Significant Decisions Report for May 12, 201

Pithy introduction related to current events of the time of year, followed by pseudointellectual literary reference that three people will get. Flat excuse for there being so few cases this week; deflection of blame to courts of appeals for not issuing more opinions. Generic exhortation to dig into this week’s cases. It’s time for the Significant Decisions Report!

Fifth Court of Appeals

In Garner v. State, No. 05-16-00707-CR, the Fifth Court of Appeals was faced with a really heartbreaking case. Our defendant has been in and out of the prison system since 1980 on a variety of child-sex charges. The defendant’s daughter A., was removed from the household when she was approximately 4 years of age, but reconnected with her father as an adult with two children of her own. In December of 2014, faced with financial issues, A. moved back in with her father and his new wife, Pam.

Sadly, the pattern of abuse continued, with the defendant abusing his granddaughter, and he was convicted of continuous sexual abuse of a child under the age of 14.

On appeal, the defendant challenged the sufficiency of the evidence, but as with most such challenges, since there was some evidence of every element, he was not successful. He also argued that the trial court erred in permitting a criminal district court magistrate to preside over jury selection. Texas Government Code § 54.306 permits a district court judge to “refer to a magistrate any matter arising out of a criminal case” for various reasons, including “any other matter the judge considers necessary and proper,” but not to preside over a trial on the merits. Texas Government Code § 54.308 then lists the powers of a magistrate to act under Sec. 54.306, which is very broad and permits the magistrate to do many things, including “do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.”

However, “trial on the merits” designates the state of trial where the substantive facts of the case are presented to the factfinder. See Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004). The Fifth Court has construed this, in prior, unpublished opinions, to mean “when the jury is impaneled and sworn.” The Court of Appeals concludes that “trial on the merits” is a legal term of art with a specific meaning, and voir dire proceedings just ain’t part of the trial on the merits.

The Fifth Court of Appeals notes that this conclusion apparently contradicts rulings from the Second Court of Appeals, leading to a circuit split and a high probability that the Court of Criminal Appeals will want to review this issue to decide between them, though for my money, it does seem like Sanchez compels the conclusion of the Fifth Court of Appeals.

In his third issue, the defendant contended that the magistrate who presided over voir dire erred by limiting defense counsel’s ability to question the panel during voir dire with one of our dreaded “commitment” questions. If, at this point in your practice, you have not read Standefer, you have to do so right now. The Significant Decisions Report will wait for you; it is eternal.

The question at issue was phrased: “Will you make the State prove their case, this indictment, beyond a reasonable doubt, even if you might hear about some prior felony conviction?” As an aside, this is a terrible voir dire question. The better way to ask this, and the way that probably is not going to get an objection, is to say, “Many people out there would have a really hard time setting aside the fact of a prior conviction if they heard the defendant had one. Ms. So-and-So, there in the front row, what do you think about that?” And once you get Ms. So-and-So talking about what she thinks about prior convictions, if she says, “I could not set that aside,” that is when you pin her down for a challenge for cause – has that always been your opinion? Even if the judge said to you, “ma’am, you are telling me that even if the judge instructed you not to consider the fact of a prior conviction for any improper purpose,” you could not do so? You do not, I repeat, not, ask it the way it was asked here.

Why? Standefer. The question posed was an improper commitment question “because it asked prospective jurors to refrain from deciding the issue of guilt based on the fact of a prior felony conviction” (slip op. at page 17). The question, as worded “added more facts than were necessary to test whether a prospective juror was challengeable for cause” (id.). Standefer says that is a big no-no. Seriously. Go read Standefer.

Eighth Court of Appeals

Let’s leave aside cases with tough facts and go to ones with tough law. This week, the Eighth Court of Appeals decided a very cool writ of mandamus case in In re Martin Borunda, Relator, No. 08-17-00296-CR. Yes, Virginia, there is such a thing as a cool mandamus case.

In this case, Mr. Borunda got himself a speeding ticket. Like a true hero, he pleaded no contest before the justice court and filed an appeal to the county court. While the case was kicking around the county court, the DA filed an “application for a writ of procedendo” (that’s a real thing) arguing that because Borunda did not timely perfect his appeal bond, the case should be dismissed from the district court back to the justice court for summary disposition. Yowza.

The county court agreed with the State and dismissed the appeal. Borunda waited a year, then filed an application for a writ of mandamus in the district court, alleging that the district court should direct the county court to correct its mistaken ruling, and arguing that Texas law did not provide him any other avenue to challenge the county court’s ruling (nota bene: this is not true; he could sought mandamus directly from the Eighth Court of Appeals at that time). The district court dismissed the petition, and Borunda appealed to the Court of Appeals, who also dismissed for want of jurisdiction because appellate review of mandamus actions is limited to civil cases.

So Borunda went back and filed yet another mandamus, this time in the Eighth Court of Appeals, challenging the district court’s refusal to address the merits of the mandamus petition.

The Eighth Court of Appeals conducted a survey of the law, and found that the District Court did have jurisdiction to consider a writ of mandamus filed against the county court, and the case is sent back to the district court for consideration.

I find this issue interesting because I do not think the State was correct to file an application for writ of procedendo (what, you didn’t think I was going to Chekov that gun and not explain it, did you? Fie and shame, readers! Fie and shame.). A writ of procedendo is an extraordinary writ which returns a case from an appellate court to the trial court. Texas Government Code § 26.051, which describes the writ powers of a constitutional county court (like the one who issued the writ of procedendo in this case) does not grant the power to issue procedendo writs to constitutional county courts. The Court of Criminal Appeals has the power to issue them, but not, apparently, constitutional county courts. So let us stay tuned to see how the next chapter in the Borunda saga.

Ninth Court of Appeals

In a cautionary tale from an unpublished memorandum opinion, we learn that it is always important to object to a mistrial when the Court grants one sua sponte. In Garrels v. State, No. 09-17-00038-CR, the defendant objected, after the jury was sworn, to the State’s proffer of expert testimony as untimely. The State admitted it had not disclosed the expert in a timely fashion, but argued that there was no surprise to defense counsel, and in the alternative that the appropriate remedy would be a continuance. Defense counsel objected to the continuance, but did not request a mistrial. The Court granted the mistrial, stating “I’m just going to grant a mistrial on my own. Y’all can deal with it and decide what to do going forward.” The prosecutor asked the judge to make findings “related to manifest necessity” to prevent a double jeopardy challenge. Good job, prosecutor! But the judge did not state he was granting the mistrial for manifest necessity, so the prosecutors exhortation fell short of its intended goal. Ms. Garrels’ defense counsel stayed silent at this stage.

Garrels then filed an application for a pre-trial application for a writ of habeas corpus alleging double jeopardy. Also a good move, but Garrels forgot one very important thing – one can consent to a mistrial by staying silent. And because her attorney did not object to the grant of the mistrial, Garrels was deemed to have consented to it, and she cannot raise double jeopardy as a bar to prosecution.

What should defense counsel have done here? Objected to the mistrial – “Judge, I hear what you are saying, but we don’t think a continuance is appropriate in this situation because it was the State’s fault it did not disclose this information to us in a timely fashion. We do not believe there is a manifest necessity for a mistrial, and we object to it and a continuance.” If the judge grants the continuance, then so be it – good luck to the State seating a jury panel when they are brought back in over a month later. If the judge overrules your objection and grants the mistrial anyway, hey, well, now you probably win your appeal on the double jeopardy writ.

Fourteenth Court of Appeals

In Fisher v. State, No. 14-16-00108-CR, the Fourteenth Court of Appeals considered an issue regarding a pre-trial photographic lineup. One of the key factors the victim’s memory of the robbery was that the assailant wore a red hooded sweatshirt. In the photographic array, the defendant was the only one wearing a red-hooded sweatshirt. However, Texas case law is against the defendant here – similar clothing being worn by a person in the lineup is not impermissibly suggestive. Therefore, the defendant’s challenge failed at the first step of the analysis, and his conviction was affirmed.

Next, and more interestingly, we have a free speech case! In Ex parte Dillon Travis Moy, No. 14-16-00420-CR, the appellant challenged the constitutionality of Texas Penal Code § 33.021(c), the “online solicitation of a minor” statute. This particular statute has a long history of being challenged on constitutional grounds, and since it is near and dear to my heart, we are going to discuss it a bit (full disclosure: the attorney for the appellant in this case, a colleague of mine, and I have actually sparred on this very issue in the courts of appeals, so I am keen to see the Court of Criminal Appeals take it up and put the issue to rest).

The primary issue in these types of cases is whether the statute is a “content-based” restriction; if so, then the burden is on the State to prove its constitutionality, as content-based restrictions on speech are presumed invalid. The State typically responds (as I did, when I was a prosecutor) that dicta from the Court of Criminal Appeals’ opinion in Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013) that Sec. 33.021(c) affects only the “conduct” of seeking to engage in sexual intercourse with a minor. The frequent rejoinder to this argument is that conduct is still speech if it is expressive; the Fourteenth Court of Appeals acknowledges this, and acknowledges the dictum from Lo, but finds that “judicial dicta from the Court of Criminal Appeals, as a deliberate and unequivocal declaration of criminal law, is binding” on an intermediate court of appeals. Murray v. State, 261 S.W.3d 255, 257 (Tex. App.—Houston [14th Dist.] 2008). The Fourteenth Court of Appeals also cites to a recent decision from the First Court of Appeals, Wheeler v. State, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d), where the First Court of Appeals held that Sec. 33.021(c) regulates “only conduct and speech that is not protected under the First Amendment.” Notice the vacillation there between “conduct” and “speech.” Is the activity at issue in Sec. 33.021(c) conduct or speech, courts of appeals? We are dying to know.

This is the issue that the Court of Criminal Appeals must address, and one that implicates a number of free-speech cases (including some that your author is in in the middle of arguing before the Courts of Appeals). On the one hand, courts are bound and determined to make sure that people cannot have sexually explicit chats with minors (or those they think are minors) online with the intent of causing those minors to engage in impermissible sex acts. And while it is certainly not protected speech to engage in a sexual act with a minor, it does sort of beggar belief that courts keep buying the argument that Sec. 33.021(c) is “content-neutral.” After all, we must look to the content of the expressive act to determine whether it is illegal. It would, for example, be illegal to provide factual information about sex to a minor; if that were the case, every sex education class in Texas high schools would be a ripe ground for felony prosecutions. So, to distinguish between permissible educational sex-talk with minors, and sex-talk aimed at enticing the minor to commit a crime, we must necessarily look at the content of the communication, meaning the courts of appeals should stop punting on the issue of whether Sec. 33.021(c) is a content-based restriction, or certify that question to the Court of Criminal Appeals, because by my count, we now have at least three cases where this issue has arisen, and the most recent one features the Fourteenth Court of Appeals dodging the question by saying they are bound by dicta.

I don’t know if changing the classification of Sec. 33.021(c) from content-neutral to content-based would compel different results regarding overbreadth and vagueness challenges. Certainly, I am not fan of the drafting of the Texas Legislature on any number of issues, but I see what offenses the Legislature is trying to address, and continually worry about government overreach, especially in the area of free speech.

It is important to note that the issue of the constitutionality of Sec. 33.021(c) is actually on appeal with the Court of Criminal Appeals right now in Leax v. State, on appeal from the Ninth Court of Appeals. Oral arguments have been presented in that case, and we now eagerly await the opinion, hoping that it will answer these questions for us (and perhaps provide further guidance on related issues).

About Lane A. Haygood

Lane A. Haygood is a board-certified criminal appellate lawyer who practices throughout the State of Texas. Contact him at http://www.haygoodlawfirm.com

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