate cases that were tried at the same time. He received two twenty-year sentences, and the trial court orally pronounced sentence saying sentence A would run to completion before sentence B began, but in the written judgment, stated that sentence B would run first, followed by sentence A. Lopez suggested this made the cumulation order void; however, there being absolutely zero authority for such a proposition, the Fourteenth Court of Appeals was not persuaded, and nor should it have been. The Court of Appeals merely reformed the judgments to conform to the oral pronouncement, so now at least Mr. Lopez has the satisfaction of knowing that his multiple 20-year sentences will be served in the correct order.

During the punishment phase, the State offered what it called “same transaction contextual evidence” (id est, stuff Rule 404(b) probably should keep out but it’s just so darn probative that the judge wants it in). This evidence consisted of Lopez’s physical and sexual assault of his girlfriend, the complainant’s mother; Lopez’s threats, made before the incident, to kill the complainant’s family; Lopez’s threats, made during the incident, to kill the complainant’s family; and Lopez’s threats to harm the complainant’s father. The punishment charge did not include an instruction that these extraneous offenses must be proven beyond a reasonable doubt.

The trial court must give a reasonable doubt instruction even if the defense does not request it (but we are all going to be conscientious and good attorneys and request it, so some snotty appellate lawyer writing a blog post does not make fun of us in print for forgetting to do so, right?). But, as with Mr. Straight’s case above, the failure to give the instruction is not a problem unless it “egregiously harmed” Mr. Lopez.

The Court of Appeals went one step further than simply using a harmless error analysis to sweep a mistake under the rug. They said it was not error to fail to give the charge at all, because “same transaction contextual evidence” is not extraneous offense evidence, because it “simply explains the circumstances of the offense.” Ordinarily, I might point out that any of the listed “same transaction contextual evidence” could and likely would form the basis of a charge against one of our clients, and it damn well ought to be considered “extraneous offense” evidence if it could. The Court of Appeals noted my hypothetical objection, however, but stated that the evidence:

although separate offenses, imparted to the jury information essential to understanding the context and circumstances of the charged offenses. The evidence explains: (1) [Lopez’s] motive for sexually assaulting complainant; (2) why complainant was inside [Lopez’s] bedroom moments before he sexually assaulted her; and (3) how complainant was forced into complying with appellant’s demands during the sexual assault. Although legally separate offenses, they were blended or interwoven with the charged offenses.

(slip op. at page 8). In my estimation, this turns the protections of Rule 404(b) into a nullity if the State can show that the extraneous offenses formed part of the same criminal episode. If the State wished to present that evidence to the jury, it should have charged Lopez with terroristic threats in addition to sexual assault. I understand that the State does not wish to appear to “overcharge” a case to avoid a jury having some sympathy for the defendant. I also understand that criminal defendants have rights to have their case decided based on the conduct for which they are being charged, and not extraneous offenses. There is a tension there, and I might have decided this issue differently than Justice Brown, but this is one of those areas where reasonable people may differ in their interpretation and application of the law. Nevertheless, this is a published case, and we should all be aware that extraneous offenses that occur within the same criminal episode as the case we currently defending can likely be put before the jury.

About Lane A. Haygood

Lane A. Haygood is a board-certified criminal appellate lawyer who practices throughout the State of Texas. Contact him at